Asbestos Workers, Local 53

National Labor Relations Board - Board Decisions

Sep 18, 1970

185 N.L.R.B. 642 (N.L.R.B. 1970)

642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Association of Heat and Frost Insula-
tors and Asbestos Workers Local No. 53 (McCarty
and Armstrong) and Paul A. Vogler, Jr. Case 15-
CB-775
September 18, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING,
BROWN, AND JENKINS
On December 18, 1968, Trial Examiner Marion
C. Ladwig issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. He further found that the Respondent had
not engaged in certain other unfair labor practices
alleged in the complaint and recommended that the
complaint be dismissed insofar as it alleged any viola-
tions of the Act not specifically found. Thereafter,
the General Counsel filed exceptions to the Trial
Examiner's Decision and a supporting brief; the
Respondent filed a "Motion to Recuse and Disqualify
the Trial Examiner," exceptions to the Trial Examin-
er's Decision, and a supporting brief; and the Charging
Party filed a brief in opposition to the Respondent's
exceptions and a motion to reopen the case and
admit new evidence.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed.' The rulings are
hereby affirmed.' The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner, as modified below.
For the reasons stated below, we find merit in
the following contentions by the General Counsel
in his exceptions. Fullen should be found to be a
' We deny as lacking in merit Respondent 's Motion to Disqualify
the Trial Examiner on the ground that he is prejudiced against any
individual or organization which allegedly discriminated on a racial or
color basis and that he therefore erred in his credibility resolutions
and weighing the evidence It is established Board policy not to overrule
a Trial Examiner 's credibility findings unless , as is not the case here,
a clear preponderance of all relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd
188 F 2d 362 (C A. 3)
' We deny the motion of the Charging Party to admit additional
evidence Even assuming as true the factual matters raised in his motion,
we find that they would not affect the determinations herein made
discriminatee and should be ordered to be made whole;
from January 5 until August 1966, the Union refused
to refer Vogler because of his nonunion status and
the Trial Examiner should have passed on such allega-
tion; as part of the remedy the Trial Examiner should
have required Respondent to operate a nondiscrimina-
tory hiring hall if it operates any; such remedy should
also include provisions requiring Respondent to make
the discriminatee permitmen whole for being prevent-
ed by discrimination from having sufficient hours
to qualify for the welfare fund; the Trial Examiner
should have ordered that records be kept of the
hiring hall and pension funds with such records being
available to the Board for inspection; and the Order
and notice should be amended to prohibit the
Respondent from causing the Employer to hire union
members because a nonmember is on the job if such
hire results in the displacement of the nonmember.
The Trial Examiner found that the Union illegally
induced McCarty to transfer permit men Vogler, Kerr,
Horace D. Brown, and Juan B. Galaviz from an
overtime job because of their lack of union membership
and in order to give preference to union members
in the assignment of overtime, but made no findings
as to Brooks Fullen, Jr., on the ground that the
General Counsel failed to name him as one of the
discriminatees. Section 15 of the complaint alleges
that from on or about January 2, 1966, to date,
and at all times material herein, Respondent attempted
to cause McCarty to deny overtime employment to
employees Juan Galaviz, Vogler, and others because
they were not members of Respondent and/or to
provide additional overtime opportunities for members
of Respondent. Accordingly, and as the record shows
that Fullen was treated in exactly the same manner
as Vogler, Kerr, Brown, and Galaviz, who were
included in the Trial Examiner's findings, we hereby
include Fullen in this finding.
On the ground that the remedy for such violation
would be cumulative, the Trial Examiner found it
unnecessary to pass on the allegation that from Janu-
ary 5, 1966, until about August 1966, the Union
refused to refer Vogler for employment because of
his nonunion status. We disagree with the Trial Exam-
iner and make the following findings:
The record shows that although Vogler remained
available for referral after he was laid off from the
International Trade Mart job and, in fact, unsuccess-
fully solicited referrals from various employers, Busi-
ness Agent O'Brien admitted that he refused to refer
Vogler at least until sometime in March 1966. This
occurred even though it was stipulated that other
referrals were made during this period from January
1, 1966, through March 3, the date Vogler went
to work, and also from July 13, 1966, through August
185 NLRB No. 89
ASBESTOS WORKERS, LOCAL 53 643
1966. It is clear that Vogler had notified O'Brien
of his availability. In March 1966, O'Brien discovered
that Vogler was working at Eagle Asbestos Company,
where he had been employed on his own and without
O'Brien's knowledge. Vogler worked on the Eagle
job until June 9, when he and others were laid off
in anticipation of a possible strike. About August
17 or 18, Eagle offered Vogler a job again, but about
August 22 told him that under a new policy he
would have to obtain a permit from the Union before
he could go to work. Vogler then reported to O'Brien
that he had been offered a job by Eagle but that
he had to obtain a permit from O'Brien. O'Brien
refused to send Vogler to the Eagle job but instead
referred him to Union Carbide, to which Vogler
reported. As it is clear that a card member of the
Union could obtain his own job without O'Brien's
approval, it was discriminatory for O'Brien to refuse
to send nonmember Vogler to the job Vogler had
obtained on his own. Moreover, the referral to an
employer other than Eagle is clearly a discriminatory
referral of Vogler. In these circumstances, we find
that Respondent, by refusing to refer Vogler for jobs
from January 5 until sometime in March 1966 and
by refusing to allow Vogler to obtain his own job
in August 1966 while a card member of the Union
was permitted to obtain his own job, violated Section
8(b)(2) and (1)(A) of the Act.
In accordance with our above findings of violations
of the Act not found by the Trial Examiner, we
hereby amend his Conclusions of Law as follows:
AMENDED CONCLUSIONS OF LAW
1. By causing McCarty, Armstrong , and other
employer-members of the Association, through a dis-
criminatory oral understanding , arrangement, and
practice , to give priority in employment on the basis
of union membership, in violation of Section 8(a)(3)
of the Act, the Union has engaged in unfair labor
practices affecting commerce within the meaning of
Section 8(b)(2) and ( 1)(A) and Section 2(6) and (7)
of the Act.
2. By causing Armstrong discriminatorily to deny
overtime to Bill Wonzer and Olan Wonzer on and
after November 6, and to lay them off on November
12, because of their nonunion status , the Union violat-
ed Section 8(b)(2) and (1)(A) of the Act.
3. By causing McCarty discriminatorily to transfer
Kerr and Brown on December 29, and Vogler , Galav-
iz, and Fullen on December 31, to deny them overtime
thereafter , and to lay off Vogler and Galaviz on
January 5, because of their nonunion status, the Union
violated Section 8(b)(2) and (1)(A) of the Act.
4. By refusing to refer Vogler for employment
from January 5, 1966, until about August 1966,
because of his nonunion status, the Union violated
Section 8(b)(2) and (1)(A) of the Act.
THE REMEDY
Although the Trial Examiner found that the
Respondent's hiring arrangement was illegal because
of discrimination based on union membership, never-
theless he made no recommendation as to remedy
because of the outstanding injunction by the U. S.
District Court affecting the hiring hall. Contrary
to the Trial Examiner, we shall provide our usual
remedy for operating a hiring hall which is illegal
on the ground of union preference. We therefore
shall order that the Respondent cease and desist
from operating the hiring arrangement herein found
to be unlawful and, if it continues to operate a hiring
hall, to operate one that is not discriminatory.
As we have found that Brooks Fullen, Jr., along
with Vogler, Galaviz, Kerr, and Brown, was denied
an overtime job because of his nonunion status, we
find that Fullen should be made whole for his loss
of wages in the same manner provided for by the
Trial Examiner in his remedy with respect to Vogler,
Galaviz, Kerr, and Brown.
In his remedy, the Trial Examiner failed to include
any provision requiring Respondent to make whole
the discriminatee permitmen, who, because of the
discrimination against them, were prevented from
acquiring the requisite number of hours to qualify
for the joint union and employer welfare fund. The
record shows that the Employer, during the critical
period herein, made contributions to the welfare fund
in an amount of 10 or 15 cents per hour, and an
employee qualifies if he works 480 hours in a 6-
month period. It is clear in the instant situation
that Vogler, Brown, Galaviz, Kerr, and Fullen would
have worked on their job until it ended sometime
in March 1966 and would have qualified for the
fund but for the discriminatory transfers. In these
circumstances, we shall order that these employees
receive a credit by the Respondent for the welfare
fund for the hours that they would have worked
if they had not been discriminatorily transferred. We
further shall order, if Respondent is required under
the welfare plan to make these contributions, that
Respondent make the contributions necessary to make,
these employees whole for the discrimination against
them. We shall also order that the Respondent keep
full records of its nondiscriminatory hiring hall and
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its welfare and pension funds, and to make such
records available to the Board for periodic inspection.
Finally, we find merit in the exception that the Trial
Examiner's Order and notice should be amended so
that Respondent is prohibited from causing any
employer to hire a union member because a nonmem-
ber is on the job if such hire results in the displacement
of such nonmember.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Inter-
national Association of Heat and Frost Insulators
and Asbestos Workers Local No. 53, its officers,
agents, and representatives shall:
1. Cease and desist from:
(a) Causing or attempting to cause McCarty, Inc.,
and Armstrong Contracting and Supply Corporation,
members of the Master Insulators Association, or
any other employer, to discriminate against employees
or prospective employees by refusing to hire them
on the unlawful basis of union membership, or main-
taining, performing, or enforcing, by agreement or
otherwise, any like or related arrangement in a manner
whereby referrals to available jobs are based on the
unlawful basis of union membership.
(b) Causing or attempting to cause McCarty, Inc.,
and Armstrong Contracting and Supply Corporation,
members of the Master Insulators Association, or
any other employer, to deny any employee overtime,
to lay off or transfer him, or to discriminate against
him in any way because of his nonunion status.
(c) Causing any employer to hire a union member
because a nonmember is on a job if such hire results
in the displacement of such nonmember.
(d) Threatening any employer with a strike, or
with the withdrawal of skilled labor, for refusing
to deny overtime, to lay off, or to otherwise discrimi-
nate against a nonunion employee because of his
nonunion status.
(e) In any like or related manner restraining or
coercing nonmembers in the exercise of their rights
as employees under Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) If Respondent continues to operate a hiring
arrangement or hall, to operate one that does not
discriminate on the basis of union membership.
(b) Make whole Paul A. Vogler, Jr., Juan B. Galav-
iz, Leon Kerr, Horace D. Brown, Bill Wonzer, and
Olan Wonzer, as provided in the section of the Trial
Examiner's Decision entitled "The Remedy," and
make whole Brooks Fullen, Jr., as provided herein
under "The Remedy."
(c) Credit Paul A. Vogler, Jr., Juan B. Galaviz,
Leon Kerr, Horace D. Brown, Bill Wonzer, Olan
Wonzer, and Brooks Fullen, Jr., for application of
the welfare fund, with the number of hours they
would have worked if they had not been discriminato-
rily laid off and/or transferred; and credit them with
any contribution to the fund which Respondent may
be required to make and which these employees would
have received but for the discrimination against them.
(d) Keep full records of its nondiscriminatory hiring
hall and its welfare and pension funds and make
such records available to the Board for periodic inspec-
tion.
(e) Post in the Respondent's business offices and
meeting halls copies of the attached notice marked
"Appendix."' Copies of said notice, on forms provided
by the Regional Director for Region 15, after being
duly signed by an authorized representative of the
Respondent, shall be posted immediately upon receipt
thereof and be maintained for 60 consecutive days
thereafter. Copies shall be posted in conspicuous
places, within clear view of all persons-seeking referrals
by the Respondent, and all persons entering the
Respondent's hiring halls. Reasonable steps shall be
taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other
material. Upon request of the Regional Director,
Respondent shall supply him with a sufficient number
of signed copies for posting by McCarty, Inc., and
Armstrong Contracting and Supply Corporation, and
members of the Master Insulators Association of New
Orleans and Baton Rouge, Louisiana, Inc., if desired
by them.
(f) Notify the Regional Director of Region 15,
in writing, within 10 days from the date of this
Order, what steps the Respondent has taken to comply
herewith.
MEMBER JENKINS, concurring in part and dissenting
in part: I concur in the legal conclusions reached
by my colleagues that the Union's conduct, as
described by the Board majority, violated Section
8(b)(2) and (1)(A) of the Act for the reasons therein
stated. In short, the Board finds, and I agree, that
the Charging Parties were discriminated against
because they were not union members.
I dissent from the Board's unwillingness to find
the conduct violative of these same sections of the
' In the event this Order is enforced by a judgment of the United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National 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."
ASBESTOS WORKERS, LOCAL 53
Act for the additional reason that the discrimination
was based on race and national origin . The central
critical fact underlying this litigation is the unlawful
attempt of the Union to exclude from jobs under
its control all black and Mexican-American employees.
The Trial Examiner did not pass on whether the
hiring arrangement was discriminatory on the addi-
tional ground of race and national origin because
he concluded, as a matter of comity between the
branches of the Federal Government, it was not proper
to rule on these additional matters which were similar
to the racial issues before the U. S. District Court.
At the time of the Trial Examiner's Decision, the
U. S. District Court for the Eastern District of Louisia-
na, New Orleans Division, in Civil Actions Nos.
66-749 and 66-833, had issued a temporary injunction
enjoining racial discrimination in membership require-
ments and referrals by Respondent.4 That injunction
was in effect at the time of the trial of the instant
case.
It is my view that when violations of the National
Labor Relations Act are alleged, the Board has the
primary responsibility to rule on them and I would
resolve any conflict with the court order at the compli-
ance level.
The instant case is within the Board's jurisdiction.
The Board has already held, with court approval,
that title 7 of the Civil Rights Act of 1964 in no
way limits the Board's powers and duties under the
National Labor Relations Act.' Further, it is well
established that it is within the jurisdiction of the
Board, under the National Labor Relations Act, to
rule on alleged violations arising out of hiring practices
or arrangements that discriminate on the basis of
race or national origin.6 Accordingly, I would rule
on whether the Respondent's hiring practices violate
the Act for racial reasons.
The record shows that Respondent 's business agent,
O'Brien, testified that since "sometimes along in the
'60's" only sons and nephews of members were consid-
ered for membership,' and at that time he did not
know of any Negro members. It was stipulated that
during the months of October, November, and Decem-
Paul Vogler, Jr. v McCarty, Inc, 294 F Supp 368 (D.C La .), affd
sub nom, Local 53 of the Intl Assn . of Heat & Frost Insulators v
Paul Vogler, Jr., 407 F 2d 1047 (C A. 5, 1969), in which an injunction
issued against Respondent for discriminating against Negroes and Mexican-
Americans in employment on account of their race , color, or national
origin
' Local Union No. 12, United Rubber, Cork, Linoleum & Plastic
Workers of America, AFL-CIO (The Business League of Gadsden), 150
NLRB 312, 320-322, enfd 368 172d 12 (CA 5), cert denied 389
U S 837
6 Houston Maritime Association , Inc., and Its Member Companies, 168
NLRB No 83 , enforcement denied on other grounds 426 F 2d 584
(C A 5) Cargo Handlers, Inc, 159 NLRB 321, and cases cited therein
' It appears that membership thus was barred to Negroes and Mexican-
Amencans
645
ber 1965 and January 1966 there were no Negroes
in the membership of Respondent. Moreover, O'Brien
further testified that it was the policy of the Union
during the winter of 1965 not to admit Negroes
into membership; and in the winter of 1965 no Negroes
were referred out to work. It was stipulated that
Casimere Joseph, a Negro and the first to apply
for membership, applied "for the Union" around
the end of December 1965. O'Brien testified that
the policy of the Union during October, November,
and December 1965 and January 1966 was not to
refer Negroes out for employment.
The first Negroes who applied to the Union for
employment were referred on November 19 and 23,
1965, respectively, by the Urban League, and
Respondent refused to send them out for employment.
It is also alleged by the General Counsel that
Respondent discriminated against Mexican-Ameri-
cans. While the evidence is clear with respect to
the Respondent's policy not to admit Negroes to
membership and not to refer them to jobs, it also
appears that Respondent had a policy against admit-
ting Mexican-Americans to membership. Thus
O'Brien testified that Respondent had been working
three Mexican brothers from Mobile but that, in
effect, there were not enough Mexicans in New Orle-
ans to be a problem. O'Brien also stated that "if
you were over in San Antonio or El Paso . . .
they could probably charge you with discrimination
.... In this connection we also note the statement
of Union Steward Jimmy Lawrence to Galaviz that
"they wanted to keep the Negroes and Mexicans
out of the Local." This statement is not denied by
Lawrence. It is also noted that Vogler made unsuccess-
ful attempts to inquire about getting Galaviz, a Mexi-
can-American, into the local.'
Based on the facts detailed above, I would, find
that the Respondent on the critical dates herein
involved maintained a preferential hiring arrangement
which discriminated against Negroes and Mexican-
Americans because of race and national origin. I
would also find that the Respondent, by maintaining
a hiring arrangement which gave preference on the
basis of race or national origin as well as preference
on the basis of union membership, violated Section
8(b)(2) and (1)(A) of the Act. To remedy such viola-
tion, I would order that the Respondent cease and
desist from operating a hiring arrangement which
is unlawful on the basis of race as well as union
membership and, if it continues a hiring hall, to
See Vogler v McCarty, Inc., supra, in which an injunction issued
against Respondent for discriminating against Negroes and Mexican-
Americans in employment on account of their race, color, or national
origin
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operate one that is not discriminatory on either of
these two grounds.'
' Houston Maritime Association, Inc, and Its Member Companies, 168
NLRB No 83, enforcement denied solely on the ground of insufficient
evidence to support a finding of racial discrimination during the 10(b)
period, 426 F 2d 584 (CA 5), Cargo Handlers, Inc, 159 NLRB 321
Cf Local Union No 12, United Rubber, Cork, Linoleum & Plastic
Workers of America, AFL-CIO (The Business League of Gadsden), 150
NLRB 312, enfd 368 F 2d 12 (C A 5), cert denied 389 U S 837,
Local1367, International Longshoremen 's Association , AFL-CIO (Galveston
Maritime Association, Inc), 148 NLRB 897, enfd 368 F 2d 1010 (C A
5); Independent Metal Workers Union, Local No I (Hughes Tool Compa-
ny), 147 NLRB 1573 where the Board held that discrimination based
on racial considerations , when engaged in by a statutory bargaining
representative, constitutes inherently unfair representation
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause or attempt to cause
McCarty, Inc., and Armstrong Contracting and
Supply Corporation, members of the Master Insu-
lators Association, or any other employer, to
discriminate against employees or prospective
employees by refusing to hire them on the unlaw-
ful basis of union membership or maintain, per-
form, or enforce, by agreement or otherwise,
any like or related arrangement in a manner
whereby referrals to available jobs are based on
the unlawful basis of union membership. If we
continue to operate a hiring hall or arrangement,
we will operate one that does not discriminate
on the basis of union membership.
WE WILL NOT cause or attempt to cause
McCarty, Inc., and Armstrong Contracting and
Supply Corporation, members of the Master Insu-
lators Association, or any other employer, to
deny any employee overtime, to lay off or transfer
him, or to discriminate against him in any way,
because of his nonunion status.
WE WILL NOT cause any employer to hire
a union member because a nonmember is on
a job if such hire results in the displacement
of such nonmember.
WE WILL NOT threaten any employer with
a strike, or with the withdrawal of skilled labor,
for refusing to deny overtime, to lay off, or
to otherwise discriminate against a nonunion
employee because of his nonunion status.
WE WILL NOT in any like or related manner
restrain or coerce nonmembers in the exercise
of their rights as employees under Section 7
of the Act.
WE WILL pay to Paul A. Vogler, Jr., Juan
B. Galaviz, Leon Kerr, Horace D. Brown, Bill
Wonzer, Olan Wonzer, and Brooks Fullen, Jr.,
all the regular and overtime wages they have
lost since 1965 as a result of being replaced
on overtime jobs by union members, plus 6 per-
cent interest.
WE WILL credit Paul A. Vogler, Jr., Juan
B. Galaviz, Leon Kerr, Horace D. Brown, Bill
Wonzer, Olan Wonzer, and Brooks Fullen, Jr.,
for application of the welfare fund, with the
number of hours they would have worked if
they had not been discriminatorily laid off and/
or transferred for applicability of the welfare
fund.
WE WILL credit Paul A. Vogler, Jr., Juan
B. Galaviz, Leon Kerr, Horace D. Brown, Bill
Wonzer, Olan Wonzer, and Brooks Fullen, Jr.,
with any contributions which Respondent may
be required to make to the welfare fund and
which these employees would have received but
for the discrimination against them.
WE WILL keep full records of our nondiscrimi-
natory hiring hall and our welfare and pension
funds and make such records available to the
Board for periodic inspection.
Dated By
INTERNATIONAL
ASSOCIATION OF HEAT
AND FROST INSULATORS
AND ASBESTOS WORKERS
LOCAL No. 53
(Labor Organization)
(Representative)
(Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 701 Loyola Avenue, New Orleans, Louisiana
70113, Telephone 504-527-6361.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Trial Examiner: This case was
tried at New Orleans, Louisiana, on April 2-5 and 8-
10, 1968, pursuant to a charge filed on January 13, and
ASBESTOS WORKERS, LOCAL 53 647
amended February 11, 1966,' by Paul A Vogler, Jr., an
employee of McCarty-Branton, Inc., herein called McCarty,
against the Respondent , International Association of Heat
and Frost Insulators and Asbestos Workers Local No.
53, herein called the Union, and pursuant to a complaint
issued June 2, 1967.
The Union, with a restricted membership of about 260,
was the recognized bargaining representative of about 1,200
insulator mechanics and helpers employed by McCarty,
Armstrong Contracting and Supply Corporation, herein
called Armstrong, and the other insulation contractors in
the Master Insulators Association of New Orleans & Baton
Rouge, La., Inc., herein called the Association. The primary
issues are whether the Union was a party to an oral
understanding, arrangement, and practice which gave priori-
ty in employment to union members, and whether the
Union caused the contractors discriminatorily to deny over-
time employment to Vogler and five other nonmember
"permit men," and to transfer and/or lay them off, in
violation of Section 8(b)(2) and (1)(A) of the National
Labor Relations Act, as amended.
Upon the entire record,' including my observation of
the demeanor of the witnesses , and after due consideration
of the briefs filed by the General Counsel and the Union,
I make the following:
Baton Rouge area, and a critical shortage of qualified
insulators. The Union, with restrictive membership policies,
then had about 260 members
This case arose in January 1966, when insulator mechanic
Paul A. Vogler, Jr., filed a charge against the Union,
alleging that it was discriminating against nonunion employ-
ees. Thereafter, and before issuance of the complaint herein,
the U. S. District Court for the Eastern District of Louisiana,
New Orleans Division, in Civil Actions No. 66-749 (Paul
A. Vogler, Jr., and Casimer Joseph, III v. McCarty, Inc.,
and the Union), and No. 66-833 (U. S., by Ramsey Clark,
Attorney General v. Local 53 of the International Association
of Heat and Frost Insulators and Asbestos Workers), held
a hearing on January 19-20 and 24, 1967, concerning
alleged violations of the Civil Rights Act of 1964. On
May 31, 1968, the court issued a temporary injunction
(which remained in effect at the time of trial of the present
case), enjoining racial discrimination in membership require-
ments and referrals. The court did not have before it
the unfair labor practices discussed herein and therefore
did not rule upon them. (The Union's motions to dismiss
and not to rule, filed in the present proceeding, are denied
for lack of merit.)
B. The Illegal Hiring Procedure
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYERS AND THE LABOR
ORGANIZATION INVOLVED
McCarty and Armstrong each were Louisiana corpora-
tions, with their principal places of business in New Orleans,
Louisiana, and were engaged in the insulation contracting
business, receiving annually goods and materials valued
in excess of $50,000 directly from outside the State. The
Union admits, and I find, that McCarty and Armstrong
were each engaged in commerce within the meaning of
Section 2(6) and(7) of the Act, and that the Union is
a labor organization within the meaning of the Act. The
Union also admits that McCarty, Inc, has been the successor
of McCarty since June 30, 1966, and that the Association,
composed of about 12 employers in the New Orleans and
Baton Rouge area, represents the employer members in
the negotiation and administration of collective-bargaining
agreements with the Union.
iI. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
In 1957, when Gerald W O'Brien was elected business
agent , the Union had a membership of "a little over 200"
and only 120 jobs. By the fall of 1965, during a boom
in industrial construction and following Hurricane Betsy,
there were around 1,200 jobs in the New Orleans and
' All dates, unless otherwise indicated , are in the period from October
1965 to January 1966
' The General Counsel's motion to correct the record, dated October
8, 1968, is granted and the record is corrected accordingly
The evidence is undisputed that although there was no
mention of a hiring or referral procedure in the Association-
Union collective-bargaining agreement during the period
in question (the fall and winter of 1965-66), McCarty,
Armstrong, and the other employer-members of the Associa-
tion followed the practice of securing their insulator mechan-
ics and "improvers" (helpers or apprentices) from the Union.
Under this practice, "cardmen" (members of the Union)
were permitted to solicit their own jobs and to work without
union referrals, and were given first preference by the
Union in making referrals to the contractors. When a
sufficient number of cardmen were unavailable to supply
a contractor's request for applicants, the Union gave second
preference to "travelers" (members of other locals of the
same International) who, like cardmen, paid dues to the
Union. When additional employees were needed, the Union
would either refer nonmembers, or give referrals to persons
sent to the union hall by the contractor. These nonmember
"permitmen" paid no dues.
There was undisputed testimony that the contractors
orally agreed to this longstanding hiring and referral proce-
dure in order to have access to qualified insulator mechanics.
However, the undisputed evidence also shows that preference
was given on the basis of union membership, not on the
basis of ability, residence, etc. Even those union members
who were considered unsatisfactory as employees were given
preference over those nonmembers who were highly skilled,
long experienced, and highly regarded as employees-despite
their inability to join the Union.
It is clear that the Union, in being a party to this
oral understanding, arrangement, and practice, of giving
preference in referrals and hirings on the basis of union
membership, violated Section 8(b)(2) and (1)(A) of the
Act
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Discrimination Against Permitmen
1. Overtime denied Bill and Olan Wonzer
Under the collective-bargaining agreement, all work out-
side the regular 8 hours a day, Monday through Friday,
was overtime at double pay.
On October 28, when Armstrong's job at the American
Cyanamid plant went on an overtime basis, all five of
the mechanics on the job were permitmen. They began
working 2 hours a day overtime, raising their daily wage
from $34.80 (8 hours at $4.35) to $52.20 (8 hours plus
2 hours at $8.70).
The next week 11 mechanics were added to the job.
These included two cardmen, two travelers, permitmen
Bill and Olan Wonzer, and another permitman, hired on
Wednesday, November 3. The four others hired later that
week were a permitman hired on Thursday, and a permitman
and two travelers on Friday. (Concerning these last two
persons, the parties agreed that one was a traveler, but
questioned whether the other was a traveler or a permitman.
From all the evidence, I find that both were travelers.)
On Friday, November 5 (their third day on the job),
permitmen Bill and Olan Wonzer asked Foreman Charles
Feraci if they could work that weekend Feraci (according
to the Wonzers' undisputed testimony) answered no, the
overtime was reserved for the cardmen only. That weekend,
Bill and Olan Wonzer, and the five other permit mechanics
then remaining on the job, did not work. (I note that
one of these five permitmen, Barney Jordan, worked as
a superintendent on this job on December 11-12 and 17-
19.) However, both cardmen and all four of the travelers
on the job did work that Saturday, November 6, as did
six mechanics who worked elsewhere during the week.
These latter six were all cardmen, except permitman Paul
McCarthy who was permitted to join the Union shortly
thereafter. (In some instances, permit helpers were permitted
to work overtime when permit mechanics were not. All
travelers were mechanics, and at least 90 percent of the
"improvers" in the Union were upgraded to mechanics )
There is no direct evidence that the job steward, cardman
Charles Kraemer, participated in this discrimination against
the permitmen on the job. However, permitman Vogler
(who was then working across the road on the McCarty
job at the American Cyanamid plant) credibly testified
that one day in the latter part of October, steward Kraemer
came to the McCarty job, seeking mechanics to work
overtime. Vogler volunteered, but the McCarty job steward,
James Lawrence, told Kraemer, "No, no, he is a permit
man." Kraemer told Vogler, "Well, I can't use you then."
(Vogler believed that this work was to be performed during
the evening, but the Armstrong payroll records show that
10 hours of overtime was performed on Saturday, October
29, by 10 mechanics, including General Foreman Michael
Marino from the McCarty job. All 10 were cardmen, except
Paul McCarthy, mentioned above.) Permitman Vogler also
credibly testified that sometime around Thanksgiving he
saw some of the mechanics leaving the McCarty job to
work overtime on the weekend "up the river" at Little
Gypsy. Vogler again volunteered, but Job Steward Lawrence
refused, saying, "No, we don't need any men, just cardmen
going up there." (I discredit Lawrence's denial that he
had anything to do with the assigning of overtime. He
did not impress me as a trustworthy witness.)
Despite the lack of direct evidence that Job Steward
Kraemer participated in the November 6 discrimination
against the permitmen in the assignment of weekend over-
time, I draw an inference that the job steward did on
that occasion, as did he and other union representatives
on other occasions (as herein found), carry out the union
policy, discussed hereafter, of inducing employers to give
preference to cardmen in the assignment of overtime.
Accordingly I find that the Union violated Section 8(b)(2)
and (1)(A) by causing Armstrong to deny overtime employ-
ment to permitmen Bill Wonzer and Olan Wonzer on
November 6 and thereafter
2. Layoff of Bill and Olan Wonzer
The following week, Armstrong hired two travelers on
Monday (November 8), two on Tuesday, and two on Wed-
nesday, and a cardman on Thursday-totaling six new
travelers and one new cardman on the job. On Friday
(November 12) the four permit mechanics on the job were
laid off because of "No work." (The payroll records show
that the fifth permitman, Barney Jordan, "worked on anoth-
er job during week.") The employees were still working
10-hour days. Thus, after 2 weeks of overtime on the
job, the 5 permit mechanics had been replaced with 3
cardmen and 10 travelers. The following week, four of
the travelers (Tillman, Galloway, Williams, and Lose) were
laid off because of "No work," and one (Logan) quit-
leaving three cardmen and five travelers on the job, and
no permit mechanics.
Before considering what permitmen Bill and Olan Wonzer
were advised on the day of their layoff, I note this apparent
"loading down" of the job with cardmen and travelers,
until the permitmen were laid off, was not an isolated
occurrence. First, as discussed below in connection with
the McCarty job, Union Business Agent O'Brien admitted
that he sent two cardmen out to a job, and that the
foreman "told me that he never ordered the two men."
O'Brien responded, "Well, try and make room for them,
because I do understand that you have a couple of permitmen
left on that job." O'Brien later testified, "I always request
a foreman to give the first consideration to our members;
those are the ones I represent and who pay my salary."
He admitted that a "lot of times" he would ask the foreman
"about using our members for overtime," and that "Most
of the time" this was in response to "pressure" from his
members. Secondly, a union witness, McCarty Field Superin-
tendent Salvadore Genovese, testified that, "It has been
a practice that as long as you have a permitman there,
a cardman can come on that job," and that if there are
extra cardmen on the job, the permit men "are the first
ones to get laid off." "That has always been the practice,"
because cardmen " are dues paying members of the Local."
Thirdly, Association President James Poche credibly testi-
fied that during his company's job at the American Cyanam-
id ammonia plant, Business Agent O'Brien on occasions
would tell him, "Jim, you know you have got some permit-
ASBESTOS WORKERS, LOCAL 53
men on the job and I have got a couple of cardmen."
Poche would refuse to replace the permitmen with cardmen,
but later would find that, contrary to company policy,
the job steward and the foreman (both cardmen), had
replaced the permitmen with cardmen. Poche added that
"this is a practice that we know of, we don't take part
in it; it is strictly a union function."
Returning to the Armstrong job, on the morning of
the Wonzers' November 12 layoff (according to their undis-
puted testimony), the Union's job steward, Charles Kraemer,
told them "that he had had a call from the business
agent [O'Brien] about all permit men and not to go to
work until he had a chance to call him back." A few
minutes later, Steward Kraemer told them, "you all go
ahead and go to work, that it will be around 8:30 o'clock
before I can get ahold of the business agent." Later that
morning, the steward told them that they would be laid
off that afternoon, but that they could finish the day.
They were laid off that afternoon. Their work was satisfac-
tory-the foreman having complimented them for doing
"real good" work.
After considering all the evidence and the circumstances,
including the job steward's actions on the morning of
the layoffs, I find that the General Counsel has proved
by a preponderance of the evidence that the Union caused
the discriminatory layoff of these two permitmen-even
if the union steward had not been an agent of the Union
and his statements are not considered for their truthfulness.
This finding is supported by the fact that, as argued by
the General Counsel, the Union "introduced no testimony
to rebut General Counsel's prima facie case."
Moreover, the evidence establishes that the job steward
was the Union's agent. In Business Agent O'Brien's words,
the job steward "is my policeman on the job." In view
of all the circumstances, I find that the statements made
by Steward Kraemer are properly considered as admissions
against the Union's interest, and that the Union induced
the contractor to lay off the permitmen because of their
nonunion status.
Accordingly, I find that the Union caused Armstrong
on November 12 to lay off Bill and Olan Wonzer discrimina-
torily, in violation of Section 8(b)(2) and (1)(A) of the
Act.
3. Transfer of permitmen from overtime job
Another overtime job was the McCarty job at the Ameri-
can Cyanamid plant. There the employees were usually
working 10 hours a day, Monday through Friday, until
late December, when weekend overtime began.
a. Implied threat of work stoppage
Sometime in December, Business Agent O'Brien went
to the McCarty jobsite and talked to Vice President Tom
Branton , Field Superintendent Salvador Genovese, and Engi-
neer Bill Cobb concerning the employment of cardmen
on the job and the distribution of overtime (Although
Branton remembered the visit having occurred earlier in
December, I find that it occurred sometime after December
14, when the last permit mechanic, Leon Kerr, was referred
649
by the Union and hired on the job) According to Branton's
credited testimony, O'Brien told them that "his membership
would be given preference on that job" over permitmen
and travelers "as long as there was overtime available
. . . The gist of the conversation was either that the
Union was assured that the membership would be given
preference to the overtime on the job, or that we would
not have men on any job. My answer was that if this
be the case, we ask only for one consideration and that
was that we be advised as soon as possible the intent
to send any men to that particular job, so that we might
prepare, as best we could, for that membership " (Emphasis
supplied.) When called as a union witness, Superintendent
Genovese denied being present when Vice President Branton
and Business Agent O'Brien discussed overtime on the
job, but later admitted that he was present when "Mr.
O'Brien told Mr. Branton, as long as we had permit men
on this job, any time a cardman showed up at the gate,
we would have to put him to work." As indicated above,
Genovese also testified that when there are extra men
on the job, the permitmen are "the first ones to get laid
off " (I discredit O'Brien's denial that he threatened to
shut down the job if his members did not make the overtime,
and his claim that it was months earlier, before the overtime
began, when he met with Branton and Genovese and said
that "when this job goes overtime, I would like to see
Local 53 members making the overtime.")
b Transfer ofpermitmen
On Monday, December 27, the permit mechanics on
the job were Vogler, Kerr, Horace D Brown, and Brooks
Fullen, Jr. (plus Juan B. Galaviz, who had been granted
a leave of absence). On Tuesday, two travelers were sent
to the job. On Wednesday, one cardman was sent, and
on Thursday, two additional cardmen. In the meantime,
on that Wednesday, December 29, McCarty transferred
permitmen Kerr and Brown to a straight-time job. That
left Vogler and Fullen as the only permit mechanics then
working on the overtime job. On Friday, December 31,
McCarty transferred Fullen to a straight- time job, and
transferred Vogler (with Galaviz) to the International Trade
Mart, another straight-time job.
Business Agent O'Brien admitted that sometime that
month, "I believe I sent . . . two cardmen out to the
[McCarty] job and [General Foreman Michael Marino]
told me that he never ordered the two men, and I said,
`Well, try and make room for them, because I do understand
that you have a couple of permitmen left on that job ' "
He also admitted telling Marino that Marino ought to
talk to Field Superintendent Genovese "about the possibili-
ty" of transferring the "two permitmen that were on the
job." (The payroll records show that the last week in
December was the only time during the month when such
remarks would have been applicable.) O'Brien testified that
it was his normal duties to try to secure the best overtime
opportunities for his members, that "I always request a
foreman to give the first consideration to our members;
those are the ones I represent and who pay my salary,"
and that "Most of the time ," it was in response to some
pressure from his members when he spoke to the foreman
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about getting some cardmen on an overtime job. (In his
January 10, 1967, deposition given in the district court
proceeding, Business Agent O'Brien made further admis-
sions He testified, "I sent a pair one day and a couple
of days later I sent another pair. Mike [Marino] called
and said that he hadn't ordered anybody, and I said,
`Mike, as long as you got overtime on that job, they
are going to bother me to death, so why don't you transfer
two permit men?"'
General Foreman Marino finally admitted that there
had been such a conversation in which Business Agent
O'Brien "said that he had been having complaints that
a lot of the cardmen wanted the overtime jobs, and it
would save a lot of confusion and trouble, if [the permitmen]
would be transferred," and that O'Brien "had sent a few
men out . . . so I just assigned the two men or the
four men, whatever it was . . . and put them to work."
(When claiming that this conversation occurred weeks earli-
er, Mario appeared to be attempting to support his prior
answers, which I discredit, that in late December, he did
not get a telephone call from Business Agent O'Brien con-
cerning permitmen on the job, or putting on cardmen,
or about overtime, or transferring the permitmen.)
On Sunday, January 2 (the first weekend after 2 travelers
and 3 cardmen were sent to the job for the overtime,
and 5 permitmen were transferred to straight-time jobs),
16 travelers and cardmen on the job, and 6 cardmen trans-
ferred in for the 1 day, each worked 10 hours of overtime.
No permit mechanic was left on the job. On the two
succeeding weekends, the employees worked both Saturday
and Sunday. (The overtime wage for a mechanic working
10 hours on Sunday was $87, and for working 10 hours
on both Saturday and Sunday was $174-the same pay
as for 40 hours a week on a straight-time job. I discredit
General Foreman Marino's claim that permit man Vogler
"volunteered" to be transferred to the ITM job.)
Marino admitted that Vogler, Galaviz, Kerr, and Brown
did satisfactory work. Vogler has been an insulator mechanic
since 1941; Galaviz has worked in the trade for about
19 years; Kerr has been a mechanic 4 years; and Brown
has been an insulator 10 years.
Apart from all other evidence, the above demonstrates
that the Union induced McCarty to transfer the permit
men from the overtime job because of their lack of union
membership, and in order to give preference to union
members in the assignment of overtime. (Without explana-
tion, the General Counsel failed to name Fullen as one
of the discriminatees. I therefore make no findings as to
him.)
c. Corroborating evidence
There is much credible evidence corroborating the dis-
criminatory inducements.
Permitman Kerr, who was transferred on December 29,
credibly testified that General Foreman Marino "came
around and said that he was going to have to transfer
us to another job, that they had to make room for the
cardmen." Kerr asked if it was "because of poor work
or anything," and Marino answered, "No, I am real satisfied
with your work It is something that I have to do . .
Similarly permitman Brown, who was also transferred on
December 29, credibly testified that Marino "told
us . . he was transferring us to another job He said that
he had to make room for the cardmen." Marino had told
them that there would be more overtime on the job. (I
discredit Marino's denial that there was not any way in late
December of knowing whether the job "was going on
overtime ")
Vogler, who was transferred on December 31, credibly
testified that both General Foreman Marino and Field
Superintendent Genovese told him that Business Agent
O'Brien said that they had to get the permitmen off the
.job, and that he complained, stating that this was not
fair.
On Saturday, January 1, the day after Vogler and Galaviz
were transferred to the ITM job, Galaviz telephoned Marino
who (in Galaviz' words) "told me that they were having
trouble with the Local . . that he had to transfer me
from the American Cyanamid job to the International
Trade Mart job, with Mr. Vogler, because he had been
instructed to lay off all of the permitmen." Galaviz also
credibly testified that Marino "wanted to know why I
had not come back, that they needed me, they wanted
me to come back. And he had told Mr. Vogler several
times to tell me to come back." (General Foreman Marino
had given Galaviz a leave of absence on December 3
to visit his sick father-in-law in Texas. Instead of returning
in about a week as planned, Galaviz had worked on an
overtime job for a while in Texas before deciding to return.
I discredit Marino's denial that he had given Galaviz a
leave of absence, and also his testimony-which was contra-
ry to McCarty's payroll records-that Galaviz had quit.
Marino testified that he "possibly" could have placed Galav-
iz back on the job if he had been a cardman.)
In his brief, the General Counsel "respectfully submits
that Marino's primary allegiance was to his Union, and,
in carrying out the general union policy of discriminating
against permit men, Marino's actions and comments, made
in his agency capacity, are binding on the Union," citing
such cases as Local 1016, United Brotherhood of Carpenters
(Booher Lumber Co., Inc.), 117 NLRB 1739, 1744 (1957).
The evidence shows that Marano is an active member
of the Union and a former vice president, and had been
a member of the union executive board for 3 years, until
November 1964. When testifying about the union obligations
of foremen members, Business Agent O'Brien testified that
"They have sworn under oath when they become a member
to look out for the welfare of their brother members,"
that they are subject to union charges, and that when
the Union sends a man from the hall without a "call-
in" for men and there is an excess of men on the job,
the foreman is "expected" to "make room for them."
Marino admitted that since he became a foreman, he has
been directed to appear before the executive board. Also
in connection with the control the Union exercises over
the foremen members, I note that in the minutes of the
March 18, 1966, union membership meeting, a motion
was passed "that all foremen send to Union office copy
of time sheet." I agree with the General Counsel's conten-
tion, and find that General Foreman Marino's statements
are properly considered as admissions by the Union. (I
ASBESTOS WORKERS, LOCAL 53 651
find it unnecessary to rule on the General Counsel's further
contention that Field Superintendent Genovese-a former
union official who has a current union membership with-
drawal card and who likewise is subject to union discipline-
also acted in a dual-agency capacity, representing both
McCarty and the Union )
However, with or without this corroborating evidence,
I find that the Union induced McCarty to transfer Kerr
and Brown on December 29, and Vogler and Galaviz
on Decmeber 31, from the overtime job to straighttime
jobs because of their nonunion status and in order to
provide more overtime for union members, and induced
McCarty to deny overtime employment to Kerr and Brown
on and after December 30, to Vogler on and after January
2, and to Galaviz after January 2, in violation of Section
8(b)(2) and (1)(A) of the Act.
4. Layoff of Vogler and Galaviz
On Monday morning, January 3, permitmen Vogler and
Galaviz reported to work on the "inside" ITM job, which
was scheduled by McCarty to last several months. However
on Wednesday, January 5, McCarty Field Superintendent
Genovese laid them off, and Business Agent O'Brien admit-
tedly refused to refer them to other jobs.
At one point, Business Agent O'Brien testified:
Q. In the conversation with Mr. Genovese concerning
Vogler and Galaviz, did you say to Mr. Genovese,
"Tell them if they are not satisfied with the job,
get off of it?
A. Right. Yes sir.
Q. And, "I told Sal if they ain't satisfied with the
job, get rid of them?"
A. Right. Yes, sir . . .
Similarly in the injunction proceeding, he testified on
January 10, 1967:
A. . . . Genovese called me and complained about
these two never being satisfied with forty hours, that
they were mad because they were moved off the over-
time job . . . . So . . . when Sal called me, he
sounded upset that these guys are never satisfied. All
they're looking for is overtime . . . . So I told Sal,
"If they ain't satisifed with the job, run them, get
rid of them" . .
Despite these admissions, which I credit, Business Agent
O'Brien denied inducing Genovese to lay off the two permit-
men. Concerning what happened that week, O'Brien and
other union witnesses gave highly conflicting and implausible
versions which, because of their content and because of
the demeanor of the witnesses on the stand, I find to
have been largely fabrications.
After considering all the credible evidence, I find that
Business Agent O 'Brien instructed Field Superintendent
Genovese to lay off the two permitmen, not only because
of the above-quoted reason stated by O'Brien, but also
because of at least one additional discriminatory reason:
cardmen were complaining that they had been "rained
out" that week on outside construction jobs while these
two permitmen were working on the "inside" ITM job.
I also find that neither of them would have been laid
off if they had been working as cardmen instead of as
permitmen.
Accordingly , I find that on January 5, the Union induced
McCarty discriminatorily to lay off Vogler and Galaviz,
in violation of Section 8(b)(2) and (1)(A) of the Act.
D. Other Allegations
The complaint alleges that the Union engaged in violations
of the Act through racial discrimination. However, under
the circumstances of this case, I deem it proper, as a
matter of comity between branches of the Federal Govern-
ment, not to rule on these additional matters which apparent-
ly are similar to the racial issues before the U.S. District
Court.
The complaint also alleges that from January 5 until
about August 1966 the Union refused to refer Vogler because
of his nonunion status. However, inasmuch as the remedy
for such a violation would be cumulative, I find it unneces-
sary to rule on the allegation.
CONCLUSIONS OF LAW
1. By causing McCarty, Armstrong, and other employer-
members of the Association, through a discriminatory oral
understanding, arrangement, and pracitce, to give priority
in employment to union members in violation of Section
8(a)(3) of the Act, the Union has engaged in unfair labor
practices affecting commerce within the meaning of Section
8(b)(2) and (1)(A) and Section 2(6) and (7) of the Act.
2. By causing Armstrong discriminatorily to deny over-
time to Bill Wonzer and Olan Wonzer on and after Novem-
ber 6, and to lay them off on November 12, because
of their nonunion status, the Union violated Section 8(b)(2)
and (1)(A) of the Act.
3. By causing McCarty discriminatorily to transfer Kerr
and Brown on December 29 and Vogler and Galaviz on
December 31, to deny them overtime thereafter, and to lay
off Vogler and Galaviz on January 5, because of their
nonunion status, the Union violated Section 8(b)(2) and
(1)(A) of the Act.
THE REMEDY
:-laving a policy of not charging "permitmen" any dues,
the Respondent has openly and flagrantly violated the
Section 7 rights of this large group of nonmembers which
it represents, by causing the insulation contractors to give
preference to dues-paying members in hirings , assignment
of overtime, transfers, and layoffs, on the basis of union
membership. As a result, permit mechanics Vogler, Galaviz,
Kerr, Brown , and Bill and Olan Wonzer were denied over-
time (at double pay) and laid off or transferred from
overtime jobs because of their nonunion status. This occurred
during an employment boom (following Hurricane Betsy,
a large influx of industrial work in the area in 1965, and
increased commercial work in the area since then), and
during a period of a labor shortage, when the contractors
were attempting to retain qualified insulators by transferring
them from job to job. Consequently, when the Respondent
induced the contractors to replace the permit men because
of their nonmembership , it deprived the permit men of
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
virtually full-time employment in the area , plus the overtime
when required . Because of these circumstances , I find that
the mere payment of earnings lost on the particular jobs
to which these six employees were assigned at the time
of the discrimination would not make them whole for
or provide an effectual remedy. In order to vindicate these
employees ' Section 7 rights, and to make them whole,
I find it essential for the Respondent to be ordered to
pay them for all regular and overtime wages lost, from
the dates of the discrimination to the time the notice
required herein is posted , as a result of the discrimination
induced by the Respondent , preventing the respective con-
tractors from continuing to employ them , and to transfer
them from job to job , as needed . Such loss of earnings
shall be computed in the manner set forth in F. W. Wool-
worth Company, 90 NLRB 289, with interest at 6 percent
per annum as provided in Isis Plumbing & Heating Co.,
138 NLRB 716.
The Respondent must also be ordered to cease and desist
from various unfair labor practices found , and to take
other affirmative action , which I also find necessary to
remedy and to remove the effect of the unfair labor practices
and to effectuate the policies of the Act. Because of the
U.S. District Court 's prior injunction regulating the opera-
tion of the Respondent 's hiring hall, I shall not make
any recommendation concerning a remedy for the discrimi-
natory oral understanding , arrangement , and practice, giving
priority in employment and referrals on the basis of union
membership.
[Recommended Order omitted from publication.]