Millwrights Local Union No. 1931 Of The United Brotherhood Of Carpenters And Joiners Of America

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 1068 (N.L.R.B. 1986)

1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Millwrights Local Union No . 1931 of the United
Brotherhood of Carpenters and Joiners of
America and John W. McCaffrey. Case 15-
CB-3107
30 September 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 12 March 1986 Administrative Law Judge
Claude R. Wolfe issued the attached decision. The
General Counsel filed limited exceptions and a sup-
porting brief, and the Respondent filed a brief in
opposition to the General Counsel's limited excep-
tions.
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'
as modified and set forth in full below.
ORDER
The National Labor Relations Board orders the
Respondent, Millwrights Local Union No. 1931 of
the United Brotherhood of Carpenters and Joiners
of America, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Removing employees' names from its out-of-
work ' lists for arbitrary, discriminatory, or irrele-
vant considerations.
' The General Counsel excepts to the judge's recommended Order to
the extent that it does not include a visitatorial clause authorizing the
Board, for compliance purposes, to obtain discovery from the Respond-
ent under the Federal Rules of Civil Procedure under the supervision of
the United States court of appeals enforcing this Order. Under the cir-
cumstances of this case, we find it unnecessary to include such a clause
Accordingly, we deny the General Counsel's request.
The General Counsel further excepts to the judge's recommended
Order to the extent that it does not order the Respondent to make John
W McCaffrey whole for any loss of earnings he may have suffered by
reason of the discrimination against him. The judge concluded that there
was no allegation or evidence that McCaffrey's removal from the out-of-
work list for 2 weeks caused him to miss any employment opportunities
or to lose any wages. We do not consider these observations to justify
omission of a make-whole remedy, as McCaffrey's monetary loss, if any,
resulting from his unlawful removal from the list, is properly established
at comphance. We therefore modify the judge's recommended Order to
require the Respondent to make McCaffrey whole for any such loss
We also modify the judge's recommended Order to provide for the res-
toration of McCaffrey's name to the Respondent's out-of-work list in the
same position which it occupied before it was discriminatorily removed
We have traditionally held that when a union discriminatorily removes a
person's name from its out-of-work list or refuses to place the name on
the out-of-work list, the appropriate remedy is to place the name on the
list in the position it would have occupied had the union not acted discri-
minatorily Asbestos Workers Local 5 (Insulation Specialties Corp.), 191
NLRB 220 (1971), affd. 464 F 2d 1394 (9th Cit. 1972).
(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the purposes of the Act.
(a) Restore, on request, the name of John W.
McCaffrey to the Respondent's out-of-work list in
the same position which it occupied before it was
discriminatorily removed about 16 September 1985.
(b) Make John W. McCaffrey whole for any loss
suffered as a result of his discriminatory removal
from the Respondent's out-of-work list. Compensa-
tion for such losses to be computed as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest as set forth in Florida Steel Corp., 231
NLRB 651 (1977).
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all job-referral records and any other docu-
ments or records showing job referrals and work
assignments, and the basis for making such referrals
and assignments, of members, employees, and job
applicants, which are necessary to compute and
analyze the amount of backpay due McCaffrey and
to determine his right to referral to jobs under the
terms of this Order.
(d) Post at its business office copies of the at-
tached notice marked "Appendix."2 Copies of the
notice, on forms provided by the Regional Direc-
tor for Region 15, after being signed by the Re-
spondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to members are customarily posted. Reasona-
ble steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Furnish to the Regional Director signed
copies of the notice in sufficient number for posting
by R.M.S., Incorporated if willing to so post.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
2 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."
281 NLRB No. 142
MILLWRIGHTS LOCAL 1931
APPENDIX
NOTICE To EMPLOYEES
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 remove employees ' names from
our out-of-work list for arbitrary, discriminatory,
or irrelevant considerations.
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL restore, on request, the name of John
W. McCaffrey to our out-of-work list in the same
position which it occupied before it was discrimin-
atorily removed about 16 September 1985.
WE WILL make John W. McCaffrey whole for
any loss suffered as a result of his discriminatory
removal from our out-of-work list.
MILLWRIGHTS LOCAL UNION NO.
1931 OF THE UNITED BROTHERHOOD
OF CARPENTERS AND JOINERS OF
AMERICA
Charlotte N. White, Esq., for the General Counsel.
Jerry L. Gardner, Esq., for the Respondent Union.
M. L. Juran, Esq., for James J. Reese Sr.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge. This
proceeding was litigated before me at New Orleans,
Louisiana, on 21 January 1986 pursuant to charges filed
and served on 27 September and 1 November 1985 and
complaint issued on 4 November 1985.1 It is alleged that
Millwrights Local Union No. 1931 (sometimes referred
to as the Union, Respondent, or Local 1931 ), violated
Section 8(b)(1)(A) of the Act by removing the name of
John W. McCaffrey from the Union's out-of-work list
about 3 September for "arbitrary , invidious , discriminato-
ry and/or irrelevant considerations.
Respondent denies the commission of unfair labor
practices.2
On the entire record ,3 including the demeanor of the
witnesses , and after considering the posttrial briefs of the
parties, I make the following
i All dates are 1985 unless otherwise indicated.
2 The General Counsel's motion to strike that portion of Respondent's
answer requesting an award for attorney fees was granted because the re-
quest was untimely.
9 The position letter submitted by Respondent 's counsel during the in-
vestigation of the charge was rejected as G.C. Exh. 8 , with instructions
to place it in the rejected exhibits file . It is incorrectly marked as re-
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYER
1069
R.M.S., Incorporated (R.M.S.),4 a Louisiana corpora-
tion engaged in the specialty mechanical construction in-
dustry, with offices and facilities in the New Orleans,
Louisiana metropolitan area , during the 12 months pre-
ceding the issuance of the complaint , a representative
period , R.M.S., in the course and conduct of its business
operations as described in paragraph 2, above, received
in excess of $50,000 for services performed for Louisiana
Power & Light Company , and Shell Western Explora-
tion Production, Inc., which , in turn, purchased and re-
ceived goods and materials valued in excess of $50,000
directly from points outside the State of Louisiana, and is
now, and has been at all times material , an employer
within the meaning of Section 2(2) of the Act, engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.
II. LABOR ORGANIZATION
Respondent is, and has been at all times material, a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
John W. McCaffrey is a member of Local 1931. An-
thony Cucchero is the Union' s business manager and fi-
nancial secretary . In April, McCaffrey commenced a
campaign for that office, which was up for election in
June . During his campaign , McCaffrey sent a letter to all
union members soliciting their support in the upcoming
election and criticizing Cucchero's performance as the
incumbent . Cucchero won reelection to the office by an
overwhelming majority over McCaffrey and another
candidate.
The Union has a collective-bargaining agreement with
R.M.S., which requires R.M.S. to secure employees by
referral from the Union unless the Union is unable to fill
the Employer's requirements within 48 hours . This is an
exclusive hiring agreement.6 Employment was scarce
ceived . R. Exh. 2 was received in evidence . It is not marked as received,
but it is clear in the record that Exh . 2 has been received in evidence.
4 The motion by counsel for R M .S, Incorporated , the Employer
named herein for jurisdictional purposes , that the Employer's name be re-
moved as part of the case caption was agreed to by the General Counsel
and Respondent, and is granted.
a The facts set forth herein are based on a composite of the credited
testimony , the exhibits, and careful consideration of the logical consisten-
cy and inherent probability of the facts found . Although I may not
advert to all the record testimony or documentary evidence , it has been
weighed and considered. To the extent that testimony or other evidence
not mentioned herein might appear to contradict the findings of fact, that
evidence has not been overlooked but has been rejected as incredible,
lacking in probative worth, surplusage , or irrelevant . Bishop & Malco.
Inc., 159 NLRB 1159, 1161 (1966). There are testimonial inconsistencies
on some peripheral matters. I have noted them, but do not consider them
to be so compelling as to diminish my credibility findings on other more
substantive matters. To the extent I have credited individuals on one oc-
casion but not others , I would only observe that it is a rare witness
whose recollections are minutely correct on every item placed before
him, and a trier of fact may properly credit some of a witness ' testimony
without believing all of it . NLRB Y. Universal Camera Corp., 179 F 2d
749 (2d Cir. 1950), vacated and remanded 340 U S. 474 (1951)
6 Iron Workers Local 111 (Steel Builders), 274 NLRB 742 (1985).
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within the geographical jurisdiction of Local 1931. As a
result, many Local 1931 members secured employment
outside the Union's jurisdiction. This employment situa-
tion gave rise to a problem between Local 1931 and its
sister local in Lafayette, Louisiana. On the morning of 21
June, Roy Guidry, business agent for the Lafayette local,
called Cucchero. He advised that he had received a
phone call, from a person he did not name, to the effect
that members of Local 1931 were working within the ju-
risdiction of the Lafayette local. Guidry asked Cucchero
if this were true. Cucchero agreed it was, whereupon
Guidry complained that he had not been notified. They
agreed to meet later that day with James J. Reese Sr.,
president of R.M.S., Cucchero then called Reese, and ar-
ranged a meeting for that afternoon at Franklin, Louisi-
ana. Cucchero denies telling Reese that he suspected
McCaffrey as the one who called the Lafayette local.
Reese testified that McCaffrey's name was not mentioned
by Cucchero. The General Counsel confronted Reese
with his pretrial affidavit wherein he stated as follows:
On the 21st of June I received a call from Cuc-
chero, who told me he had received a phone call
from the Lafayette's millwrights business agent
about the job I was working. I suggested that the
three of us have a meeting at Best Western Motel in
Franklin, La., where I was staying. Cucchero told
me that someone had called the business agent in
Lafayette and the business agent there called Cuc-
chero. The millwrights on the job speculated that
McCaffrey had called Lafayette.
Reese plausibly and credibly explained that the last sen-
tence of the foregoing quotation is out of context and
was inserted by the Board agent7 taking the statement
after Reese informed him that Reese had heard that em-
ployees on his job were speculating that McCaffrey had
called the Lafayette local. I am persuaded Cucchero did
not tell Reese that he suspected McCaffrey, and further
find there is no probative evidence that McCaffrey was
mentioned at the meeting of 21 June, which resulted in
an agreement that Local 1931 men could work in the ju-
risdiction of the Lafayette local upon payment of a fee.
On 13 September, McCaffrey visited Cucchero at his
office in the union hall. McCaffrey and Cucchero agree
that McCaffrey complained he was being denied work
and knew that others were being sent out by the Union.
Cucchero denied this was so. McCaffrey then demanded
a clearance card to enable him to seek work in other
local unions' jurisdictions. Cucchero gave him one. At
this point, their accounts diverge somewhat.
According to McCaffrey, Cucchero asked why McCaf-
frey had called the Lafayette business agent and in-
formed him that Local 1931 members were working in
his jurisdiction. McCaffrey denied he had called. Cuc-
chero called him a liar and said ' he could prove it.
McCaffrey said he would give Cucchero a chance to
prove it, and left. Cucchero followed him to the street
and told him not to come back. McCaffrey concedes he
7 The Board agent did not testify.
cursed Cucchero. To which Cucchero replied, "that's a
chargeable offense."
Cucchero's version is that while trying to find out
who had called the Lafayette business agent, he asked if
McCaffrey had anything to do with Morgan City. This
caused McCaffrey to jump up and loudly curse him.
Cucchero ordered him out of the office and told him in-
traunion charges would be referred. McCaffrey replied
that Cucchero could not file charges against him because
he had a clearance card. Cucchero did not tell McCaf-
frey never to come to the hall again.
Union members Robert Schellinger and Kevin Curley
were witnesses, to the 13 September incident. Curley re-
members only hearing McCaffrey shouting and loudly
cursing Cucchero at least two times, and Cucchero re-
sponding that if McCaffrey persisted in his conduct he
would have to leave the hall. Schellinger avers that he
heard McCaffrey demand a clearance, and then get loud
and curse Cucchero when Cucchero asked him some-
thing about a Calumet job. According to Schellinger,
Cucchero, who never raised his voice, then said he
would bring charges, but McCaffrey yelled that Cuc-
chero could not bring charges because McCaffrey was
no longer a member.
There is not that much difference to choose between
the testimony of Cucchero and McCaffrey, but consider-
ing the little bit of corroboration for Cucchero I find him
the more credible on the details of this -confrontation.
Regardless of which version appeals, I think it rather ob-
vious from Cucchero's inquiry, however ,phrased, into
McCaffrey's involvement with the phone call to Lafay-
ette, which Cucchero was admittedly trying to resolve,
that Cucchero entertained a strong suspicion that McCaf-
frey was the caller.
McCaffrey's receipt of a clearance did not automatical-
ly remove him from Local 1931 membership or its out-
of-work list from which it refers members to employ-
ment. The Union's International constitution provides
that membership remains in the local issuing the clear-
ance card until that card is deposited in another local
union. Regarding the out-of-work list, the Union's
bylaws require a member who wishes to remain on the
list to verify his or her continued unemployment by
either calling in or coming into the union hall every
Monday, either of which will maintain the member's
place on the out-of-work list. McCaffrey had filed the
necessary application for referral on 26 August and had
made the required Monday contacts with the Union
through 9 September. His name appears on the 9 Sep-
tember out-of-work list.
McCaffrey testified that he called Cucchero at the
union hall about 8 a.m. on Monday, 16 September, and
advised that he wanted to remain on the list. Cucchero
allegedly replied that he had struck McCaffrey's name
from the list when he got his clearance card. McCaffrey
says he protested that Cucchero could not do that be-
cause McCaffrey had not deposited his union book in an-
other local union. According to McCaffrey, Cucchero
responded that McCaffrey was off the list, and hung up
the phone. Cucchero denies receiving the phone call
from McCaffrey on 16 September, and denies telling him
MILLWRIGHTS LOCAL 1931
his name had been struck off when he cleared out. Re-
spondent elicited the testimony of Vera Crawford, the
bookkeeper/secretary for Local 1931, and union member
Melvin Gorbach in support of Cucchero's denial of any
McCaffrey phone call on 16 September . Neither provides
that support . Crawford testified that she did not come in
to work on 16 September before 8 :15 a.m., and Gorbach
only furnished testimony that Cucchero received no call
from McCaffrey between 6 and 7 a.m. on 16 September.
This evidence does not rebut McCaffrey's claim that he
called at 8 a.m., which falls between the periods covered
by the testimony of Crawford and Gorbach.
Cucchero asserts that on 13 September he wrote the
phrase "9-13-85 cleared out" after McCaffrey's name on
the out-of-work list. He is contradicted by Vera Craw-
ford who positively states that this notation was not on
the list on 16 September , and Cucchero must have made
it on 19 September because he was out of town on 17
and 18 September . Cucchero says he crossed out McCaf-
frey's name on the list and noted "NC" after his name on
19 September . "NC" denotes "no call ." Cucchero further
testified that he did not take McCaffrey off the list when,
or because, the clearance card was issued , but did strike
him from the list on 19 September because he failed to
call in as required on 16 September.
McCaffrey testified that he again called Cucchero on
23 September and said he wanted to stay on the list, but
Cucchero again said McCaffrey was off the list when he
cleared out . McCaffrey says he again told Cucchero he
could not do that to McCaffrey because McCaffrey had
not deposited his book in another local . Cucchero's re-
sponse, according to McCaffrey, was, "Who says I
can't?" to which McCaffrey responded by referring Cuc-
chero to the union constitution 's provision that a member
remains a member until he deposits his book in another
local. At this point, Cucchero went off the line for 20 to
30 seconds, returned , and asked what McCaffrey wanted.
McCaffrey replied he wanted to remain on the list. Cuc-
chero said there was no problem and asked what page of
the list McCaffrey's name was on. McCaffrey gave him a
page number , and that concluded the conversation. Cuc-
chero denies any conversation with McCaffrey on 23
September.
McCaffrey went to the union hall on 30 September,
signed a new application to be put on the out-of-work
list, was put on the list , and on that date declined a job
proffered him at Tenneco Refinery, which he was quali-
fied to perform.
While all the above was going on, or allegedly going
on, Cucchero filed intraunion charges against McCaffrey
on 23 September based on McCaffrey's conduct on 13
September . McCaffrey in turn filed intraunion charges
against Cucchero on 1 October alleging a false accusa-
tion of calling the Lafayette local and discrimination in
job referral. Both charges were subsequently withdrawn.
Neither McCaffrey nor Cucchero were outstanding
witnesses as far as demeanor is concerned , but McCaf-
frey was more impressive in his matter-of-fact recitation
of his 16 and 23 September phone calls than was Cuc-
chero in his denials . Moreover, McCaffrey's testimony
impressed me as believable and uncontrived. On the
whole, I am persuaded McCaffrey's testimony outweighs
1071
that of Cucchero with respect to the 16 and 23 Septem-
ber calls.
There is no allegation or evidence that McCaffrey's re-
moval from the out-of-work list for 2 weeks caused him
to miss any employment opportunities or to lose any
wages.
McCaffrey called in on 16 September to remain on the
list, but was rebuffed by Cucchero. If the Union's out-of-
work lists for the weeks of 16, 23, and 30 September are
to be taken at face value , prompt removal of McCaffrey
from the list during the week beginning 16 September,
even if he had not called in that week, was a deviation
from the normal pattern . The list for the week of 16 Sep-
tember shows the names of McCaffrey, Siles, and Guerra
crossed off because of "NC" (no call), but it also shows
there were 16 others marked "NC" for 16 September
who were not crossed off. At least eight members on the
lists are marked "NC" for two consecutive weeks. None
of them were crossed off. One member, J. Phillips, is
marked "NC" for 3 consecutive weeks but was not
crossed off. The removal of McCaffrey from the list on
19 September at the latest on the alleged ground he did
not call in on 16 September is curious indeed and gives
rise to a serious question of Cucchero's bona fides when
he struck McCaffrey's name because the 15 others" simi-
larly situated vis-a-vis the 16 September list were permit-
ted to continue on the list , including 39 who also were
marked "NC" on the week of 23 September, one of
whom, M. Ferguson , was marked "NC" all 3 weeks.
Moreover, Siles and Guerra , the only others the 16, 23,
and 30 September lists show crossed off as "NC," were
not crossed off until the week of 16 September even
though their failure to call occurred the week of 9 Sep-
tember. From the foregoing, I conclude the Union's own
out-of-work lists maintained by Cucchero and his secre-
tary strongly suggest McCaffrey was singled out for less
lenient treatment and immediate removal from the list for
some reason other than the bare failure to call in on one
occasion , and clearly give no support to Respondent's
thesis that McCaffrey's name was struck the week of 16
September because he did not call in that week as the
bylaws require.
The Union concedes , and I find, that the mere receipt
of a clearance card neither removes a member from
membership nor the out -of-work list. I have also found
that McCaffrey did call Cucchero on 16 and 23 Septem-
ber and requested to be continued on the out-of-work
list. Cucchero refused on 16 September and at the begin-
ning of the 23 September call on the ground McCaffrey
had cleared out of Local 1931. This reason was plainly a
false reason . Contrary to the General Counsel, I do not
believe the evidence warrants a finding that McCaffrey's
candidacy or campaign letter were reasons for his exclu-
sion from the out-of-work list. The real reason for Cuc-
chero's action in removing McCaffrey from the out-of-
work list was, I find, strong suspicion that McCaffrey
e E. Seymour , G. Bell Jr., E. Reid Jr ., E. Moreau, A. May, C. Oliver,
J. Uzee, A. Jurich , B. Troxler, T. Pickett, M. Ferguson , J. Phillips, L.
Cazoux, W. Scully , and D. Endy.
T. Pickett , M. Ferguson , and S . Phillips.
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had called the Lafayette local.10 If the fact Cucchero
was clearly upset by McCaffrey's deplorable conduct of
13 September, as his intraunion charge indicates, was an
additional consideration for striking McCaffrey's name,
neither one nor both are permissible reasons for exclud-
ing a member from referral through an exclusive hiring
procedure.
Summing Up
Local 1931 operates an exclusive hiring hall. Members
are referred to work if they are on the out-of-work list.
Cucchero excluded McCaffrey from the list the week of
16 September because he suspected McCaffrey of report-
ing to the Lafayette business agent that Local 1931 mem-
bers were working in his jurisdiction, and/or because
Cucchero resented the belligerent conduct and obscene
epithets of McCaffrey on 13 September. Cucchero's un-
happiness with what he believed to be McCaffrey's
phone call to Lafayette and/or McCaffrey's conduct at
the union office on 13 September, however offensive it
might have been personally to Cucchero, are not
grounds to exclude McCaffrey'from the referral proce-
dure." In Carpenters Local 25 (Mocon Corp.), 12 the
Board adopted the administrative law judge's decision in-
cluding the following statement:
The Board has held that a union's power in the
hiring hall setting is so great that any union action
which prevents an employer's hire of an employee
will be presumed to encourage union membership
among those who perceive the union's actions and
hence will be found to violate Section 8(b)(1)(A)
... of the Act.
Cucchero's action in deleting McCaffrey's name from the
out-of-work list obviously prevented the referral of
McCaffrey under the established exclusive hiring hall
procedure.' That jobs may not in fact have been available
to refer McCaffrey to during the period his name was off
the list does not diminish the seriousness of Cucchero's
conduct. 13 The General Counsel has set forth a prima
facie case that Section 8(b)(1)(A) of the Act has been
violated by the exclusion of McCaffrey from the referral
process because Cucchero was displeased with McCaf-
frey's suspected conduct in June consisting of a phone
call to the Lafayette, and/or his known conduct of 13
September. The Union's proffered defense that McCaf-
frey did not call in as required by the bylaws, and was
therefore properly struck off from the out-of-work list
has been defeated by the credited facts. The asserted
lawful reason failing, all that remains are the unlawful
reasons that gam strength from the failure of the asserted
reason. Shattuck Denn Mining Corp. v. NLRB, 362 F.2d
466, 470 (9th Cir. 1966). Moreover, the timing of the
10 McCaffrey says he did not call. There is no evidence to the con-
trary
11 See, e g , Millwrights Local 1699, 159 NLRB 1337 (1966); Polls Wall-
covering Co, 262 NLRB 1336, 1341-1343 (Pygatt (1982)); Longshoremen
ILA Local 1408, 258 NLRB 132 (1981)
12 270 NLRB 623, 630 (1984)
13 Utility & Industrial Construction Co., 214 NLRB 1053 (1974), Mill-
wrights Local 2834 (Atlantic Maintenance), 268 NLRB 150, 156 (1983)
action against McCaffrey hard on the heels of his 13
September conduct provoked by Cucchero's inquiry sug-
gests cause and effect, and the apparently more lenient
treatment accorded members other than McCaffrey
when they did not call in as the bylaws require indicates
McCaffrey was singled out for more stringent treatment.
The only reasons in the record likely to give rise to that
conduct are Cucchero's suspicions and McCaffrey's ques-
tionable conduct on 13 September. That conduct is not
to be condoned, but it and/or Cucchero's suspicions may
not lawfully be utilized as reasons to deny access to the
referral system.
On the foregoing findings of fact and conclusions
based thereon, I make the following
CONCLUSIONS OF LAW
1. R.M.S., Incorporated is an employer within the
meaning of Section 2(2) of the Act engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By removing John W. McCaffrey' s name from its
out-of-work list about 16 September 1985 for arbitrary,
discriminatory, and irrelevant considerations, Respondent
violated Section 8(b)(1)(A) of the Act.
4. The unfair labor practice set forth above is an unfair
labor practice affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
I shall recommend no remedy other than the usual
cease-and-desist and posting requirements inasmuch as it
does not appear that McCaffrey lost any work or wages
as a result of his name being off the out-of-work list for
approximately 2 weeks, and he refused suitable employ-
ment when his name was restored to the list. At first
glance the mere removal of McCaffrey from the out-of-
work list with no loss of earnings for a period of 2
weeks, at the end of which time he was restored to the
list, might seem to be a very minor matter not requiring
the Board's involvement. The matter is not, however, so
insubstantial that the misconduct was rendered insignifi-
cant by Respondent's subsequent act of restoring McCaf-
frey to the list,14 or was so miniscule and isolated as to
require no remedy. 115 Here we have conduct which ef-
fectively removed an individual from employment with
all employers securing employees through the hiring
hall. That the removal lasted for only a short time and
did not cause any monetary loss should not be control-
ling. The real question is whether it effectuates the pur-
poses of the Act to forestall a repetition or expansion of
such conduct by the issuance of a remedial order. I be-
lieve it does.
The General Counsel's request for a visitatorial clause
authorizing the Board to seek discovery in compliance
matters under the supervision of a Federal appeals court
and in the manner provided in the Federal Rules of Civil
34 Compare Musicians Local 76, 202 NLRB 620 (1973)
15 Compare Woodworkers (Central Veneer), 131 NLRB 189 (1961)
MILLWRIGHTS LOCAL 1931 1073
Procedure is unnecessary in the circumstances of this
case and is denied.
[Recommended Order omitted from publication.]