616 DECISIONS OF THE NATIONAL.LABOR RELATIONS BOARD
United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the
United States and Canada, AFL-CIO, and its
Local, Pipefitters Local Union No. 589 (L & S
Plumbing and, Heating of Hibbing , Inc.) and
Joseph A . Lendacky , Chief Executive Officer, L
& S Plumbing and Heating of Hibbing, Inc.
Case 18-CB-1718
May 31, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On March 16, 1988, Administrative Law Judge
William J. Pannier III issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief. The Respondent filed cross-excep-
tions, a supporting brief, and a brief in response to
the General Counsel's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondents, United As-
sociation of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United
States and Canada, AFL-CIO, and its Local, Pipe-
fitters Local Union No. 589, St. Paul and Virginia,
Minnesota, respectively, its officers, agents, and
representatives, shall take the action set forth in the
Order.
' The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
In affirming the judge's finding that the International was liable for the
discipline imposed on Joseph Lendacky, we rely on the credited evidence
showing that when the International affirmed the Local's imposition of
discipline it had information sufficient to put it on notice that the Local
was fining an employer-member for working with the nonunion members
whom he employed We therefore find it unnecessary to rely on any
theory of per se liability, i e , liability for approval even in the absence of
such knowledge
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge. I
heard this case in Hibbing, Minnesota, on November 18,
1987. On September 30, 1987, the Regional Director for
Region 18 of the National Labor Relations Board (the
Board) issued a complaint and notice of hearing, based
on an unfair labor practice charge filed on May 26, 1987,
amended on July 8, 1987, and again on September 30,
1987, alleging violations of Section 8(b)(l)(A) and (2) of
the National Labor Relations Act (the Act). All parties
have been afforded full opportunity to appear, to intro-
duce evidence, to examine and cross-examine witnesses,
and to file briefs. Based on the entire record, on the
briefs filed on behalf of the parties, and on my observa-
tion of the demeanor of the witnesses, I make the follow-
ing
FINDINGS OF FACT
I JURISDICTION
At all times material, L & S Plumbing and Heating of
Hibbing, Inc (the Employer) has maintained an office
and place of business in Hibbing, Minnesota, and has en-
gaged as a plumbing and heating contractor, installing
and servicing plumbing and heating equipment in com-
mercial and residential facilities In the course and con-
duct of those operations during calendar year 1986, the
Employer purchased and received goods and materials
valued in excess of $50,000 from other enterprises locat-
ed within the State of Minnesota, each of which received
those goods and materials directly from outside that
State. Therefore I conclude, as admitted in the Answer
of Respondents, that at all times material, the Employer
has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act
11. THE LABOR ORGANIZATIONS INVOLVED
At all times material, United Association of Journey-
men and Apprentices of the Plumbing and Pipefitting In-
dustry of the United States and Canada, AFL-CIO (Re-
spondent International) and Its Local, Pipefitters Local
Union No. 589 (Respondent Local), has each been a
labor organization within the meaning of Section 2(5) of
the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
At root, this case presents an issue of motivation
based, in turn, upon a section of Respondents' constitu-
tion that is alleged to be unlawful. In essence, that sec-
tion prohibits journeymen members from working with
nonmembers. i
Florence I. Brammer, for the General Counsel.
Brian A. Powers (O'Donoghue & O 'Donoghue), of Wash-
ington, D.C., appearing for the Respondents
Robert D. Chabot, of Duluth, Minnesota, appearing for
the Charging Party
294 NLRB No. 45
The events in this case span a revision and amendment of Respond-
ents' constitution, occurring "at Las Vegas, Nevada, July 28-August 1,
1986 With respect of the particular section pled in the complaint as un-
lawful, sec 154(a) of the superseded constitution provided
Continued
PLUMBERS LOCAL 589 (L & S PLUMING)
In September 1986, Joseph A. Lendacky was a union
member operating his own business, the Employer. At
one time the Employer had been party to a collective-
bargaining contract with Respondent Local, but Len-
dacky repudiated that relationship in March 1985. Later,
the Employer hired nonunion employees as helpers. On
September 27, 1986, he was charged with violating two
sections of Respondents' constitution: the one prohibiting
working with nonmembers and the other prohibiting
member-employers from working without a contract.2
As described in more detail in section III,B, infra, resolu-
tion of this charge would have allowed only one of the
Employer's nonunion employees to continue working for
it.
Respondent Local fined and expelled Lendacky from
membership. However, that penalty could not become
effective absent approval by Respondent International,
which was granted by letter dated April 7, 1987.3
I conclude that the section of the constitution pled in
the complaint, prohibiting union members from working
with nonmembers, does not violate the Act. It is by now
settled that rules of this type are encompassed by the in-
ternal affairs provision of Section 8(b)(1)(A) of the Act
and, consequently, do not violate the Act. See, e.g.,
Plumbers Local 119 (Kam tech, Inc.), 264 NLRB 688, 694
(1982), enfd mem. 715 F.2d 578 (11th Cir. 1983). As the
No journeyman member will be permitted to work with an appren-
tice or helper who is not a member except apprentices who have
made an application for membership in the Local Union and the
United Association, and who are covered by a written apprentice-
ship agreement and are serving a probationary period (not to exceed
six months) in a training program under the administration of an ap-
prenticeship committee or as provided by the 30 day period under a
union security clause
In the revised and amended constitution, that same proscription, modi-
fied in two respects not pertinent to the issues in this proceeding, appears
in sec 152(a)
No journeyman member will be permitted to work with an ap-
prentice or helper who is not a member except apprentices who have
made an application for membership in the Local Union and the
United Association, and who are covered by a written apprentice-
ship agreement and are serving a probationary period of one (1) year
in a training program under the administration of an apprenticeship
committee or if a helper, he is working under the grace period of a
union security clause
2 In the superseded constitution, this proscription appears in section
204(c), while it appears as section 200(c) of the revised and amended con-
stitution Both sections are identically worded
A member who enters business for himself or holds a financial inter-
est in any business and such business performs work that comes
within the work jurisdiction of the United Association must sign a
collective bargaining agreement with a Local Union or Local Unions
in whose territorial jurisdiction plumbing or pipefitting work is per-
formed `
3 Respondent International challenges the adequacy of the General
Counsel's investigation pertaining to the amended charge filed against it,
arguing that "there was no meaningful opportunity for it to present its
position during the investigative portion of the proceedings, and in this
respect it was denied full due process " But under Sec 3(d) of the Act,
the General Counsel possesses "final authority, on behalf of the Board, in
respect of the investigation of charges " Moreover, regional directors,
who operate under the General Counsel's supervision in this area, "may
exercise discretion to dispense with any portion of the investigation "
Statements of Procedure, Sec 101 4 Therefore, it is not within the prov-
ince of the Board and its administrative law judges to sit in judgment on
the manner in which the General Counsel's office discharges responsibil-
ity for conducting investigations Moreover, whatever may be said of the
investigation, Respondent International had full opportunity to present its
evidence during the hearing
617
Board recently pointed out in Local Carpenters Local
720 (UMC of Louisiana), 287 NLRB 545 (1987):
union rules forbidding members to work for non-
union employers reflect such traditional union ob-
jectives as encouraging members to work for signa-
tory employers, preserving union work and discour-
aging work done under nonunion conditions, main-
taining the integrity of hiring hall arrangements
with signatory employers, fulfilling contractual obli-
gations with those employers, and rallying the sup-
port of union members.
However, by applying this prohibition to an employer-
member, Respondents violated Section 8(b)(1)(A) and (2)
of the Act For the natural consequence of that applica-
tion is to cause employer-members to deprive nonunion
employees of continued employment Electrical Workers
IBEW Local 952 (Tri-Bar Electric), 269 NLRB 608
(1984), enfd. 758 F.2d 436 (9th Cir. 1985). Of course,
Lendacky was charged with, and disciplined for, operat-
ing without a collective-bargaining contract, as well as
for working with nonunion employees Respondents
argue that the record shows that the "overriding motiva-
tion in this case was to organize the employer" and, fur-
ther, "that the discipline would have occurred for the
admittedly valid reason of attempting to encourage the
employer to sign a contract." In this respect, Respond-
ents contend that they have shown that Lendacky would
have been disciplined, regardless of the status of his em-
ployees, and thus have satisfied their burden of going
forward, imposed pursuant to the analysis in Wright Line,
251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir. 1981),
cert denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
This is the motivation issue that, in the final analysis,
provides the central factual issue in this case.
For the reasons set forth post, I conclude that Re-
spondents failed to satisfy their burden of showing, in re-
sponse to the General Counsel's prima facie case, that
Lendacky would have been charged and disciplined for
not being party to a contract, regardless of the nonmem-
bership status of the Employer's employees. To the con-
trary, a preponderance of the evidence establishes that
Respondent Local's only concern was that the Employer
had hired employees who were not union members. In
the circumstances, the effort to obtain a contract was a
subordinate concern and was but the vehicle for depriv-
ing as many nonunion employees as possible of continued
employment with the Employer. Consequently, Re-
spondents have failed to show that they would have pro-
ceeded internally against Lendacky concerning the ab-
sence of a contract had the Employer not employed
workers who were not union members
Finally, I conclude that by concurring in Respondent
Local's disciplinary decision, Respondent International
became a party to the violation and, itself, violated Sec-
tion 8(b)(1)(A) and (2) of the Act.
B. The Evidence
In 1969 Lendacky became a member of Respondent
Local In 1980, he organized the Employer. Although he
618 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
has served as its chief executive officer, he has continued
working "with the tools" and has continued to maintain
his union membership.
The Employer became a party to a collective-bargain-
ing contract with Respondent Local. However, as a
result of a conflict with then-Business Manager Walter
A. Kordish,4 Lendacky wrote a letter to Respondent
Local on March 7, 1985, stating, to the extent pertinent
here, "that our union agreement will no longer be in
effect because of differences between the Union business
agent Kordish and myself." Brad Skarich, who had
become business manager by the time of the hearing, tes-
tified that rather than take formal action against Len-
dacky, the executive board members had decided "to try
and pursue, to remedy things with Joe and try to get
things right again" by instructing Kordish to attempt to
persuade Lendacky, "[t]o become signatory to the col-
lective bargaining agreement." Although this course was
not fruitful, no formal action was taken against Lendacky
for 19 months.
An internal union charge, dated "9-27-86," was filed
by Kordish against Lendacky. The charge recited that he
had violated constitutional sections 204(c) and 154(c) In
listing these sections, Kordish apparently overlooked the
fact that the constitution had been revised and amended
2 months earlier, for those sections in the revised and
amended constitution bear no relevance to the conduct
about which Kordish was complaining . Thus, in the
"Description of Nature of the Offense" portion of his
charge, Kordish stated:
Joseph Lendacky refused to be bound by our Local
Agreement. He hired and worked with people other
than members of the United Association. Steve
Kuriatnyk, David Nelson and Ken Gehrke are men
employed or who have been employed by L & S
Plumbing of which Joseph Lendacky is the owner
Moreover, in the "Pertinent Data" subsection of the
charge, Kordish recited that, "Brother Lendacky was
signed to our Agreement. He later refuted the Agree-
ment by hiring people and calling them partners. He has
since lost the partners, and hired people other than mem-
bers of the U A., which he continues to do at the present
time." Respondents do not contend that there was any
dispute with the Employer other than that pertaining to
the absence of a contract and the employment of non-
members Further, as set forth in section III,A, supra,
section 204(c) and section 154(c) of the superseded con-
stitution pertain, respectively, to operating as an employ-
er without a collective-bargaining contract and to work-
ing with nonmembers.
Respondent Local's executive board, presided over by
then vice president Skarich, conducted a hearing on No-
vember 17, 1986. Lendacky appeared and pled guilty to
all charges. At some points when he testified, Skarich,
Respondent's lone witness, claimed that the internal
charge would have been dropped if Lendacky merely
had agreed to sign a contract. But that testimony tended
to be contradicted by the minutes of that meeting.
Rather than imposing a penalty on Lendacky at that
time, one of the Executive Board members proposed a
settlement that contemplated a somewhat different type
of agreement . According to the minutes, the proposed
settlement would have obliged Lendacky
to sign an agreement with Local #589, the terms
being as follows: the Local will take his three (3)
men into its Helper program for a period of five (5)
years, with these men being eligible to take the
journeymans test with proper affidavits after this
time span , and to pay these men 70% of the negoti-
ated wage. This would enable him to bring his busi-
ness into compliance with Local policies.
This portion of the meeting concluded, according to the
minutes, with Lendacky requesting a copy of Respond-
ent Local's standard collective-bargaining contract and
saying that he would like time to discuss the proposed
settlement with the Employer's employees.
Significantly, had Lendacky agreed to the proposed
settlement, only one of his employees could have contin-
ued working for the Employer. For, Lendacky, himself,
was the only qualified journeyman then working for the
Employer. Respondent Local's standard contract re-
quires that three journeymen be employed before a
second helper or apprentice can be employed. Skarich
claimed that it might have been possible to avoid depriv-
ing all buy one of the employer's helpers of employment
by going, "through the executive board on a special
meeting again." But Skarich conceded that he was not
confident of that fact. To the contrary he admitted that,"
it would have been tough," since "if you start protecting
one contractor over the rest, your [ sic] signing a sweet-
heart agreement and you're asking for nothing but trou-
ble." In fact, his own earlier statements to the executive
board contradicted the optimism that he attempted to
display when testifying about continued employment of
all of the Employer's nonunion employees. For he con-
ceded that he had told the executive board on December
3, 1986, "that even had Lendacky's [sic] accepted Gen-
ise's proposal, it would not have been workable since our
procedures don't allow for two or three helpers to be in
the same shop." Respondent adduced no evidence that
an exception to this procedure ever had been granted to
any employer. In fact, in the final analysis, the best "pos-
sible" alternative solution that Skarich was able to ad-
vance was allowing one helper to remain employed with
the Employer and trying to locate employment else-
where for any others who would be obliged to cease
working for the Employer.
On December 2, 1986, Skarich was told by Lendacky
that the Employer's employees had been advised of Gen-
ise's proposed settlement, but "were not interested,
they'd like to leave things the way they are for the time
being"5 nor was he (Lendacky) interested in signing a
" Respondents admit that Kordish, now deceased, had been an agent of
Respondent Local at all times material to the events at issue in this pro-
ceeding
5 In their brief Respondents assert that no violation of Sec 8(b)(1)(A)
of the Act has been established, because "the record is devoid of any evi-
dence that the employees of the Employer had any knowledge of the fine
Continued
PLUMBERS LOCAL 589 (L & S PLUMING) 619
contract. At a meeting on the following day, according
to the revised minutes of it, "[t]he Executive Board im-
posed a fine of five hundred dollars ($500 00) in addition
to five hundred dollars ($500.00) reinitiation fee. The
Board also recommended expulsion from the United As-
sociation." But that decision was not final at that point.
Due to the severity of the penalty imposed on Len-
dacky, approval had to be secured from Respondent
International. On December 11, 1986, Respondent Local
petitioned for approval of its disciplinary action. At the
hearing, Respondents introduced a packet of documents
that were in "the file that Respondent International had
on this case." Included among them is a copy of Len-
dacky's letter to Respondent Local dated March 7, 1985,
a copy of the charge against Lendacky dated "9-27-86";
and, a copy of the minutes of the executive board meet-
ing on November 17, 1986 In short, Respondent Interna-
tional possessed the pertinent documents that have been
offered into evidence in this case to support the com-
plaint against Respondents.
By letter dated December 18, 1986, Respondent Inter-
national's General Secretary-Treasurer Charles J. Habig
notified Lendacky that Respondent Local had sought
"approval of disciplinary action taken against you," and
invited Lendacky to submit a statement "regarding your
side of the controversy," as well as notifying him that he
was "entitled to an appeal from the decision of the local
union to place this penalty against you."s Apparently
exacted against the employer or the reason for the fine " Yet, that asser-
tion is refuted by Lendacky's statement to Skarich on December 2, 1986
Of course, in this regard that testimony was hearsay since it was Skarich
who recited what had been said to him by Lendacky that day Lendacky
did not testify concerning what he had said to the Employer's employees
But this testimony by Skarich was elicited by Respondent's counsel and
he did not seek to limit the purposes for which it was being offered "Or-
dinarily, where there is no objection to hearsay evidence, it is a clear in-
dication that the evidence is not disputed, hence the absence of objec-
tion " NLRB v Operating Engineers Local 12, 413 F 2d 705, 707 (9th Cir
1969) This doctrine applies with even greater force where a party, itself,
elicits hearsay the substance of which is adverse to its own interest Here,
the remark to Skarich tends to show that Lendacky had told the employ-
ees about Gemse's settlement proposal and, in turn, about the circum-
stances that had led Genise to make it That conclusion tends to be con-
firmed, by Lendacky's statement to the Executive Board, on November
17, 1986, that he intended to discuss the proposed settlement with the
Employer's employees Nothing in the record serves to show that he did
not, in fact, discuss the matter with those employees, as he said that he
would do and as he later said that he had done Consequently, there is no
merit to the argument that no violation of Sec 8(b)(l)(A) of the Act can
be established because the Employer's employees were unaware of the in-
ternal union proceedings against Lendacky and their potential effect on
them
6 The letter also notified Lendacky that he had the right to continue
paying dues to remain in good standing pending Respondent Internation-
al's decision At the hearing testimony was adduced showing that under
the union constitution, Lendacky should have been expelled from mem-
bership automatically on February 28, 1987, because he had paid no dues
for the preceeding 6 months Thus, Skarich explained
If a member goes delinquent for three months, he pays a $50 00 rein-
statement fee, plus his back dues After he is delinquent for six
months, he is automatically expelled by the United Association On
the local level, we have no say on that, that's all done through the
International, through the case sheets
However, due to a bookkeeping error, Lendacky was credited as
having paid dues through November 1986 Thus, by April 1987, he was
not officially expelled from membership Moreover, Skarich testified that
the matter did not come to light until "later now" and there is no show-
ing that either Respondent Local or Respondent International had been
aware by April 1987 that Lendacky technically should have been expelled
Lendacky chose to do neither. By letter, dated April 7,
1987, Habig notified Kodish,
that the General Executive Board has concurred in
the recommendation of the Local Union 589, Hib-
bing, Minnesota, to place a $500.00 fine against
Joseph A. Lendacky . . . and that he be expelled
with a raised initiation fee of $500.00 placed against
him. In accordance with Section 165 of the United
Association' Constitution, the penalty will be pay-
able prior to reinitiation.
A similarly worded letter was sent to Lendacky by
Habig.
C Analysis
In Electrical Workers IBEW Local 952 (Tn-Bar Elec-
tric), supra, the Board held that a labor organization vio-
lated Section 8(b)(1)(A) and (2) of the Act by initiating
internal disciplinary proceedings, resulting in imposition
of a fine, against an employer-member for working with
nonunion employees that he employed.? In so holding,
the Board adopted Administrative Law Judge David G
Heilbrun's reasoning -that the respondent there directly
approached the employer, utilizing the latter's union
membership as a lever to compel him to relieve non-
union employees of their duties and, in so doing, con-
veyed to those employees the message "that they face a
potential deprival of work opportunity should the ac-
cused member-employer succumb to such pressure." (Id
at 609.)
An almost identical situation is presented in the instant
case. Lendacky was an employer-member at the time
that the charge was filed against him. He was ap-
proached directly and that approach was based on his
union membership. Since he was the lone journeyman
employed by the Employer, had Lendacky succumbed to
the pressure of the charge, all nonunion employees, save
one, would have been deprived of continued employ-
ment. Although, as discussed in section III,B, supra,
Skarich claimed that it might have been possible to avoid
that result, his testimony in that regard was unconvinc-
ing, contradicted by his own earlier statements to the ex-
ecutive board, not consistent with avoidance of excep-
tions for one employer that could later be advanced by
other employers seeking similar treatment, and unsup-
ported by evidence of similar exceptions having been
granted to any other employers In short, Respondents
have failed to show that all but one employee would not
have been deprived of employment had Lendacky suc-
cumbed to the pressure of the charge.
As pointed out in section III,A, supra, Respondents
argue that Tri-Bar Electric is distinguishable in one signif-
from membership by that time Since nonpayment of dues was not a
factor in Respondents' motivation for disciplining Lendacky, that subject
is irrelevant in this proceeding What ramifications it may have concern-
ing the remedial order, especially in view of the paucity of evidence re-
garding the nonpayment in this record, is a matter that can be resolved in
the compliance phase of this case
7 While the circuit court enforced the Board's Order in that case under
the doctrines of Sec 8(b)(2) of the Act, the court concluded that it was
unnecessary to determine if Sec 8(b)(1)(A) of the Act had been violated
,as well
620 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
icant respect: that there was no valid other purpose for
the discipline in that case, whereas here, "the discipline
would have occurred for the admittedly valid reason of
attempting to encourage the employer to sign a con-
tract " In another context this argument might have
merit. But the evidence does not warrant the conclusion
that absent employment of nonmembers, Lendacky
would have been disciplined because the Employer was
not party to a collective-bargaining contract. To the con-
trary, a preponderance of the evidence shows that Re-
spondent Local was unhappy over the nonunion status of
the Employer's employees and that a contract was
sought as a means for eliminating as many of them as
possible
That Respondent Local had not been concerned solely
about the nonexistence of a contract with the Employer
is shown, first, by the fact that Lendacky was charged
not only with violating the prohibition against operating
a business without a collective-bargaining contract He
was charged as well with working with nonmembers. In-
clusion of this additional allegation serves no logical pur-
pose if Respondent Local's sole concern truly had been
restricted to the absence of a contract with the Employ-
er. Certainly no purpose in that connection for the addi-
tional allegation has been suggested by Respondents.
That Respondent Local had not been concerned at all
about the nonexistence of a contractual relation, until
nonmembers were discovered working for the Employer,
is shown by the fact that, the Employer had been operat-
ing without a contract for almost 19 months prior to the
filing of the internal charge on September 27, 1986. Re-
spondent Local had been aware of that fact for that
entire period. That is shown by Lendacky's letter of
March 7, 1985, included in Respondent International's
file, stating "that our agreement will no longer be in
effect." Yet, no internal charges were preferred against
Lendacky at any point during that period To the con-
trary, Respondent Local's officials admittedly had made
a conscious decision to refrain from doing so, opting in-
stead to attempt to persuade Lendacky informally to
resume contractual relations. The record is devoid of
evidence showing any event, relating only to the nonex-
istence of a contract, that would naturally have led Re-
spondent Local to reverse field in September 1986, and
suddenly to charge Lendacky with failing to observe a
constitutional prohibition that he had been disregarding
for over a year and a half.
The true reason for that abrupt change in direction is
shown clearly by the narrative descriptions in the
charge, supplied as the bases for its filing Note is made
of the absence of a contract in both the "Description of
Nature of the Offense" and the "Pertinent Data. . . .
subsections. However, those notations serve as mere
springboards for more prolonged complaints pertaining
to the nonunion status of employees working for the Em-
ployer. The record does not disclose when the Employer
commenced hiring employees who were not union mem-
bers. Nor, more important, does it show when Respond-
ent Local's officials discovered that fact. But an objec-
tive reading of the recitations in the charge's two subsec-
tions makes plain that the absence of a contract was but
a footnote to the central complaint that the Employer
was employing nonmembers That is, by hiring nonunion
personnel, Lendacky "refuted the Agreement" and "re-
fused to be bound by it"-in short, while the absence of
a contractual relationship was tolerable, it was not to be
ignored if nonmembers were employed.
In sum , the General Counsel has established a prima
facie case that the filing and processing of the internal
charge was motivated by the Employer's employment of
employees who chose not to be union members and,, fur-
ther, was intended as a means for depriving as many of
those employees as possible of continued employment
with the Employer. It is undisputed that the Employer
was not a party to a collective-bargaining contract and
that Lendacky, a union member , was prohibited by the
union constitution from operating in that fashion. But
Respondents have failed to meet their burden of going
forward by showing that Lendacky would have been
charged and disciplined regardless of the union status of
the Employer's employees Rather, absence of a contract
with the Employer had been tolerated for 19 months
without internal disciplinary proceedings being initiated,
Lendacky was charged with working with nonunion per-
sonnel as well as with not being party. to a contract, and,
the central focus of the charge was that by hiring non-
union personnel, Lendacky had acted inconsistently with
the contract and,,thus, the union constitution, as opposed
to violating the latter simply by not being party to a con-
tract. Consequently, on this record it cannot be said that
Lendacky would have been disciplined had the Employ-
er not employed personnel who exercised their statutory
right to refrain from being members of a labor organiza-
tion Lendacky was approached directly by Respondent
Local which used his' union membership as the basis for
internal disciplinary proceedings in an effort to attempt
to cause him to pursue a course of action having the nat-
ural consequence of depriving employees of continued
employment because they were not union members. Con-
sequently, Respondent Local violated Section 8(b)(1)(A)
of the Act. But assessment of Respondent International's
liability under the Act requires additional analysis.
In Musicians (Don Glasser), 165 NLRB 798 (1967),
enfd. sub nom. Don Glasser v. NLRB, 395 F.2d 401 (2d
Cir. 1968), the Board concluded that the, in effect, inter-
national labor organization did not violate the Act
merely by engaging in the ministerial act of processing
two members' appeals from a local union's unlawfully
imposed fines. But in that case, the international sus-
tained the appeals, with the result that no discipline ulti-
mately was imposed. Consequently, in that case the
Board did not confront the issue of what should have
been the result had the international denied the appeals
and upheld the local's unlawfully imposed fines. Later
cases have found international labor organizations liable
whenever they have ratified unlawful actions by their af-
filiated local labor organizations. However, in almost all
of these cases the Board has noted that, before ratifying
or approving those actions, the internationals possessed
information , as a result of their own investigations, that
placed them on notice of the illegality of the locals' ac-
tions. That is, "[t]he International did not simply 'rubber-
stamp' the trial board's finding." Electrical Workers
PLUMBERS LOCAL 589 (L & S PLUMING)
IBEW Local 11 (Bergelectric Corp.), 271 NLRB 25, 27
(1984). See also Iron Workers Local 46 (Cement League),
259 NLRB 70, 77 (1981), enfd. in pertinent part 727 F.2d
234 (2d Cir. 1984); Teamsters Local 984 v. Humko Co.,
287 F 2d 231, 242 (6th Cir 1961), cert. denied 366 U S.
962. Unanswered by these cases was the extent, if any, to
which it has to be shown that an international possesses
information that does, or should, put it on notice of the
illegality of its local's action
In Bricklayers (McCleskey Construction), 241 NLRB 898
(1979), the Board flatly stated that the local's request for
enforcement or ratification, "place[d] a duty upon Re-
spondent International to investigate the action taken by
Respondent Local." (Ibid) More recently, in Sheet Metal
Workers Local 80 (Limbach Mechanical), 285 NLRB 386,
388 (1987), the Board concluded that the international
labor organization's "decision to uphold the local labor
organization's expulsion" violated the Act. Arguably the
nature of the charge could have put the international on
notice of the facts underlying the local'sdiscipline. How-
ever, the Board reached its conclusion without discus-
sion of the information available to the international and
without discussion of whether or not the international
had investigated, or had merely "rubber-stamped," the
local's action
If an international labor organization is liable when-
ever it ratifies, enforces or approves the unlawful action
of its affiliated local labor organization-either on a per
se basis or because of a duty to investigate the local's
action-then Respondent International is liable here Re-
spondent Local's penalty did not become final until ap-
proved by Respondent International. The latter did grant
approval.
Even if liability attaches only where it is shown that
an international possesses information sufficient to at
least put it on notice that an illegality may exist, Re-
spondent International's situation here satisfies that
higher standard. In "the file" it possessed copies of Len-
dacky's letter to Respondent Local severing contractual
relations and of the charge filed against Lendacky 19
months later This 19-month gap, viewed in conjunction
with the sections of the union constitution enumerated in
the charge and the narrative descriptions that it con-
tained, provided sufficient information to alert Respond-
ent International that Respondent Local was concerned
about a condition other than mere absence of a contract
with the Employer Indeed, as discussed above, this in-
formation serves to show that Respondent Local's actual
concern had been the nonunion status of the Employer's
employees and, further, that the charge was a device for
compelling the Employer to deprive as many of them as
possible of work Therefore, I conclude that by approv-
ing the recommended disciplinary action, Respondent
International violated Section 8(b)(1)(A) and (2) of the
Act.
CONCLUSION OF LAW
By disciplining employer-member Joseph A. Lendacky
because he performed work alongside nonunion employ-
ees of his company, United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting Indus-
try of the United States and Canada, AFL-CIO, and its
621
Local, Pipefitters Local Union No 589, have committed
unfair labor practices affecting commerce, within the
meaning of Section 2(6) and (7) of the Act, by attempt-
ing to cause L & S Plumbing and Heating of Hibbing,
Inc, an employer engaged in commerce, to discriminate
against employees within the meaning of Section 8(a)(3)
of the Act and by restraining and coercing employees in
the exercise of rights guaranteed them by Section 7 of
the Act, thereby violating Section 8(b)(2) and Section
8(b)(1)(A) of the Act.
REMEDY
Having concluded that United Association of Journey-
men and Apprentices of the Plumbing and Pipefitting In-
dustry of the United States and Canada, AFL-CIO, and
its Local, Pipefitters Local Union No. 589 have engaged
in certain unfair labor practices, I shall recommend that
they be ordered to cease and desist therefrom. In addi-
tion, they shall be ordered to take certain affirmative
action to effectuate the policies of the Act, including re-
scinding the penalty imposed on Joseph A. Lendacky
and expunging from their records all reference to the
charge, trial and penalty imposed and approved against
him for assertedly violating the Constitution of the
United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United
States and Canada, as revised and amended at Las
Vegas, Nevada, July 28-August 1, 1986. However, as the
General Counsel has failed to show special circumstances
necessitating its inclusion as a remedy, her request for a
visitatorial remedy is denied. Cherokee Marine Terminal,
287 NLRB 1080 (1988)
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed8
ORDER
The Respondents, United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting Indus-
try of the United States and Canada, AFL-CIO, and Its
Local, Pipefitters Local Union No. 589, their officers,
agents, and representatives, shall
1. Cease and desist from
(a) Maintaining or enforcing section 152(a) of the con-
stitution of the United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of
the United States and Canada, AFL-CIO as revised and
amended at Las Vegas, Nevada, July 28-August 1, 1986,
prohibiting members from working with nonmembers,
against Joseph A. Lendacky, or other employer-mem-
bers, thereby causing or attempting to cause them to dis-
criminate against nonunion employees in violation of
Section 8(a)(3) of the National Labor Relations Act, as
amended.
8 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
porse
622 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) In any like or related manner restraining or coerc-
ing employees of L & S Plumbing and Heating of Hib-
bing, Inc. or of any other employer in the exercise of the
rights guaranteed in Section 7 of the Act, except to the
extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condi-
tion of employment in accordance with Section 8(a)(3) of
the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the penalties imposed against Joseph A
Lendacky on December 3, 1986, as approved on April 7,
1987.
(b) Remove from their records all references to the
charge, trial and penalty imposed against Joseph A. Len-
dacky on December 3, 1986 , as approved on April 7,
1987.
(c) Notify Joseph A Lendacky , in writing, that they
have taken the action required in subparagraphs (a) and
(b) above
(d) Post at their business offices, hiring halls and meet-
ing places in Hibbing , Minnesota , copies of the attached
notice marked "Appendix "9 Copies of the notice, on
forms provided by the Regional Director for Region 18,
after being signed by the Respondent 's authorized repre-
sentative , shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places , where notices to
members and employees are customarily posted . Reason-
able steps shall be taken by the Respondent to ensure
that the notices are not altered , defaced , or covered by
any other material.
(e) Additional copies of the attached notice marked
"Appendix" shall be signed by authorized representatives
of United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United
States and Canada, AFL-CIO , and its Local , Pipefitters
Local Union No. 589, and forthwith returned to the Re-
gional Director for Region 18 for posting by L & S
Plumbing and Heating of Hibbing, Inc., it being willing,
at its place of business in Hibbing , Minnesota , where no-
tices to its employees are customarily posted.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES AND MEMEBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that
we violated the National Labor Relations Act and has
ordered us to post and abide by this notice.
WE WILL NOT maintain nor enforce Section 152(a) of
the Constitution of the United Association of Journey-
men and Apprentices of the Plumbing and Pipefitting In-
dustry of the United States and Canada, as revised and
amended at Las Vegas, Nevada, July 28-August 1, 1986,
prohibiting members from working with nonmembers,
against Joseph A . Lendacky, or other employer-mem-
bers, thereby causing or attempting to cause them to dis-
criminate against nonunion employees in violation of
Section 8(a)(3) of the National Labor Relations Act, as
amended.
WE WILL NOT in any like or related manner restrain or
coerce employees of L & S Plumbing and Heating of
Hibbing, Inc., nor of any other employer , in the exercise
of the rights guaranteed in Section 7 of the Act, except
to the extent that such rights may be affected by an
agreement requiring membership in a labor organization
as a condition of employment in accordance with Sec-
tion 8(a)(3) of the Act.
WE WILL rescind the penalties imposed against Joseph
A. Lendacky on December 3, 1986, as approved on
April 7, 1987.
WE WILL remove from our records all references to
the charge , trial and penalty imposed against Joseph A
Lendacky on December 3, 1986, as approved on April 7,
1987.
WE WILL notify Joseph A . Lendacky , in writing, that
we have taken the required action set forth above.
9 If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
UNITED ASSOCIATION OF JOURNEYMEN
AND APPRENTICES OF THE PLUMBING AND
PIPEFITTING INDUSTRY OF THE UNITED
STATES AND CANADA, AFL-CIO
