PLUMBERS AND PIPEFITTERS LOCAL UNION NO. 403
Plumbers and Pipefitters Local Union No. 403, af-
filiated with the United Association of Journey-
men and Apprentices of the Plumbing and Pipe-
fitting Industry, AFL-CIO (Pullman Power
Products) and Celestino Manuel Martin, John
P. Martin, and Kenneth M. Baldwin. Cases 31-
CB-3860, 31-CB-3938, and 31-CB-3969
March 22, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND ZIMMERMAN
On September 10, 1981, Administrative Law
Judge Clifford H. Anderson issued the attached
Decision in this proceeding.' Thereafter, Respond-
ent filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and
to adopt his recommended Order, as modified
herein. 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Plumbers and Pipefitters Local Union No. 403, af-
filiated with the United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting
Industry, AFL-CIO, its officers, agents, and repre-
sentatives, shall take the action set forth in the said
recommended Order, as so modified:
1. Substitute the following for paragraph 2(g):
"(g) Cause, at its expense, the attached notice to
be printed in any newsletter or newspaper prepared
by the Union and distributed to its members."
On September 14, 1981, the Administrative Law Judge issued an
Errata to his Decision.
2 The Administrative Law Judge inadvertently stated that the Employ-
er's shutdown of work was to take effect on June 1, 1980, when in fact
the shutdown was effective July 1, 1980. The Administrative Law Judge
also inadvertently referred to June 22, instead of July 22, as the alleged
commencement of Respondent's refusal to dispatch nonmembers, and
stated that the contract ratification process occurred in June and August,
rather than July and August. We hereby correct these errors.
I In view of the fixed number of identified discriminatees and the Ad-
ministrative Law Judge's provision for the posting and distribution of the
notice, we find it unnecessary to require Respondent to publish the notice
in a newspaper of general circulation. We shall delete this provision from
the Administrative Law Judge's recommended Order and modify the
notice accordingly.
261 NLRB No. 40
2. Substitute the attached Appendix for that of
the Administrative Law Judge.
APPENDIX B
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Board has ordered us to:
1. Obey the terms of this notice.
2. Publish this notice in any union news-
letter or newspaper.
3. Mail a copy of this notice to Pullman
Power Products, to all Plumbers local
unions in Plumbers District 16, to all Plumb-
ers local unions whose members were dis-
criminated against by us, and to all employ-
ee applicants who were denied employment
opportunities by us because they were not
members of Plumbers and Pipefitters Local
Union No. 403, affiliated with the United
Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry,
AFL-CIO.
The National Labor Relations Act prohibits unions
from causing or attempting to cause an employer
to discriminate against an employee because of his
membership or lack of membership in a union.
Union-operated exclusive hiring halls must be oper-
ated on a nondiscriminatory basis.
WE WILL NOT cause or attempt to cause
Pullman Power Products or any other employ-
er to discriminate against any of the following
employees, or any other employees, because of
their lack of membership in Local 403 by fail-
ing to allow them to sign our hiring hall out-
of-work books, or by not dispatching them
consistent with nondiscriminatory application
of the contractually established hiring hall re-
ferral system.
Steve Selby
Arthur Mathis
Charles Gamble
Harold Holder
Don Tilley
Leo Bernhardt
Andrew Peak
Rick Dumouchelle
Virgil Walker
Al Furtado
Sherman Conner
George Carl
Richard Sims
Ben Koens
257
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Angelo Guidice Sadao Yabuno
Kenneth Baldwin Sage Dibble
John Hughes John Nagy
Doug King Terry Denning
Ken Harris John Martin
Celestino Martin John Maloney
WE WILL NOT operate our exclusive hiring
hall in a manner which discriminates against
nonmembers or Local 403 and/or discrimi-
nates against members of other locals affiliated
with the United Association.
WE WILL NOT refuse to allow members of
local unions affiliated with the United Associ-
ation other than Local 403 to register on the
hiring hall out-of-work lists.
WE WILL NOT fail and refuse to dispatch
members of local unions affiliated with the
United Association other than Local 403 who
would have been dispatched in accordance
with contractually established referral system
policy and practice but for our discrimination
against them.
WE WILL NOT threaten and coerce employ-
ees by telling them that the Union caused the
July 1980 Pullman Power Products job shut-
down and thereafter caused the job to be re-
dispatched through the union hiring hall in
order to eliminate from employment members
of local unions other than Local 403 and to re-
place those employees with members of Local
403.
WE WILL NOT require employee referral ap-
plicants who are members of local unions
other than Local 403 to sign their travel cards
in a manner indicating they were no longer
seeking work in the area thus allowing the
Union to terminate their future employment
opportunities at will.
WE WILL NOT threaten employees with
harm, loss of employment, or denial of future
employment unless they drop charges filed
with the National Labor Relations Board
against Local 403.
WE WILL NOT in any like or related manner
restrain or coerce employees or cause employ-
ers to restrain or coerce employees in the exer-
cise of the rights guaranteed them in Section 7
of the National Labor Relations Act.
WE WILL notify each employee named
above and Pullman Power Products that we
have no objection to said employees' employ-
ment and/or continued employment.
WE WILL make the employees named above
whole for losses they may have suffered as
result of our discrimination against them, with
appropriate interest.
WE WILL keep and retain for the period
Pullman Power Products employs our hiring
hall to procure unit employees at the project
permanent written records of our hiring and
referral operations which will be adequate to
disclose fully the basis on which each referral
is made, and, upon the request of the Regional
Director for Region 31, or his agents, make
available for inspection, at all reasonable times,
any records relating in any way to the hiring
and referral system.
WE WILL submit four quarterly reports to
the Regional Director, due 10 days after the
close of each calendar quarter, concerning the
employment of the nonmember applicants
listed above. Such reports shall include the
date and number of job applications made to
us, the date and the number of actual job re-
ferrals by us, and the length of such employ-
ment during such quarter period.
WE WILL place the referral registers, for the
above-described period, on a table or ledge in
the hiring hall for easy access and inspection
by the applicants, as a matter of right, upon
the completion of each day's entries in such
registers.
PLUMBERS AND PIPEFITTERS LOCAL
UNION No. 403, AFFILIATED WITH
THE UNITED ASSOCIATION OF JOUR-
NEYMEN AND APPRENTICES OF THE
PLUMBING AND PIPEFITTING INDUS-
TRY, AFL-CIO
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge:
This matter was heard before me on April 21, 22, and 23,
1981, in Santa Maria, California, and on May 4, 1981, in
San Luis Obispo, California. The case arose as follows.
On August 13, 1980, Celestino Manuel Martin filed a
charge in Case 31-CA-10318 against Pullman Power
Products (herein the Employer) and a charge in Case 3-
CB-3860 against Plumbers and Pipefitters Local Union
No. 403, affiliated with the United Association of Jour-
neymen and Apprentices of the Plumbing and Pipefitting
Industry, AFL-CIO (Respondent or the Union and the
United Association or the Plumbers International respec-
tively). On September 30, 1980, the Regional Director
for Region 31 of the National Labor Relations Board
(Regional Director and Board, respectively) issued an
order consolidating cases, consolidated complaint and
notice of hearing with respect to these two cases. On
October 10, 1980, John P. Martin filed a charge in Case
31-CB-3938 against Respondent which he amended on
November 24, 1980. On November 24, 1980, Martin filed
a charge in Case 31-CA-10656 against the Employer. On
258
PLUMBERS AND PIPEFITTERS LOCAL UNION NO. 403
October 31, 1980, Ken M. Baldwin filed a charge in Case
31-CB-3969 against Respondent which he amended on
December 16, 1980. On December 29, 1980, the Regional
Director issued an order consolidating cases, amended
consolidated complaint and notice of hearing consolidat-
ing all of the above cases. On March 10, 1981, the Re-
gional Director issued an order severing cases and with-
drawing in part amended consolidated complaint and
notice of hearing severing Cases 31-CA-10318 and 31-
CA-10656 from the instant proceeding.
All parties were given full opportunity to participate
at the hearing, to introduce relevant evidence, to exam-
ine and cross-examine witnesses, to argue orally, and to
file post-hearing briefs.'
Upon the entire record2 herein, including briefs sub-
mitted by the General Counsel and Respondent, and
from my observation of the witnesses and their demea-
nor, I make the following:3
FINDINGS OF FACT
I. JURISDICTION
The Employer is a division of the M. W. Kellog Com-
pany, a Delaware corporation which is in turn a subsidi-
ary of Wheelabrator-Fry. 4
At all relevant times the Employer has performed pipe
installation work at a nuclear power plant under con-
struction for the Pacific Gas Electric Company at Diablo
Canyon, California (Project or Diablo Canyon). The
Employer has annually enjoyed revenues in the millions
of dollars from its Project work and annually purchases
goods and materials for its Project work of a value ex-
ceeding $50,000 from suppliers located outside the State
of California.
II1. THE LABOR ORGANIZATION
Respondent is an organization which exists for the
purpose, in whole or in part, of dealing with employers
concerning grievances, labor disputes, wages, rates of
pay, hours of employment, or conditions of work.
At all relevant time Gene Davis has been Respond-
ent's president and the Union's job steward for the Em-
ployer's employees at the Project. C. Ray Skidgel has
been Respondent's business manager and Bobbie T.
Swearengen has been Respondent's dispatcher/secretary.
Don Bachus and Ray Tillman have been members of Re-
'The date for submission of briefs was set at the close of the hearing
for June 8, 1981, but was extended by the Deputy Chief Administrative
Law Judge until July 8, 1981.
'The General Counsel's unopposed motion to correct the transcript is
granted.
3 A significant portion of the facts appearing below were not disputed.
Unless otherwise noted, these findings are based upon admitted pleadings,
stipulations, admissions, unchallenged documents, or the uncontested tes-
timony of credible witnesses.
'Apparently the corporate structure and ownership of the Employer's
controlling corporations were in flux in 1980 with a formal change in
corporate ownership occurring on November 6, 1980. The legal titles of
the various holding entities at various times are unnecessary to resolve in
this proceeding. For that reason I have deleted the attribution of the Em-
ployer as "a division of Pullman, Inc." in the original case caption and
have not substituted any other divisional ascription.
spondent's executive board. Each has at relevant times
been an agent of Respondent.s
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Contentions
The General Counsel in its final amended consolidated
complaint, as further amended orally at the hearing, al-
leges various statements by Respondent's agent made to
employees and employee applicants as violative of Sec-
tion 8(bXIXA) of the National Labor Relations Act. It
further alleges that Respondent engaged in a course of
conduct designed to discriminate against nonmembers
who were employed by the Employer by failing and re-
fusing to allow the hiring hall registration of, or to
permit the dispatch of, employees to the Employer be-
cause of the lack of membership of the referred employ-
ee in the Union in violation of Section 8(bXlXA) and (2)
of the Act.
Respondent generally denies the conduct attributed to
its agents and further denies that certain of the conduct
alleged is violative of the Act. With respect to the alle-
gations regarding the prevention of return of the Em-
ployer's nonmember employees to their former employ-
ment and the registration and dispatch refusals, Respond-
ent makes several arguments. First, Respondent attacks
the sufficiency of the amended complaint to create a
valid "class" of discriminatees without first meeting the
procedural requirements of the Federal Rules of Civil
Procedure for certification of such a class. Second, on
the merits, Respondent alleges that the actions its agents
undertook with respect to the dispatch of employees
were motivated by legitimate trade union objectives free
from any consideration of impermissible preference based
on membership or nonmembership in the Union.
B. Events
1. Background
a. The bargaining relationship and dispatching
procedure
The Employer and its predecessor companies have
been engaged in the installation of piping, pipe supports,
and pipe break restraints at the Project for many years.
In so doing it primarily employs pipefitters and welders.
The Employer and the United Association, the Interna-
tional Union of which Respondent is but one of many af-
filiated local unions (locals), have at relevant times had a
collective-bargaining relationship covering a unit of em-
ployees including the pipefitting and welders employed
by the Employer at the Project (unit). This relationship
has been reflected at all relevant times in a collective-
bargaining agreement (National Agreement) covering the
unit which provides for certain terms and conditions of
I These agency relationship were admitted by Respondent in its initial
answers to the various complaints but were denied in its answer to the
final consolidated complaint. The record evidence was undisputed as to
title and function of each agent as well as the holding out by Respondent
of these individuals as possessing authority to fulfill their respective func-
tions. I find each to have sufficient apparent authority to make them
agents of Respondent within the meaning of the Act.
259
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment to be established by separate contracts en-
tered into on a local level between the Employer and
various locals including the Union (local agreements and,
between the Employer and the Union, the local agree-
ment). If the local agreements expire the National Agree-
ment provides that the Employer may lock out its em-
ployees or the local unions strike in support of their re-
spective positions without violating the National Agree-
ment.
The applicable contracts contained at all times relevant
herein identical provisions establishing the Union as the
exclusive source of unit job applicants. At all times mate-
rial the Employer and the Union have utilized the em-
ployment system set forth in their national and local
agreements. The Union maintains a dispatch office at its
union hall where it keeps its work registration records.
The Employer relies on the Union's dispatch process ex-
clusively for its unit employees including the unit's su-
pervisory staff at certain levels.
The contracts have at all times material contained a
detailed registration system which provides for dispatch
priority by categories with the employees in a superior
category having priority over all employees in inferior
categories. Within a given category, chronological order
of registration controls order of dispatch. The various
categories require a qualifying number of hours worked
as journeymen in a particular geographical area. Group
one requires a given number of hours worked in the
local area, group two in a larger area, and so on. These
priorities obtain only to the hiring process and do not
provide bumping privileges; i.e., higher qualified appli-
cants do not replace lower qualified employees: once an
applicant obtains employment he is not displacable
during his employment by other applicants.
The Employer may request either a qualified welder
or pipefitter. An applicant with the required skill would
then be dispatched from the union office in accordance
witht the above priorities. The Employer, under the con-
tract, may also request specific named individuals be
disptached to it providing the individuals requested are
registered in group one or two and further providing
that the total number of "name requested" individuals
does not exceed 50 percent of the total number of refer-
ence requested.
b. Pre-1980 bargaining history
John W. Ryan, the Employer's resident construction
manager and chief officer at Diablo Canyon, testified
credibly regarding the recent history of work stoppages
involving Respondent antedating the events here in dis-
pute. When the local agreement expired in 1974, the Em-
ployer chose to shut down its Diablo Canyon operations
pending agreement on a new local agreement.6 Unit em-
6 Ryan also testified that the Employer normally did not bargain di-
rectly with the Union concerning a new local agreement but rather
adopted the contract negotiated between a multiemployer association-of
which the Employer was not a member-and District 16, a group of
southern California locals of the United Association including the Union.
The local agreement and contracts between the United Association and
various employers in the southern California area apparently expired si-
multaneously and to a certain extent negotiations were conducted direct-
ly or indirectly by a single negotiation process between the District and
the various employers.
ployees were not then fired, laid off, or changed in their
payment status by the Employer although, of course,
they did not work and were not paid for the period of
the shutdown. After the shutdown continued for a
period of months, the Employer determined that it could
not resume operations with all full crew because-as a
result of the duration of the shutdown-its welder em-
ployees had suffered the lapse of their welding certifica-
tions the necessary restoration of which would require
time-consuming retesting.7 Accordingly, even though the
local dispute had by that time been resolved, the Em-
ployer notified its pipefitters and welders that they were
being formally laid off due to a "reduction in force."
Thereafter, the crew were slowly reemployed as the cer-
tification process and work rescheduling would allow.
Other than in this instance, the Employer had regularly
taken back its unit employment complement as a body to
resume operations after a labor dispute-economic or ju-
risdictional-without modifying the employees' status or
utilizing the Union's hiring hall procedures to effect,
ratify, or approve the employment resumption.
In 1979 some 27 unit employees (sometimes referred to
as "the 27") had occasion to engage in certain conduct
for which the Employer terminated them and thereafter
refused to consider them eligible for rehire. The Union
disputed the Employer's action but, until the events dis-
cussed below, had not persuaded the Employer to re-
scind its determination to refuse these individuals reem-
ployment. The majority of these employees were mem-
bers of the Union, a few were travelers. 8
2. The 1980 shutdown and related Events9
The 1977-80 local agreement expired by its terms on
June 30. On June 24, Employer through its vice presi-
dent, Evans, notified the United Association and the
Union that it was exercising its contractual right to "stop
work" at the Project effective June 1 until "a new agree-
ment is reached." The Employer was not negotiating di-
rectly with the Union or the United Association but
rather had agreed to adopt the contract terms reached in
the independent negotiations between a multiemployer
association and the local unions in District 16. Those ne-
gotiations had not culminated in an agreement as the
contract's expiration date approached so that the Em-
ployer and the Union could well anticipate the Employ-
er's announced shutdown would occur.
' The evidence concerning the specifics of the welder certification
process is scanty. I judicially notice that certain craftsmen including
welders engaged in the contruction of nuclear power plants which the
Diablo Canyon plant is intended to be, must maintain current certifica-
tions reflecting minimum levels of knowledge and skill to allow the com-
pleted structure to be ultimately licensed for operation by governmental
authorities.
' While, insofar as the record reflects, all unit employees at relevant
times were members of one or another of the various locals of the United
Association, those individuals who were members of the Union's sister
locals were commonly referred to in the record as travelers and will be
so refered to herein. Traveler status is solely determined by the identity
of the local in which the employee holds membership. It is not indicative
of the location of the employee's temporary or permanent residence nor,
importantly, of the dispatch group for which a given employee qualifies.
' Dates hereinafter are 1980 unless otherwise indicated.
260
PLUMBERS AND PIPEFITTERS LOCAL UNION NO. 403
Gene Davis was the Union's president and unit job ste-
ward at Diablo Canyon. As the June 30 shutdown ap-
proached, Davis informed unit employees in groups and
held individual discussions concerning the impending
closure. He told union members to go to the union hall
and register on the Union's dispatch out-of-work books,
explaining that the Union's hiring hall would be utilized
to restaff the job at the end of the shutdown. He told the
travelers to go to the union hall, to "pull" or withdraw
their travel cards,'° and to return to their home locals.
After the job shutdown, paychecks were distributed to
unit employees on July 3 in a Project parking lot. Davis
there spoke to various employees regarding the shut-
down and its consequences. Celestino Martin testified
that he was present when Davis was asked by a welder,
Mark Fletcher, when travelers would be allowed to
return to work after the strike. Davis answered,
They won't be allowed to. That's one of the big
reasons for this strike: to get travelers off this job
and our Union back in 403 hands .... We were
offered an interim agreement but for this reason, we
didn't take it.
Over a period of days before and after the job shut-
down, consistent with Davis' instructions, the union
members went to the union hall and signed the appropri-
ate out-of-work book indicating an interest in being dis-
patched to the Project when work resumed. The Union
hall employee responsible for maintaining the referral
and registration system was Bobby Sweargen, the
Union's dispatcher and secretary. During the same
period, a number of travelers withdrew their travel cards
from the union hall. Thus, unit employee Terry Denning
testified that he requested and received his travel card
from Swearengen on July 2. In so doing he told her that
while there was considerable "squabble" regarding the
Union's procedures regarding the project shutdown, he
felt it was "right." Swearengen responded that it was
"right" and that Denning would probably be "one of the
first hires on when it came time to do it again."
Other travelers, however, did not withdraw their
travel cards from the Union but rather sought of Swear-
engen or Skidgel an opportunity to register on the out-
of-work books." Through July, August, and until mid-
September, various travelers were regularly and repeat-
edly refused an opportunity to sign the out-of-work
books by both Swearengen and Skidgel.
During June and early July negotiations continued be-
tween the multiemployer association and various locals
unions comprising District 16, including the Union, con-
cerning new contracts. Skidgel was involved in those ne-
gotiations. Two agreements, were being negotiated: an
industrial agreement-relevant to the instant case- and
'o The United Association's internal procedures allow a local member
to work at jobs under contract with other locals. The home local issues
the member a "travel card" which may be filed with another local when
seeking work in that jurisdiction. See infra for greater detail.
" Given the experience qualifications required to sign the book of a
given group, applicants sign in chronological order and are dispatched,
absent special circumstances, in that order within the group. There is no
evidence that qualifying individuals had ever previously been denied the
opportunity to "sign the books."
a plumbing and heating agreement. On the evening of
July 15, the parties, with Skidgel present, signed a
memorandum of agreement covering the industrial agree-
ment. A new plumbing agreement was reached by July
21. Thereafter a series of meetings were held among the
locals, which culminated in the contract's ratification on
July 31.
On July 15, Skidgel wired the Employer that the
Union regarded the Employer's layoff as a termination of
unit employees. Thus, the Union asserted, when the Em-
ployer sought to restaff the Project it must do so
through the contractual dispatch procedures; i.e.,
through the Union's hiring hall.
Ryan received the mailgram on July 16 and responded
by wire on that same day asserting that the Employer
had not fired its employees but had rather exercised its
contractual right to stop work during the time there was
no local agreement. It added: "we must insist that those
employees on the payroll as of 4 p.m. June 30 be re-
turned to work upon negotiation of new Agreement."
The Employer did not received a response to this wire
from the Union. Within a few hours of sending his wire
Ryan learned of the agreement on contract terms
reached between District 16 and the multiemployer asso-
ciation. Despite this agreement the employees in the unit
did not thereafter return to their former jobs. Ryan com-
municated with his superiors and on July 23 to the Em-
ployer's vice president, Evans, sent a letter to the presi-
dent of the United Association, Martin J. Ward, recapitu-
lating the above events and the positions of the Employ-
er and the Union. It stated further: "[W]e cannot agree
that the dispatch procedure applies. We do not want to
face the possibility of qualifying and orientating new per-
sonnel at this stage of completion." The United Associ-
ation's assistance in resolving the dispute was solicited.
Ward responded by wire stating that the Employer's
communication had been forwarded to International
Representative Robert Costello who had been asked to
"investigate and resolve" the matter.
On August 1, Ryan met with Costello and Skidgel at
the union hall. Ryan apparently initially sought the
return of the June 30 crew to the job as a body. That
request failing, Ryan tendered to Skidgel a list of about
70 names of former employees which he requested be
dispatched to the job along with at least a matching
number of unnamed individuals. Skidgel told Ryan that
the Union would soon commence dispatching referents.
In this meeting Skidgel also asked that Ryan remove the
"ineligible for hire" status of the 27 employees fired in
1979. Ryan refused.
The Union commenced dispatching union members to
the Employer on August 4 and within approximately I
week the union members who had been working in June
and had thereafter signed the out-of-work books were
again on the job. No travelers, including those on Ryan's
name request list of August 1, were dispatched. Ryan
from time to time requested additional referents as the
personnel requirements of the job increased. These re-
quests were both for referents generally and by specific
name request. For example, on August 5 or 6, Ryan
called Dispatcher Swearengen and asked her to dispatch
261
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
former employee and traveler Richard Dumouchelle to
the job. She responded only that "he's Local 230," a
sister local of the Union. Dumouchelle was not dis-
patched until mid-October. During this period no specif-
ic request for the dispatch of a traveler was honored.
Ryan, Skidgel and, perhaps, Costello met again in the
latter part of August. Skidgel again sought reemploy-
ment of the 27 but Ryan refused to take them back.
Ryan requested that his former general foreman and
traveler Donald Tilley be dispatched immediately inas-
much as he had been included on his earlier dispatch re-
quest list. Skidgel merely shook his head negatively and
did not further respond. Another individual, a union
member, was ultimately selected by the Employer to fill
the position previously held by Tilley before the shut-
down.
3. Dispatching after the shutdown
The Union dispatched only union members until Sep-
tember 15. From the first day of dispatching forward the
Union included among the applicants dispatched refer-
ents who had not worked for the Employer during the
period immediately preceding the shutdown. By August
11 these "new" union member applicants constituted a
majority of the individuals dispatched each day by the
Union. Thus, the job was in fact restaffed by union mem-
bers. On September 15 the Union began to allow travel-
ers to register on Book two irrespective of their qualifi-
cation for the higher Book one, the superior classifica-
tion. Simultaneously the Union commenced dispatching
travelers who had been employed by the Employer at
the time of the shutdown. During this process, union
members who registered on Book two were dispatched
to the Project immediately but the Union allowed no
travelers to sign the books until the union members were
sent out. By November 12 the Union did dispatched 19
of the 26 travelers who had been employed on the
Project in June. Of the remaining seven there is evidence
that the Union believed five were no longer interested in
or available for dispatch. Of the remaining two, Celes-
tino Martin and Ken Baldwin, Baldwin returned to work
as the result of the settlement agreement between the
Board and the Employer; Celestino Martin, discussed in
greater detail, infra, retained other work in a different
locale.
Travelers Harris and Carl became members of the
Union effective October 2. Harris had been dispatched to
the Project on September 16; Carl was dispatched on
October 6. Six travelers had been on the August 1 name
request list submitted by Ryan to Skidgel: Mathis, Tilley,
King, Harris, Dumochelle, and Walker. All had been dis-
patched by October 16, save Walker who apparently re-
tired on September 10. The 26 travelers who had been
employed by the Employer in June were qualified for
Book one registration (based on over 3,000 hours worked
for the Employer) save for Nagy, Denning, and John
Martin. Traveler Maloney was dispatched to two non-
Project jobs by the Union on September 16 and 17, re-
spectively, prior to his dispatch to the Project on No-
vember 12.
The Union attempted to dispatch three individuals of
the 27 on August 25 but these applicants were rejected
by the Employer. That same day the Employer accepted
the dispatch of a fourth member of that group. Thereaf-
ter on October 6 through 15 the Union dispatched and
the Employer accepted 10 other members of the 27. All
of those dispatched from the 27 were union members.
No travelers from the group of 27 were dispatched nor is
there any evidence that any attempted to register with
the Union.
The Union would not notify a traveler that he could
register on the books until it had determined it would
dispatch him. As travelers came into the union office im-
mediately prior to being dispatched to the Project,
Swearengen asked at least several of them to sign their
travel cards at each end or twice. The cards are normal-
ly signed initially when submitted to the local where
work is sought and a second time when the card is with-
drawn from the local indicating the individual is no
longer interested in work in the area.
4. Additional events involving the Charging Parties
a. Celestino "Tino" Martin
Celestino Martin did not remove his travel card from
the union hall after the shutdown. He and other travelers
continued to pay travel dues"2 and from time to time
checked with the Union regarding work resumption and
dispatch opportunities. Swearengen on several occasions
told him travelers were not going to be allowed to sign
the out-of-work book or commence work until all union
members were working. She also asked him if he wished
to pull his traveler card. So, too, Skidgel spoke to Martin
in early August and told Martin travelers would not be
allowed to register on the books nor work at the Project
until all registered union members were dispatched.
Martin sought from Skidgel a letter stating that the
Union would not allow him to register so that he could
explain his apparent failure to register for work to the
state unemployment agency-apparently Martin's worry
was that a failure to register for work suggested a con-
comitant failure to seek employment perhaps jeopardiz-
ing his unemployment compensation. Skidgel refused.
Soon thereafter Martin filed his charge on which com-
plaint issued on September 30.
On October 13, by mailgram, the Union sent the fol-
lowing message to Martin:
We have been trying to reach you for some time
now. We have been dispatching quite a few to jobs
in San Luis Obispo County but have been unable to
contact you. You have been eligible to sign our
book number one since July I but have never been
up to sign for work. Please notify us if you are still
interested in work.
C. Ray Skidgel,
Business Manager UA Local 403
A day or two thereafter, Martin called Skidgel and
asked what type of work was available. Skidgel told him
112 Travel dues, which were paid to the Union pursuant to United Asso-
ciation procedure, were greater than the normal dues paid by union
members.
262
PLUMBERS AND PIPEFITTERS LOCAL UNION NO. 403
the available work was other than at the Project and
Martin expressed interest only in his previous Project
job. Skidgel replied that there was no request for refer-
ents to the Project at that time. Martin queried Skidgel
regarding the mailgram's assertion that he had been eligi-
ble to sign the out-of-work book since July I when the
Union and Skidgel personally had told him he could not
sign the books as recent as August. Skidgel denied
Martin had been told he could not sign and asked if
Martin was calling him a liar. Following this conversa-
tion, Martin had no contact with the Union until the
hearing.
b. Ken Baldwin
Ken Baldwin, a traveler and June employee in the
unit, attempted to sign the register at the union hall in
July but was told by Swearengen that Skidgel was not
allowing travelers to sign the book. Swearengen also
asked Baldwin to withdraw his travel card from the
Union but he refused. In early August, Baldwin spoke to
Skidgel by phone and was told that, when Skidgel start-
ed sending travelers to the Project, he would be includ-
ed. In August and early September, Baldwin regularly
checked with the Union regarding dispatch prospects but
was told by the Dispatcher that there was no referral re-
quest for which he was qualified.
On August 23, Baldwin's wife mailed a letter to
United Association President Ward complaining of her
husband's having been refused by the Union an oppor-
tunitiy to sign the out-of-work book for which he was
qualified under the contract. In early September, Bald-
win was told by Swearengen at the union hall that the
secretary of his home local, Local 114, was trying to
reach him. Baldwin responded that he or his wife had
been at their residence at all times. Baldwin returned to
his home and called Local 114's office. He spoke with
the Local 114 secretary-dispatcher who denied that she
had attempted to call Baldwin, adding that his name was
not on her list of people to be called. Baldwin told her of
Swearengen's earlier comments to him on the phone.
The secretary-dispatcher again said that she had not tried
to call him and then asked if Baldwin "wasn't the one
who wrote a letter." Baldwin thereafter spoke to Local
114's business agent, Ray Forman, during the same
phone call. Forman told Baldwin that he had arranged
with Skidgel to allow the Union to contact Local 114's
travelers who had worked on the Project in June direct-
ly when travelers were to be dispatched to the job. He
added that Skidgel "did not keep his word." Thereafter,
in late September, Baldwin had Swearengen pull his
travel card and return it to his home local. At the same
time he, at Swearengen's request, signed a separate
sheet-not part of the formal out-of-work resgistration
system-which bore the names of travelers who had
been on the Project in June.
Baldwin filed his charge on October 31. He was never
dispatched by the Union to the Project but was reem-
ployed directly by the Employer in mid-April 1981 as
part of terms of the settlement agreement noted supra. In
February 1981 while at Local 114's office, Ray Forman
told Baldwin that unless he dropped his charge Forman
would be "down on him," that Local 114 travelers
would have difficulty obtaining traveler work, and that
Ray Skidgel would never send him to the Project.
c. John Martin
John Martin too was told by Davis at the Project
parking lot on July 3 that travelers would not be return-
ing to work and was told by Swearengen and Skidgel in
July at the union hall that he could not sign the out-of-
work books. Skidgel told him that the Union was going
to dispatch union members first and then travelers on a
geographical basis: District 16 members first, other Cali-
fornia members next, and other members thereafter.
In early August, John Martin learned that he had been
requested for dispatch by name by the Employer and
spoke to Swearengen at the union hall regarding the
matter. Swearengen denied that anyone had been re-
quested by name. In this or in another conversation in
early August, when Martin inquired generally about
work possibilities, Swearengen asked him if he was a
traveler. When he answered that he was, Swearengen
asked if he had previously pulled his travel card. He said
he had not. Swearengen replied that Skidgel told her
that those travelers who had not pulled their cards
would be among the last to return to he job. When
Martin asked why this was so, Swearengen demurred
and referred Martin to Skidgel who was at that time not
available. She stated that she was only dispatching union
members, Martin asked if he could pull his travel card at
that time but Swearengen told him that it was now too
late to do that.
Again in late August, John Martin was denied an op-
portunity to sign the out-of-work books and was again
told by Swearengen only union members were being dis-
patched to the Project. Martin told Swearengen that his
traveler friends had been allowed to sign a separate trav-
eler out-of-work list and that he too wished to sign such
a list. Swearengen then produced a yellow legal tablet
with some signatures on it which Martin was allowed to
sign. Is Later, when travelers had begun to be dispatched,
Martin again spoke to Swearengen who told Martin that
only travelers from District 16 were then being dis-
patched. Martin thereafter regularly frequented the union
hall but was told on each occasion by Skidgel or Swear-
engen that there was no request for referral for which,
he was eligible. Martin later spoke with Swearengen at
the union hall and told her he had learned that the 27
earlier fired from the Project were then being dis-
patched. Swearengen said that was so. Martin asked
about this own dispatch prospects and was told that he
would not be dispatched until the 27 had been sent out.
John Martin filed his charge on October 10 and re-
turned to unit work on October 15 through the Union's
dispatch procedure. On October 16, while on the job, he
was approached by Gene Davis who told him that since
he was back at work he should drop the charge he filed
"t The regular hiring hall books are specially prepared, sequentially
numbered columned sheets with provision for multiple entries during the
referral procedure as the applicant is processed. The sheet of paper men-
tioned here was but an ad hoc informal list of names. There is no evi-
dence that such a second set of books had been utilized previously by the
Union.
263
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the NLRB against the Union. Martin said he
wished to talk to his attorney and Skidgel before he
made such a decision. Davis arranged a meeting between
Skidgel and Martin. Skidgel and Martin met the follow-
ing day. Skidgel asked Martin if he felt that he should
drop the charges now that he was at work. Martin said
he was not "ready yet." Skidgel told Martin that he
would not have dispatched Martin to the Project if he
had known that Martin had filed charges. The two men
disputed the propriety of both Skidgel's and Martin's ac-
tions to that time and their views of the purposes of a
union Skidgel told Martin, in Martin's recollection: "I
just wish you could forget this because, if you don't, you
know it'll mean the end of you working as a Union
member." Martin agreed but asserted his actions had
been necessary. Skidgel told Martin that, if he would im-
mediately withdraw what Skidgel characterized as "this
noose going around my neck," few would learn of it and
"it won't go any further." Martin said he would like to
keep it "that way" until he could talk to his attorney.
The two agreed that the status quo would obtain for a
time and the conversation ended.
On the job in early November, Martin was again ap-
proached by Davis who asked him if he was ready to
drop his charges yet. Martin indicate he was not yet
ready. The conversation continued with Davis adding:
"You know, you've committed suicide as far as working
as a Union member goes."
Martin was thereafter approached on the job in late
November by Don Bachus and Ray Tillman who intro-
duced themselves as members of Respondent's executive
board. Bachus asked Martin if he was going to drop his
charge against the Union. Martin said that he was not.
The conversation continued. Bachus added:
Well, there's this much about it, Martin. You can
either work here, or you can file charges against
this Local, but you can't do both. You've either got
to drop the charges or get off the job.
Tillman made similar comments and then Bachus added:
"I'll give you till 3:00 o'clock to make up your mind.
And then I'll be down to see you." He then asked where
Martin was working on the job and the conversation
ended.
At 3 o'clock that day, Tillman and a Mr. Villers the
union steward for a different employer at the Project,
came to Martin's work location at the Project. The three
had a conversation which ranged over Martin's continu-
ing refusal to drop his charge and the differing views
among the participants regarding the worth of Skidgel as
union business representative. Positions remained fixed.
Bachus concluded the conversation with the remark:
"Well, Martin, you can't say we didn't try to treat you
like a gentleman," whereupon the two left.
A few days later Skidgel came to the job and spoke
with Martin. He apologized for the fact that the "boys
on the E-Board gave you a hard time." Skidgel added
that if Martin would drop the charge he would "see to it
that all this harassment stops." Martin asserted he would
not be "pushed" into dropping his charges because he
was "made now." Skidgel told Martin that he would
"get these the guys off your back and tell them to leave
you along, period, whether you drop the charges or
not." Martin thanked Skidgel for the assurance and sug-
gested that, if undisturbed on the job for a time, he
might drop the charges but that he would not do so im-
mediately. Skidgel assured Martin that he would under-
take to have Martin left alone. Skidgel added, "You
know, you better do this before it goes to far, to drop
these charges before it goes to far, because if you don't
you'll never work on a Union job again." Martin said he
agreed but that he had little interest in "too much lon-
gevity." Thereafter Martin attempted to withdraw his
charge but the Regional Director did not accept his at-
tempted withdrawal.
C. Analysis and Conclusions
1. Credibility
The General Counsel adduced evidence from Ryan,
the three Charging Parties, and five other travelers who
had been employed by the Employer in June. 14 All were
mature individuals with substantial experience at the
trade. Respondent did not call any witnesses nor did any
documentary evidence or stipulations contradict the testi-
mony of the General Counsel's witnesses. Counsel for
Respondent cross-examined each witness at length and
argues strenuously on brief that the testimony of these
witnesses should be heavily discounted or discredited by
me based upon: their demeanor inconsistencies within
and between their versions of events, and, bias against
the Union. For the following reasons, I reject the argu-
ments of counsel for Respondent and credit the testimo-
ny of each witness.
First, Respondent is engaged in the difficult task of
seeking to discredit witnesses who testified to things they
said and did when no contrary witnesses or other evi-
dence was offered to contradict their testimony. Re-
spondent's agents did not testify nor was their failure to
do so explained on the record. Second, and independent
from any adverse inference resulting from the absence of
testimony by Respondent's agents, I quite simply found
that each of the General Counsel's witnesses exhibited a
sound and convincing demeanor. Each seemed to me to
willingly and forthrightly testify as to what he said,
heard, or did. I also reject Respondent's suggestion that
the travelers were antiunion and hence less than credible.
Each traveler witness-including Carl who later became
a member of the Union-was a longtime member of the
United Association and an affiliated local other than the
Union. While several witnesses testified that they be-
lieved that the Union's action regarding the instant
matter was improper-indeed, there were the Charging
Parties herein-I do not consider that evidence of bias,
although a proper factor for consideration, sufficient to
diminish my substantial confidence in the honesty and
forthrightness of each of the General Counsel's witnesses
in this case. While Respondent's cross-examination
brought forth some minor inconsistencies between the
testimony of the witnesses, I find the witnesses were
" George Carl, as noted supra, became a union member of the Union
on October 2. 1980.
264
PLUMBERS AND PIPEFITTERS LOCAL UNION NO. 403
truthfully testifying and that their flaws in recitation
flowed from (1) normal witness variation in recollection
and (2) the witnesses' greater experience as craftsmen
rather than in the courtroom. I conclude that no witness
demonstrated any lack of honesty or recollection.
Lastly, the witnesses testified individually to individual
acts and conduct by Respondent's agents which in their
totality present a motive and plan of action so consistent
that the testimony as a whole corroborates the individual
testimony of each witness. The events described present
a motive and course of conduct by Respondent's agents
which is both more probable than the alternatives sug-
gested by Respondent and more consistent with the un-
disputed documentary evidence.
2. Allegations of the complaint
While the normal format for an analysis of mixed
8(b)(1)(A) and (2) allegations discusses threats or similar
conduct before discharge or hiring hall conduct, Re-
spondent in the instant case did not directly address the
allegations of improper statements attributed to its
agents. Respondent does assert various defenses to the
discharge/dispatch allegations which have application to
the other alleged conduct. Thus, it appears appropriate
to address the discharge/dispatch issues initially.
a. The discharge/failure to dispatch/failure to register
allegations "6
(1) Findings as to motive
Relying on the credited testimony, supra, including the
admissions of Respondent's agents as to motive, I find
that Respondent engaged in a course of conduct de-
signed to replace traveler employees of the Employer
with union members. More specifically, I find that Re-
spondent seized upon the Employer's election of its shut-
down option" (1) to insist that any recommencement of
the job be undertaken by the Employer through a de
novo staffing through the Union's hiring hall rather than
by directly contacting the previous crew, and (2) to dis-
tort the registration process by denying travelers the
right to register. I specifically reject any contention by
Respondent that its actions were solely motivated by le-
gitimate reasons when it insisted on termination of the
employees and a new staffing of the job. Respondent's
consistently discriminatory handling of the dispatch
process augments and sustains this finding of animus.
I further find that Respondent instructed union mem-
bers to register on the out-of-work books immediately
L5 The dispatch records, including the August I dispatch request list of
Ryan, are clearly susceptible to the interpretation that the Union was
maintaining an open, active policy of discrimination against nonmembers
of the Union in the operation of the referral process.
"6 Certain allegations specific to employee Baldwin are discussed sepa-
rately, infra
7 I specifically find that there is insufficient evidence to prove that the
shutdown by the Employer was caused by any factors other than the
general economic dispute involving many locals and a significant number
of employers in the area. I have considered Davis' statements to employ-
ees that the Union refused an interim agreement with the Employer in
order to cause a shutdown which would allow the Union to insist on re-
dispatching the job. Given the wide and general occurrence of the strike
and the absence of other more probative evidence, I find Davis' admis-
sion standing alone to be insufficient to support a contrary finding.
after the shutdown, instructed travelers to withdraw
their traveler cards from the local and leave and area,
and refused requesting travelers the right to sign the out-
of-work books-all to advance the Union's wrongful
policy of replacing travelers with union members on the
Project. Respondent's agents' admissions that the true
purpose of the Union's actions was to restore union
members to jobs previously held by travelers rebuts any
contention that the instruction to travelers to withdraw
their travel cards was but a constitutionally condoned
method of preserving work for union members during
strikes or lockouts. So, too, the records of the identity
and union affiliation of the individuals dispatched in
August and September to the Project clearly establish
that Respondent's course of conduct did in fact result in
the wrongful failure to refer nonunion travelers consist-
ent with contractually provided dispatch priorities and
proceduresI' which do not allow discrimination based on
union affiliation.
(2) The theory of the General Counsel and
limitation of the complaint
Counsel for the General Counsel in her brief argues
that the Union:
. . . unlawfully interfered with the employment of
all employees of Pullman Power as of June 30, by
unilaterally insisting that they had been terminated
and that they must be dispatched through the hiring
hall.
The General Counsel's "termination" theory is quite
simple. Respondent caused the termination of the entire
unit in order to create an opportunity to dispatch only
union members. Under this direct 8(b)(2) theory, the
remedy would clearly be reinstatement of the entire June
crew irrespective of questions of dispatch entitlement or
union membership. The General Counsel's amended
complaint, however, does not allege either the wrongful
causing of the termination of employees by the Union or
wrongful discrimination in any way against union mem-
bers. It alleges discrimination against and seeks relief for
travelers only. Under the wider termination theory noted
above, both union and nonunion members were held to
have been terminated and were required to go through
the hiring hall, thus delaying the reemployment of all.
The complaint is therefore far more limited in its scope
and related than the termination theory argued by the
General Counsel on brief. Thus, even though I am in
agreement with the General Counsel's theory that, in
effect, the Union caused first the termination of and
thereafter a delay in the rehire of union members"9 and a
very substantial delay in the rehire of travelers-actions
improper under the Act-I will not find the Union in so
1" Geographical distinctions based on work, not union membership, are
a permissible basis for contractual employment priority hiring in the con-
struction industry under Sec. 8(f) of the Act.
'' On brief, counsel for the General Counsel notes that all the union
members in the unit in June had been restored to the job August and thus
were not "substantially injured" by the Union's conduct. Were I to have
found the complaint alleged the termination theory described supra, I
would not find such conduct insubstantial.
265
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
doing violated the Act20 because such allegation were
not included in the amended complaint. 21 Accordingly, I
shall not find a violation in the initiation of the termina-
tion nor remedy the employment hiatus caused as a
result thereof.
(3) The travelers
The amended complaint alleges that the Union wrong-
fully refused since June 22 to dispatch to the Employer,
despite its continuing requests, the Charging Parties and
"all other employees similarly situated who were em-
ployed . . . by the Employer at [the Project] as of June
30, 1980, based on travel cards from other local union af-
filiated with the [United Association]."
Respondent commenced dispatching union members
on August 4. Given the record evidence of the Union's
participation in the contract ratification process in June
and August, the absence of any evidence regarding when
the Union commenced dispatching referents to other em-
ployers after the settlement, and the limitations of the
complaint in not pleading the discharge termination
theory discussed supra, I find there is insufficient evi-
dence to find that Respondent wrongfully withheld the
dispatch of applicants to the Employer before August 4.
Therefore, this earlier portion of the allegation is there-
fore without provable merit and will be dismissed.
Respondent discourage and in some cases directly re-
fused travelers the opportunity to register on the out-of-
work books at the union hall until mid-September. When
allowed to sign, they were forced to sign Book two even
though many qualified for Book one. I find that as a con-
sequence of this conduct and as an intended result of the
Union's overall course of conduct as described supra,
travelers were either denied or substantially delayed dis-
patch to the Project and therefore denied opportunity to
become employees of the Employer. Inasmuch as I
found this conduct motivated by a desire of the Union to
discriminate against applicants based on union member-
ship and, on a secondary basis, on the membership in
locals affiliated with the United Association according to
their geographical location, I find that the Union has
thereby violated Section 8(b)(l)(A) and (2) of the Act.
Two aspects of this determination merit further discus-
sion. First, it is clear that traveler Tilly had been em-
ployed in June as the Employer's general foreman and
that the Union was specifically requested in August to
dispatch him to the job so he could again be employed
as the Employer general foremen, a supervisory position.
Where the dispatchee is to be a supervisor, a union does
not violate Section 8(b)(2) of the Act by discriminating
against him because of his union affiliation. However,
where the supervisor applicant's treatment is but one in-
separable element in a pattern of dispatch refusals for im-
proper reasons, as here, the union including the supervi-
o Such evidence has been considered in determining the appropriate
remedy for the violations found.
'' While I am aware the complaint may be amended even after the De-
cision herein, there are fundamental problems inherent in post hoc amend-
ments to complaints in hiring hall cases which greatly expand the group
of potential discriminatees. See, for example, the difficulties presented the
Board in Wismer and Becker. Contracting Engineers, 251 NLRB 687
(1980), enforcement denied in other respects 654 F.2d 731 (9th Cir. 1981).
sor in its net violates Section 8(b)(1)(A) of the Act.
United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry Local Union No. 137
(Hames Construction and Equipment Co.), 207 NLRB 359
(1973), and cases cited therein at 359. I so find here.
Second, counsel for Respondent attacks the sufficiency
of the complaint to place in issue the refusal to dispatch
the alleged discriminatees, other than the Charging Par-
ties, who are referred to in the complaint only as "simi-
larly situated" individuals.22 Respondent argues: (1) that
the General Counsel has failed to comply with class cer-
tification requirements of Federal Rules of Civil Proce-
dure 23; (2) that the "similarly situated" individuals iden-
tified by the General Counsel have insufficient demon-
strable common interests to constitute a proper "class"
and rather have demonstrably different interest; and (3)
the decision of the United States Court of Appeals for
the Ninth Circuit in N.L.R.B. v. Fort Vancouver Plywood
Company, 604 F.2d 596 (9th Cir. 1979), precludes a class
remedy in the instant case.
Respondent opposed what was characterized as the
complaint's "class" or "similarly situated" allegation in
the opening remarks of the hearing. I ruled then that
Board procedures do not require class certification as
such. Having considered the matter in light of the briefs
of the parties and the authorities cited, I reaffirm my
ruling. Respondent has not cited nor have I found Board
decisions or other rules or regulations requiring certifica-
tion of a class of discriminatees. Rather, the Board vol-
umes are replete with decisions, usually involving cases
of union membership preference in hiring hall situations,
which parallel the instant complaint allegation of dis-
crimination against "similarly situated" applicants. See,
for example, International Association of Bridge, Structural
& Ornamental Ironworkers, Local 373 (Building Contrac-
tors Association of New Jersey), 235 NLRB 232, 233, fn. 7
(1978), where the Board found a "class of 'similarly situ-
ated' discriminatees" had been denied employment op-
portunities in violation of Section 8(b)(1)(A) and (2) of
the Act.2 3 Indeed, in those cases the "class" was open
ended where here the "class" is fixed, and the members
listed. I find that the court's decision in Fort Vancouver,
supra, applies to the issue of reinstatement as a proper
remedy. In the instant case, at least by the time of the
Employer's offers of reinstatement in April, no such issue
remained. I find its teachings thus irrevelant to the issue
here. More particularly, I do not find that it prevents a
remedy to be directed to the individuals listed in Appen-
dix A attached hereto.
(4) Summary
The continuous refusal of union agents to allow travel-
ers to register on the out-of-work books in the union
hall, as described supra, was without justification or
22 The counsel for the General Counsel made it clear at the hearing
that the "similarly situated" individuals referred to in the amended com-
plaint were the 23 named individuals listed with the three Charging Par-
ties in attached Appendix A. Thus, the class is comprised of 23 known,
named individuals.
:a Respondent's argument regarding the different situations pertaining
to certain of the identified travelers is further addressed in the portion of
this decision entitled "The Remedy."
266
PLUMBERS AND PIPEFITTERS LOCAL UNION NO. 403
excuse.24 Such a refusal of necessity restricts the appli-
cant's employment prospects by denying the applicant
otherwise appropriate employment opportunity and
therefore had the effect of causing the Employer to fail
to recall, reinstate, rehire, or otherwise employ the trav-
elers named in Appendix A because of their lack of
membership in the Union, thereby violating Section
8(a)(3) and (1) of the Act. Respondent has thereby vio-
lated Section 8(b)(a)(A) and (2) of the Act.
b. Special allegations as to Baldwin
As found, supra, Baldwin, as with other travelers, was
denied an opportunity to register on the out-of-work lists
at the union hall and was consequently refused dis-
patches to the Employer at the Project he would have
received but for his lack of membership in the Union.
The General Counsel additionally alleges, however, that
Baldwin was denied an opportunity to register and re-
ceive a timely dispatch because his wife sent a letter to
the United Association's president protesting the then oc-
curring failure of Respondent to allow Baldwin to regis-
ter with the Union and obtain employment. For the rea-
sons set forth, infra, I find the evidence insufficient to
sustain the General Counsel's burden with respect to this
allegation. Accordingly, I shall dismiss this aspect of the
complaint, paragraph 12(i). This does not affect my earli-
er determination regarding the 26 travelers of which
Baldwin was one and therefore does not reduce the
remedy concerning him.
The General Counsel seeks to sustain its burden of
proving Respondent's knowledge of Baldwin's wife's
letter by advancing the testimony of Baldwin that in a
conversation with a secretary in his home local, Local
114, she asked him, "Aren't you the one who wrote the
letter?" The General Counsel argues and I agree that this
evidence, which I credit, proves that an employee of
Local 114 who was involved at the time in coordinating
with Respondent in the dispatch of Local 114's travelers
to the Project had knowledge of "a letter." Counsel for
the General Counsel errs however when she argued that
this evidence:
. . . creates a reasonable inference that Local 403
also had knowledge of Bonnie Baldwin's complaint,
and that it was a crucial factor in the singular fail-
ure to refer Baldwin back to Pullman Power....
Conceding the suspicious circumstances regarding Bal-
dwin's continuing failure to receive a dispatch at that
time, the General Counsel's optimistically offered infer-
ence is rather an innuendo arising from the ambiguous
interrogation of Baldwin by a non-agent of Respondent.
I will not make the substantial evidentiary leap neccesary
to attributed scienter to Respondent here. This is espe-
cially so where the General Counsel at no time suggest-
ed more direct evidence was unavailable-why not call
the secretary at Local 114 whose remark is to be relied
24 As Respondent conceded at hearing and on brief, the various provi-
sions of the United Association's governing regulations apply to the
mechanism of traveler card submission and withdrawal only and do not
affect directly the rights of a referral applicant to register for employ-
ment referral in accordance with contractual procedures.
on? Further, although not decisive here, it seems unlikely
that Respondent's agents who, as found supra, directly
confessed to Baldwin their illegal motives and intentions
on various other occasions would omit to do so regard-
ing his wife's letter if it were known to them. Would Re-
spondent's agents who openly announced to numerous
individuals that nonmembers would be kept off the job,
and would not be allowed to register for dispatch, and
who threatened Baldwin with various adverse conse-
quences unless he dropped his NLRB charge against the
Union, have been reluctant to refer to Baldwin's wife
letter were it an additional element in their otherwise
freely admitted animus against him? Counsel for the
General Counsel has not met her burden here.
c. The travel card allegation
The General Counsel proved that, commencing with
the dispatch of travelers in September, agents of Re-
spondent required travelers to sign their traveler cards
twice as a precondition to dispatch. The record further
reflects, and I find, that this procedure was effected for
the first time by the Union with the announced intention
that the double signing-the second signature normally
evinces withdrawal from the local union's referral
system-would effectuate the Union's removal of travel-
ers from the job and/or elimination from the referral
process when union members were available for work.25
The second signing therefore was a required license
given to the Union to withdraw the traveler from the
Union's labor market at will. This is but an additional
part of the Union's design to give illegal preference to its
members.
Respondent argues correctly that the Union or the
United Association's internal arrangements for interlocal
union work registration is a purely internal union matter
which has no legal effect on an employee's legal rights
to employment or dispatch, absent union-security obliga-
tion deficiencies-a factor entirely absent from this case.
Given the pattern of discrimination against travelers in
the Union's dispatch system and the simultaneous com-
mencement of the requirement that travelers sign the
card before obtaining the job dispatch, I agree with the
General Counsel that such conduct also violates Section
8(b)(1)(A) of the Act. The obligation to sign the card
twice issues the Union a blank check to be drawn on the
applicant's employment entitlements in the Union's juris-
dictional area. The employee's awareness of this damo-
clean sword in the Union's hand is intimately related to
that employee's view of the value of obtaining union
membership in order to preserve or enhance employment
prospects.
d. Statements of Respondent's agents alleged as
violative of Section 8(b)(1)(A)
Respondent did not challenge through testimony nor
address on brief, save through its general attack on the
credibility of the General Counsel's witnesses discussed,
as The Union had also directly told travelers they were not to accept
overtime, etc., but these conversations were not alleged as violations of
the Act and I need not consider the legal validity of such requests.
267
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supra, the General Counsel's case in support of para-
graph 14 of the amended consolidated complaint which
sets forth a variety of alleged threats. Based on the cred-
ited testimony described supra I find:
(1) C. Ray Skidgel
Skidgel, by telephone, told referral applicants he
would refer applicants to the Employer at the Project
based on membership in the United Association with pri-
ority accorded first to union members, then to members
of local unions in District 16, then to members of other
local unions in California, and finally then to other local
members. During the same period, Skidgel told referral
applicants that the Union would not allow travel card
holders to register on the out-of-work lists of the Union
until union members had first been referred for employ-
ment. Skidgel also told an employee he would not be
able to work as a union member unless he withdrew his
NLRB charge against the Union.
(2) Don Bachus and Ray Tillman
Don Bachus and Ray Tillman threatened an employee
of the Employer with loss of employment because the
employee had filed an unfair labor practice charge
against Respondent.
(3) Gene Davis
Gene Davis told the Employer's employees that the
Union would not refer travelers to the Project and that
the Union had engaged in a strike in order to replace
travel card holder employees of the Employer with
union members. Davis also threatened an employee by
telling him he would never work again on a union job if
he continued to pursue his unfair labor practice charge
filed against the Union.
(4) Bobby T. Swearengen
Swearengen, in person and by telephone, told travel
card holding referral applicants that Respondent would
not allow them to register for referral until members of
the Union were referred for reemployment and, on other
occasions, told travel card holders who were members of
locals not within District 16 that they would not be re-
ferred out until first union members and then members of
locals within the District were referred out.
(5) Conclusion
The acts and conduct described supra at (1) through
(4) engaged in by individuals found to be agents of Re-
spondent, supra, constitute traditional violations of Sec-
tion 8(b)(1)(A) of the Act and I so find here.
e. Summary
(1) Violations not found
I have found that Respondent embarked on a deliber-
ate course of conduct which was designed to and did
cause the wrongful transfer of employment from travel-
ers employed by the Employer at the Project to union
members. More particularly I have made the following
findings:
There is insufficient evidence to find that Respondent
caused the shutdown of the Employer for improper rea-
sons.
There is substantial evidence to support a finding that
Respondent caused the cessation of the employment rela-
tionship of the Employers unit employes-both union
member and traveler-who were shut out in July in
order to replace the travelers with union members. How-
ever, because the amended complaint does not allege the
severing of the employment relationship by Respondent,
or any other wrongful conduct directed against the unit
as a whole including union members rather than travel-
ers alone, I have determined-despite the arguments of
counsel for the General Counsel on brief-that the
amended complaint will not support any finding of a vio-
lation with respect to any of these contentions.
I have found there is insufficient evidence to find that
Respondent knew of Baldwin's letter to the United Asso-
ciation's president. Therefore, I have found there is insuf-
ficient evidence to prove that Respondent discriminated
against Baldwin based on knowledge thereof.
(2) The 8(b)(l)(A) and (2) violations found
I have found that Respondent failed and refused to op-
erate its hiring hall in accordance with established non-
discriminatory rules but rather manipulated the system to
favor union members and to discriminate against travel-
ers in violation of Section 8(b)(1)(A) and (2) of the Act
by the following acts and conduct: failing and refusing to
dispatch travelers who were requested by name by the
Employer in accordance with normal hiring hall proce-
dure; failing and refusing to allow travelers to register on
the hiring hall out-of-work books; and dispatching union
members to the Employer when travelers would have
been dispatched under normal hiring hall procedure save
for the conduct described above.
(3) The 8(b)(1)(A) violations found
I have found that Respondent required travelers to
sign their travel cards in a manner signifying that they
were no longer seeking employment in the craft within
the geographical area covered by the Union; thus, Re-
spondent is encouraging travelers to join the Union to
insure continued oportunities to pursue employment
within the area without fear of discrimination.
I found that Respondent violated Section 8(b)(X)(A) of
the Act by threatening and coercing employees and em-
ployment applicants by telling them the following: that
the Union had caused the Employer's shutdown and sub-
sequently insisted on dispatching the job anew in order
to deprive travelers of their jobs; that travelers cound
not register on the Union's out-of-work books or, in
other cases, that traveler registration would be delayed
to allow union members and members of District 16
local unions to obtain dispatch opportunity; that travelers
would not be dispatched to the Employer at the Project
until union members had been dispatched and other
members of District 16 local obtained dispatch priority
over other local union members; and that the employee
268
PLUMBERS AND PIPEFITIERS LOCAL UNION NO. 403
who filed charges against the Union with the NLRB
would not be able to work and or would lose his job or,
impliedly, would be harmed if he did not drop his
charges.
Upon the foregoing findings of fact and upon the
entire record herein, I make the following:
CONCLUSIONS OF LAW
1. The Employer is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Union, by telling travelers that their registra-
tion and/or dispatch would be delayed or denied in
order to provide dispatch priority to union members and
thereafter to those members of local unions within Dis-
trict 16 followed by other California local union mem-
bers and lastly other local union members; by telling the
Employer's employees that the Union had caused the
Employer's job shutdown and subsequently insisted on
redispatching the unit positions through the hiring hall in
order to eliminate travelers positions in the unit and re-
place those individuals with union members; by requiring
travelers as a condition precedent to obtaining a dis-
patch, to sign their travel cards in a manner indicating
they were no longer seeking work in the area; and by
threatening travelers with harm, loss of employment, or
denial of future employment unless they dropped charges
filed with the NLRB against the Union, in each case,
violated Section 8(b)(1IXA) of the Act.
4. The Union by failing and refusing to allow registra-
tion and by delaying in allowing the registration of trav-
elers on the referral system out-of-work books, and by
the failure and refusal to dispatch travelers who were re-
quested by name by the Employer in accordance with
normal hiring hall procedure, and by failing and refusing
to dispatch to the Employr travelers who would have re-
ceived such a dispatch but for their lack of membership
in the Union or certain more favored locals or because
of the illegal conduct described immediately above, vio-
lated Section 8(b)(1)(A) and (2) of the Act.
5. The above-described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
6. Except as described above and in greater detail in
the body of this Decision, Respondent has not otherwise
violated the Act.
THE REMEDY
Having found that the Union engaged in certain unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Union discriminatorily delayed
and/or denied referral to the travelers named on Appen-
dix A, I shall recommend that the Union notify the Em-
ployer that it has no objection to the employment of or
retention of the travelers. Further, I shall recommend the
Union notify each named traveler that the Union's hiring
hall facilities will be available to him on an equal and
nondiscriminatory basis with union members, travelers,
and other job applicants and registrants.
I shall also recommend that the Union make each trav-
eler whole for any loss of earnings2 6 he may have suf-
fered as a result of having his dispatch to the Employer
delayed or denied by the Union either through name re-
quest or the normal application of hiring hall procedures
had they been nondiscriminatorily applied in July and
thereafter-whichever dispatch would have occurred
first. Other nonwage benefits and entitlements, including
accrued hours to be used for group eligibility under the
dispatch classification, will also be restored to each trav-
eler in accordance with the above. Backpay shall be
computed in accordance with Board policy as described
in F. W Woolworth Company, 90 NLRB 289 (1950), and
Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and
shall accrue interest in accordance with Board policy as
described in Florida Steel Corporation, 231 NLRB 651
(1977), and Olympic Medical Corporation, 250 NLRB 146
(1980).2
In light of the wide dissemination of knowledge of the
Union's activities among union members and travelers
employed at the jobsite, noted supra, in view of the fact
that travelers from a number of other locals of the
United Association were discriminated against, and, final-
ly, because the record contains evidence that officials of
sister locals of the Union were aware of Respondent's
pattern of discrimination against travelers and cautioned
their own members against exercising their Section 7
rights within the jurisdiction of the Union so as to avoid
provoking further discrimination by the Union against
travelers, it is especially important that the instant
remedy of the Union's wrongdoing be communicated, in-
sofar as possible, to those who may have been or may be
adversely influenced by its occurence. Accordingly, I
shall require that the normal notice posting required of
Respondent be expanded as follows. The Union will be
required, consistent with the Board's Decision in Interna-
tional Association of Bridge, Structural & Ornamental Iron-
workers, Local 480, AFL-CIO (Building Contractors of
New Jersey), 235 NLRB 1511 (1978), to cause the remedi-
al notice, Appendix B, to be printed in a newspaper or so
many newspapers as are necessary to achieve general cir-
culation within its jurisdictional area. I shall also require
the notice to be placed in any newsletter and/or newspa-
26 The measure of earnings shall be the wage or salary of the position
to which the traveler would have been dispatched or employed, includ-
ing supervisory positions. Local Union No. 725 of the United Association of
Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the
United States and Canada. AFL-CIO (Powers Regulator Company), 225
NLRB 138 (1976).
:7 While there was some evidence regarding the possibility of unavaila-
bility of some of the travelers for employment during certain times
during the backpay period, I find the question was not sufficiently litigat-
ed to permit conclusive determinations as to particular travelers. I shall
therefore defer any resolution of such issues to the compliance stage of
this proceeding. Local Union 725. supra, 225 NLRB 146 at fn. 24. At such
time Respondent would have full opportunity to inquire into the question
as to when or whether particular travelers would have returned to the
Employer's employ had a nondiscriminating referral process been uti-
lized. Cf. Trident Seafoods Corporation, 244 NLRB 566 (1979), enfd. 642
F.2d 1148 (9th Cir. 1981). 1 note further, however, that multiple hiring
hall registration of travelers shall not, under the circumstances of this
case, toll backpay. See International Association of Bridge, Structural A Or-
namental Ironworkers, Local 45 (Building Contractors Association of New
Jersey), 235 NLRB 211, 212, fn. 5 (1978).
269
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
per sent to its members by the Union. The Union will be
further ordered to mail a copy of the notice to each and
every traveler as well as to each and every local union
to which the travelers belonged at the time of the
Union's discrimination against them and to each and
every local union within District 16. The Union shall
also be required to submit appropriate signed copies of
the notice to the Regional Director for submission to the
Employer for posting, should it be willing. Finally, the
Union will be ordered to preserve and, upon request,
provide opportunity to the Director or his agents, for in-
spection and copying, all records necessary to determine
the amount of backpay due under the terms of this Order
and to insure that its terms have been fully complied
with.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER 2 9
The Respondent, Plumbers and Pipefitters Local
Union No. 403, affiliated with the United Association of
Journeymen and Apprentices of the Plumbing and Pipe-
fitting Industry, AFL-CIO, its officers, agents, and rep-
resentatives, shall:
1. Cease and desist from:
(a) Coercing and restraining employees by telling trav-
elers that their union hiring hall registration and/or dis-
patch would be delayed or denied in order to provide
registration and dispatch priority to union members first,
followed by District local union members, other Califor-
nia local union members, and finally other local union
members.
(b) Coercing and restraining employees by telling them
that the Union had caused the Employer's shutdown and
subsequently insisting on redispatching the Project's unit
positions in order to eliminate the travelers employed on
the Project and to replace those individuals with union
members.
(c) Coercing and restraining employees by telling them
that, as a condition precedent to dispatch to the Employ-
er, they must sign their travel cards in a manner indicat-
ing they were no longer seeking work in the area, thus
allowing the Union to terminate their future employment
rights at will.
(d) Threatening employees with harm, loss of employ-
ment, or denial of future employment unless they
dropped charges filed with the National Labor Relations
Board against the Union.
(e) Failing and refusing to allow travelers to sign the
union hall referral system out-of-work book because the
travelers were not members of the Union.
(f) Failing and refusing to dispatch travelers to the
Employer for employment in the unit at the Project
when said travelers were requested to by the Employer
" In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions. and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
by name who would have therefore been dispatched in
accordance with contractually established referral system
policy and practice but for the Union's refusal to allow
travelers to register because said travelers were not
members of the Union, thereby causing the Employer to
discriminate against them in violation of Section 8(a)(3)
and (I) of the Act.
(g) Failing and refusing to dispatch travelers to the
Employer for employment in the unit at the Project who
would have been dispatched in accordance with contrac-
tually established referral system policy and practice but
for the Union's refusal to allow traveler's registration
either in a timely manner or in the current book priority
because said travelers were not members of the Union,
thereby causing the Employer to discriminate against
them in violation of Section 8(a)(3) and (1) of the Act.
(h) Causing or attempting to cause the Employer, or
any other employer, to discriminate against the employ-
ees listed on Appendix A of this Decision in violation of
Section 8(a)(3) and (1) of the Act because of the employ-
ee's lack of membership in the Union.
(i) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Keep and retain for the period the Employer em-
ploys the Union's hiring hall to procure unit employees
at the Project permanent written records of its hiring
and referral operations which will be adequate to dis-
close fully the basis on which teach referral is made, and
upon the request of the Regional Director for Region 31,
or his agents, make available for inspection, at all reason-
able times, any records relating in any way to the hiring
and referral system.
(b) Submit four quarterly reports to the Regional Di-
rector for Region 31, due 10 days after the close of each
calendar quarter subsequent to the issuance of this Deci-
sion and Order, concerning the employment of the non-
member applicants listed in Appendix A of this Decision.
Such reports shall include the date and number of job
applications made to Respondent, the date and number
of actual job referrals by Respondent, and the length of
such employment during such quarter period.
(c) Place the referral register, for the above-described
period, on a table or ledge in the hiring hall for easy
access and inspection by the applicants, as a matter of
right, upon the completion of each day's entries in such
registers.
(d) Make whole the individuals listed in Appendix A
for any loss of earnings and other benefits they may have
suffered by reason of the discrimination against them
with appropriate interest in the manner set forth in the
section of this Decision entitled "The Remedy."
(e) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
records, reports, work lists, and other documents neces-
sary to analyze the amount of backpay due under the
terms of this Decision and otherwise to insure the terms
of this Order have been fully complied with.
270
PLUMBERS AND PIPEFITTERS LOCAL UNION NO. 403
(f) Post at all places where notices to employees, appli-
cants for referral, and members are posted copies of the
attached notice marked "Appendix B."30 Copies of said
notice, on forms provided by the Regional Director for
Region 31, aftel being duly signed by Respondent's rep-
resentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to members are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(g) Cause, at its expense, the attached notice marked
"Appendix B" to be printed in a newspaper or newspa-
per sufficient to achieve general circulation through the
Union's jurisdiction and in any newsletter or newspaper
prepared by the Union and distributed by its members.
(h) Send to each of the individuals listed on Appendix
A and to each of the locals unions of the United Associ-
ation of which each individual was a member in June
SO In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1980, and each local union in District 16, a signed copy
of the attached notice marked "Appendix B."
(i) Return to the Regional Director appropriate signed
copies of the attached notice marked "Appendix B" for
retransmission to the Employer for posting, should it be
willing, at appropriate locations at the Project.
(j) Notify the Regional Director for Region 31, in
writing within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
APPENDIX
I. Steve Selby
2. Arthus Mathis
3. Charles Gamble
4. Harold Holder
5. Don Tilley
6. Leo Bernhardt
7. Andrew Peak
8. Angelo Guidice
9. Kenneth Baldwin
10. John Hughes
11. Doug King
12. Ken Harris
13. Celestino Martin
14. Rick Dumouchelle
15. Virgil Walker
16. Al Furtado
17. Sherman Conner
18. George Carl
19. Richard Sims
20. Ben Koens
21. Sadao Yabuno
22. Sage Dibble
23. John Nagy
24. Terry Denning
25. John Martin
26. John Maloney
271
