Boilermakers, Local 101Download PDFNational Labor Relations Board - Board DecisionsSep 18, 1973206 N.L.R.B. 30 (N.L.R.B. 1973) Copy Citation 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Boilermakers, Iron Ship officers, agents, and representatives,'shall take the ac- ,Builders, Blacksmiths , Forgers and Helpers, Local tion set forth in the said recommended Order. 101 (Stearns-Roger Corporation) and Samuel Stod- dard. Case 27-CB-700 September 18, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO On April 13, 1973, Administrative Law Judge James R. Webster issued the attached Decision in this proceeding. Thereafter, the Respondent Union filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a brief in support of the Administrative Law Judge's Decision and in support of his cross-exceptions. 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 briefs and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order .3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 101, Denver, Colorado, its i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings 2 Respondent takes the position in its exceptions and brief that it was denied due process in that amendments made to the complaint at the hearing were totally outside the scope of the charge filed, and were, therefore , beyond the statutory jurisdiction of the Board to consider because the amendments had the ultimate effect of changing the specific charge of discrimination against a single individual into a "class action" without adequate notice to Respondent of the specifics of any such charge so as to enable Respondent fairly to meet the charge . We find this position without merit in view of the fact that Respondent concedes that it suffered no surprise and the hearing was continued from September 21, 1972, to October 24 , 1972, so that Respon- dent could more adequately prepare its defense. 3 Nothing in this Decision precludes the General Counsel from estab- lishing in the compliance portion of this proceeding that there are additional individuals whom Respondent has caused discrimination against and who are entitled to a remedy under the terms of this Order. DECISION STATEMENT OF THE CASE JAMES RICE WEBSTER, Administrative Law Judge: This case was heard in Denver, Colorado, on September 19, 20, 21, and October 24, 25, and 27, 1972. The complaint was issued on August 2, 1972, and amended at the hearing on charges filed June 12, 1972. The complaint alleges that Re- spondent has operated an exclusive hiring hall in a discrimi- natory manner since on or about December 12, 1971, thereby discriminating against Samuel Stoddard and other nonmembers , of Respondent, and that Respondent has thereby violated Section 8(b)(1)(A) and 8(b)(2) of the Na- tional Labor Relations Act, as amended, herein called the Act. Briefs have been filed by the General Counsel and the Respondent, and these have been carefully considered. Mo- tion to correct transcript dated October 24, 1972, and filed by counsel for General Counsel is granted. Upon the entire record, including my observation of the demeanor of the witnesses, I hereby make the following: FINDINGS OF FACT I JURISDICTION Stearns-Roger Corporation is a Colorado corporation which annually purchases and receives goods and materials valued in excess of $50 ,000 from points outside the State of Colorado. Babcock and Wilcox Company, Delta Mechani- cal Contractors, Inc., and Lower and Cool, Inc., are corpo- rations doing business in the State of Colorado and during the past calendar year purchased goods or services from outside the State of Colorado equal to or exceeding $50,000 in value. The following corporations doing business in the State of Colorado had sales or performed services equal or exceed- ing $50,000, to customers outside the State of Colorado dur- ing the past calendar year: Ramsey Engineering Co. Ceco, Inc. New England Lead Burning Co., Inc. Swinerton & Walberg - Chicago Bridge & Iron Company Koppers Company, Inc. Engineering & Construc- tion Division Fluor Utah, Inc. C F & I Fabricators of Colorado Delaual Turbine Inc., Deltex Div. (referred to in record as Ashley Hickem) Pittsburgh-Des Moines Steel Company (referred to in record as P. D. M. Corporation) Inseco, Inc. Rafcon Industries, Inc. Combusion Engineering, Inc. (referred to in the record as C. E.) 206 NLRB No. 5 BOILERMAKERS , LOCAL 101 31 State, Inc. Jeffco Steel Fabricators, Inc. Jelco Incorporated Tray Installation & Inspection Corp. Ebasco Services is a member of the Associated General Contractors of Colorado, which is an association and en- gages in collective bargaining on behalf of its members. I find that each of the above-named companies are en- gaged in commerce or in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. n. THE LABOR ORGANIZATION INVOLVED days and 2 hour. He again registered for employment at Respondent's hiring hall on April 7, 1972. On May 3, 1972, he was referred to a job in Denver , Colorado, 'which job lasted 2 weeks and 3 days . He again registered for employ- ment on May 19, 1972 . He received no further referrals and left the area on June 19 , 1972, for employment in Rawlins, Wyoming . He worked on this job until about the middle of July 1972. He returned to Denver but did not again sign Respondent 's out-of-work list. His next job started on Au- gust 1, 1972, in Rock Springs (state not given) and he was still working on this job at time of hearing in September 1972. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 101, herein referred to as Respondent or the Union, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES I A. Prefatory Statement and Issues The issue in this case is whether or not Respondent oper- ated its exclusive hiring arrangement in a discriminatory manner at all or any times following December 12, 1971, thereby denying employment to Samuel Stoddard and others. Respondent has about 800 members , of whom about 650 are employed in shops where job turnover is relatively light. The remaining 150 are employed in field construction work where periods of employment are usually counted in days, weeks, or months . It is the field construction work that is involved in this hearing. The field construction employees are divided into two categories : (1) primary or qualified men; those who have demonstrated by passing a competency test or by serving an apprenticeship or by 4 years of actual practical experience that they are qualified for this category; (2) secondary or manpower men ; this category includes all others who are proficient in any or several of the classifications in the boil- ermaker trade, being riggers, welders, boilermakers , layer- outers, etc. Skills and competence in this category will vary. Men in the primary category are given preferential referral and there is no contention of discrimination in this respect. The contention is that Respondent has discriminated against nonmembers in the referral of men from the second- ary or manpower out-of-work lists. Sam Stoddard , a member of the Ironworkers Local Union in Casper, Wyoming, was in the Denver area in August of 1971. He signed Respondent 's secondary or man- power out-of-work list and obtained employment. He signed the list again on November 5, 1971 . From that date until April 3, 1972 , he received no referral for employment, although he reported in almost daily, except for two short periods of work he obtained through the Ironworkers Union : November 15 to 20,1971, and March 13 to 20,1972. On April 3, 1972, he was referred to a job by Respondent in Cheyenne, Wyoming, on a night shift , and worked for 4 1 All dates herein are in 1971 (November-December) and 1972 (January- June) unless otherwise specified. B. The Exclusive Hiring Arrangement Respondent and the employers listed above in paragraph I and other employers are parties to a collective-bargaining agreement containing the following exclusive hiring hall provisions: EXCLUSIVE REFERRAL OF MEN Section 1. Exclusive Referral (a) The Employer shall, under the terms of this Ap- pendix, request the Union to furnish all competent and qualified field construction boilermakers, boilermaker helpers and boilermaker apprentices. The Employer in requesting the Union to furnish such applicants, shall notify the Union either in writing or by telephone, stating the location, starting time, approximate dura- tion of the job, the type of work to be performed and the number of workmen required. (b) In the event the Union is unable to fill requisi- tion for applicants within forty-eight (48) hours, the Employer may employ applicants from any other avail- able source. Section 2. Registration The local union shall establish and maintain an ap- propriate registration facility for qualified construction boilermakers, helpers, and apprentices available for employment. Applicants shall be registered on the ap- propriate out-of-work list for each classification in the order of time and date of registration. Each applicant shall be required to furnish Such data, records, names of Employers and licenses as may be deemed necessary and each applicant shall complete such form or regis- tration as shall be submitted to him. Applicants shall also list any special skills that they possess. Applicants shall reconfirm their availability for job referral at least every two (2) weeks and be available by telephone within a reasonable time (four, hours) in or- der to maintain their place on the out-of-work list. Section 3. (Omitted, as it refers to category of boiler- makers not involved herein.) Section 4. Referral of Men Upon the request of the Employer for foremen , assis- tant foremen, boilermakers, boilermaker helpers of boilermaker apprentices, the Union shall immediately refer competent and qualified registrants to the Em- 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployer in sufficient number required , in the manner and under the conditions set forth in this Appendix, from the appropriate out-of-work list, on a first in, first out basis ; that is, the first name registered shall be the first name referred , provided that: 1. Request by the Employer for key men to act as foremen shall be honored without regard to the re- quested man's place on the out-of-work list. 2. Bona fide requests by the Employer for boiler- makers with speciallskills and abilities will be honored, and persons possessing such skills and abilities shall be referred in the order in which their names appear on the out-of-work list . The decision of the dispatching agent in referring such registrants is appealable to the Joint Referral Committee, as hereinafter provided. Section 5 . Nondiscriminatory Referral The Union and the Employer agree that the referral of construction boilermakers , helpers and apprentices shall be on the following basis: (a) Selection of applicants for referral shall be on a nondiscriminatory basis and in accordance with the President's Executive Order 10925, as amended, and Title VII of the Civil Rights Act of 1964 and shall not be based on or in any way affected by union member- ship , by-laws, rules , regulations , constitutional provi- sions , or any other aspect or obligation of union .membership, policies or requirements. (b) The Employer retains the right to reject any job applicant referred by the Union. (c) The Union and the Employer shall post in places where notices to all employees and applicants for em- ployment are customarily posted all provisions relating to the functioning of the referral provisions of this Ap- pendix. C. Respondent's Out-of-Work Lists and Referral Records At all times material herein , Respondent maintained an out-of-work book for its members and other persons who wished referral to employment through its hiring hall. This book is divided into sections-a section for men who are in the qualified or primary category , a section for men in the manpower or secondary category , and a section for shop men. - When job referral requests were received by Respondent, unemployed persons on the primary list were given first consideration for referral. This list also included men classi- fied as apprentice. During certain periods of time involved herein, the manpower list was separated into two lists-one for members of Respondent , and the other for persons who were not members of Respondent , called boomers. Included among the boomers were employees who were members of other locals of the Boilermakers Union and employees who were members of other unions such as the Ironworkers; most of these men were from other states and had tempo- rary residences in Colorado while seeking employment through Respondent. When an employer would call Respondent for workmen, a form called a job referral request was completed by an agent of Respondent showing the name and address of the employer, location of the job , date of order, reporting date, length of job, classifications of men ordered , and comments. It also had space for a listing of the men selected for dis- patch, a space for listing of those who refused referral and a space for listing of men who could not be contacted. When dispatched, a yellow form referred to as a work order was given to each employee . The fact that this has been done is usually noted on the job referral requests form by placing the initials "w.o." beside the name of each man referred ; however, this was not always done . Not all men thus referred were employed , as some failed welding tests that were given on some jobs. This fact was usually noted on the job referral request form , but not always. The persons in Respondent 's office who generally han-, died the referral requests and the selection of persons for referral were Business Agents Sam Hurst and Don Lacefield and Marie Carlson , a secretary. Carlson handled about 50 percent of the referrals, Lacefield about 35 percent and Hurst about 15 percent. Pasted in the front of the out-of-work book was a copy of "rules" governing the operation of the referral system. They are quoted , as follows: A. When out of work, appear in person to register unless your permanent address is outside a 30 mile radius from the office . Availability for work must be reconfirmed every two weeks . You must be available on call within a four (4) hour period. If you cannot be contacted for three successive job, your name will be removed from the list . You must then register again. B. A job may not be refused for other than personal or compelling reasons such as sickness in the immedi- ate family or vacations, which must be stated on list before being called. For these reasons, you will not gain on the list, if you are five down you will remain five down until you contact the office . You must sign the vacation and sick list with date and time when you are not available for work and the same when you are available. C. On tanks: A man will not lose his place on the list, does not have to take job, and will move up on list if working on tanks. ' D. A man with less than eighty (80) hours of work will advance on list , after he has accumulated eighty (80) hours will go to bottom of list. E. If a man quits a job , he will go to the bottom of the list. F. If a man takes a work order and does not report to job at starting time, he must call the office within four (4) hours or he will go to bottom of list. G. If discharged, a man will go to bottom of list If discharged from two successive jobs, for just and suffi- cient cause, he will be removed from list for three (3) months. These rules were not strictly followed . Carlson testified that tley did not remove a man's name from the list for failing Lo report in every 2 weeks, until they tried to call him for employment and could not locate him . Also the keeping of the out-of-work lists and the completion of the job refer- ral requests left much to be desired . Often the dates of sign-in is not shown. The reasons for scratching through a name is not shown. The spaces on the job referral request forms to show names of men who could not be contacted BOILERMAKERS , LOCAL 101 33 was seldom completed, and other spaces on the forms were not always completed. A checkmark under "length of job" indicated a job of 2 weeks or longer. Periodically, the out-of-work lists were replaced with new lists . As time passed and many referrals made, the out-of- work lists would have many names scratched out, to where it was difficult to use the list. A new list would be started by the typing of all names of men from the old list that had not been scratched through. Thereafter, until a new list was again started, men would sign their names in the next avail- able spaces below the typed names. The need to start a new list arose more frequently in the handling of the qualified or primary list, as these were the men most frequently referred. The primary or qualified list was retyped on November 8, 1971, January 25, 1972, February 29, 1972, March 17, 1972, April 5,1972, and June 1, 1972. The manpower out-of- work list was retyped on November 9, 1971, Aprils, 1972, and June 1, 1972. When the manpower list was retyped on November 9, 1971, the names of unreferred members of Respondent were listed first and the names of unreferred boomers were listed next. This was pursuant to instructions given by Business Agent Hurst to secretary Carlson. From November 9, 1971, to April 5, 1972, persons seeking em- ployment, both members of Respondent and boomers, signed their names in the next available spaces below the typed names of boomers. In the spring of 1972, as work began to pick up, there was an influx of boomers into the Denver area seeking employ- ment. Over 40 boomers signed the list for employment dur- ing the period from March 20, 1972, through April 3, 1972; many of these gave telephone numbers outside the Denver area and in some instances, outside the State of Colorado. On April 5, 1972, Respondent started a new list for men "in The Denver area." This list was exclusively for nonmembers or boomers. On the boomer list started Aprils, 1972, there was no typing of names of men who had signed previous to this date. Some of the boomers who had signed the out-of- work list prior to this date were called and told that they must resign; others, no doubt, discovered this fact when they returned to the union hall seeking employment. On April 5, 1972, another list was set up by Respondent for its members. This list began with the typing of the names of members of Respondent from the existing list who had not been referred. There are 11 names typed on this list. Following the typing of these names on April 5, 1972, mem- bers of Respondent seeking employment through the man- power list signed their names on this list in the next available spaces.2 2 This list of union members is not dated for those signing in before May 15, and there is some question as to when it was typed and when it was first used. I find that it was typed on April 5, 1972, based primarily on the fact that on this date a new and exclusive boomer list was started for persons in the secondary or manpower category, and the testimony that the manpower list that existed prior to April 5, 1972, was removed from the out-of-work book and placed on a filing cabinet in Respondent 's office and was no longer used except to check on telephone numbers of persons on the current lists. Furthermore, B. A. Lacefield testified that sometime in April 1972 B. A. Burst decided to keep separate lists. The counsel for General Counsel contends that there are missing pages in the manpower list covering the period from November 9 to April 5, particu- larly at the end of the list and Barbara Pipes expressed the same opinion- even suggesting-that about. 10 pages are missing; but an examination of the The separation of the lists was pursuant to instructions from Business Agent Hurst who stated to Pipes that "if we split the secondary list and put the 101 men on one list and the boomers on another list, since we have such an overload of people, it will be easier to keep track of our own men." On June 1, 1972, the manpower lists were retyped-one list for members of Respondent and another list for boom- ers. Each list began with a typing of the names of 101 members or boomers, respectively, whose names had not been lined through on the existing list. Following June 1, the members of Respondent signed the 101 list and boomers signed the boomer list in the next available spaces. D. Testimony of Secretary Barbara Pipes Barbara Pipes was employed by Respondent as an office secretary for a little over 2 years; she was terminated on July 14, 1972. Pipes worked at a desk directly behind that of Marie Carlson. They were the only two persons in the outer office. Business Agents Hurst and Lacefield occupied a sep- arate office. It was not one of Pipes' duties to handle the selection of men for referrals to jobs, but she was asked on occasion to call and notify men of referrals and was given a list of names for this purpose. She retyped the out-of-work lists on June 1, 1972. From May 20 to June 4, Carlson was on vacation; during this period Pipes handled the referrals of men on four orders. She testified that in selecting men for these referrals she "went directly down the list, first name I came to, if they wanted the job they got the job according to the way the orders came in, with the exception of the one order," on which all but one man was requested by name; that she used only the 101 manpower list because the prima- ry list was clean; she did not exhaust the names on the 101 list, therefore she did not even look at the boomer list, except for the boomers requested by name on the one order. She testified that "you take one list at a time until they're cleared is the way you're supposed to do it"; that is the way everybody else did it." Her instructions were "to go straight down the list when I dispatched, if I ever had to dispatch"; and "take care of our own men first and then we'll worry about boomers." She was told this by Business Agent Hurst., During the vacation period of Carlson from May 20 to June 4, 10 orders or job referral requests were received by Respondent. The four that Pipes handled and a review of the out-of-work lists for that period are as follows: On May 24, 1972, at 3 p.m., Pipes received a request from State, Inc., for one boilermaker to report to work on May 25, 1972, for a job of approximately 3 weeks. She dispatched Monty Steele, a member of Respondent, who signed the 101 out-of-work list on May 19, 1972. As previously mentioned, Pipes testified that in selecting men for dispatch, she went right down the list. A review of documents does not support this contention . The last dated entry on the November 9 to April 5 list is April 3, 1972; the first date on the new list is April 5, 1972. On April 3, 8 persons signed , 14 or 15 signed on April 5, and most of these were resigners . If any signed on April 4, the old list was abandoned after April 4 and the new April 5 list controlled referrals; thus, if any persons signed in on April 4 and if there were a page missing for that date, it would have little if any significance to the issues and/or remedy involved herein. I am satisfied that there is in evidence all of the manpower out-of-work records in the possession of Respondent and that there has been no intent to conceal or lose records. 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the out-of-work lists, however, shows that on the 101 list there are seven or eight names ahead of.that of Monty Steele which are not scratched through. There is no notation or explanation on the records themselves to explain the cir- cumstances or reasons for the skipping of these names. But, Pipes explained from her recollection that the skipped em- ployees could either not be contacted or were being consid- ered for shop jobs, or were out of town; that one skipped employee, Les Rogers, was a boomer and inadvertently in- cluded on the 101 out-of-work list. Although Pipes testified that the primary or qualified list was "clean," yet it contains names that are not scratched out, and there is no explanation for the skipping of these names. Since there is no notation beside some names of vacation or illness or assignment to a "tank" job, it might be assumed that they were employed on jobs of less than 80 hours and therefore would not lose their places on the out-of-work list; yet a review of the job referral records and dispatch slips for the period of May 5 to May 24 fails to show any of them to have been dispatched to such jobs or any job. The un- scratched out names on the primary list with no explanation are the following: Joe Poison, signed in May 5 Carl Schaefer, signed in May 2 Bill Talbot, signed in April 6 Darrel Steele, signed in April 6 Bill Parker, signed in before April 5 The following unscratched out names on the primary list had explanations as follows: Richard Hardesty, signed in May 22-No explana- tion,on the out-of-work list, but job referral request of May 23 shows that he could not be contacted. Bill Maurice, signed in May 5-vacation. Paul Amos, signed in May 3-sick, S.E.H. Pete Phillips,_ signed in April 28-32 hours with B. & W. Also, job referral request received May 9 states that he could not be contacted and was out of town. Bill Thornton, signed in April 27-vacation. James Henley, signed in before April 5-telephone number wrong. Amos Sinley, signed in before April 5-on tank job. The above reference to the primary out-of-work list is set forth as an example of the incompleteness of the referral records and the futility of using them to determine accurate- ly one's eligibility for referral. The primary list was used for this example as there is no contention of discrimination in its use. At the time Pipes selected Monty Steele for dispatch on May 24, the boomer out-of-work list contained the names of a number of men who had signed the list prior to Monty Steele and who had not been dispatched. But Pipes made no effort to contact any of these men for this job-because the 101 manpower list had not been exhausted. On June 1, 1972, Pipes received a request for workmen from Babcock and Wilcox in Colorado Springs. The request was for five certified heliarc welder and two riggers. The request order shows that the employer specifically asked for four persons by name; but Pipes testified that all were spe- cifically requested with the exception of Larry Veggeberg. The union procedure permits the dispatch of one specifical- ly requested, irrespective of his position on the out-of-work list. Pipes selected Larry Veggeberg as one of the riggers. Veggeberg signed the 101 out-of-work list on May 19, 1972, the same day that Monty Steele signed the out-of-work list. On June 1, 1972, there were names of other men who had signed the 101 list prior to, Larry Veggeberg and are not shown to have been dispatched. There is no explanation on any of the records of the Union to explain why these names were skipped. Thus, as previously mentioned, the records alone do not reveal the basis for the selection or for the skipping of men for referral. Of course, men on the out-of- work list who are not qualified for classifications requested may be skipped. On June 2, Pipes handled an order from Stearns-Roger Company for three boilermakers and two high riggers for its Cherokee job in Denver, Colorado. The job was estimated for 2 weeks or more. On the order form, Pipes shows that she was unable to contact Pete Phillips, Carl Schafer, Fred Clark, Albert Page, and Jerome Hein. She dispatched James R. Rainer, Joe Polson, and Tony Lopez for the boilermakers and Richard Hardesty and Jim Martin for the high riggers. All were from the primary list with the exception of Martin; Martin, a 101 member, signed the 101 out-of-work list on May 22. Pipes testified that the reason she picked Martin for this order and skipped a number of other names on the 101 out-of-work list was because the order was for high riggers; she knew Martin worked high; therefore she selected him for the job. Of the men Pipes was unable to contact, the first three were on the qualified list and the other two were among the first names on the 101 out-of-work list. Also on June 2, Pipes handled another request from Stearns-Roger for four boilermakers for a joh of 1 week at the Shadia Chemical Company. Owen Funk, Henry Wyatt, Frank Tammen, and Cliff Robbins were selected for the job. Pipes testified that the request was for men that had previously worked for Stearns-Roger on this job. Pipes found the names of Funk, Wyatt, and Tammen, all 101 members, who had previously worked on this job. Business Agent Hurst selected the fourth man, Robbins, from the 101 out-of-work list. E. Respondent's Refusals to Refer Sam Stoddard As previously mentioned, Stoddard signed Respondent's out-of-work list on November 5, 1971, and was not referred to employment until April 3, 1972. Stoddard checked with Respondent for employment repeatedly during this period except for two periods when he obtained work through the Ironworkers Union. From November 15 to 20, 1971, and from March 13 to 20, 1972, he was employed on jobs he obtained through the Ironworkers Union. Stoddard was qualified to do the work of a certified arc welder, having passed a test in October 1971; he was also qualified for the classifications of boilermaker and rigger. He was not a heliarc or inert gas welder, a layerouter, a tube roller, a rubber liner, or a high rigger. Some employers required arc welders to pass special tests which Stoddard may or may not have been qualified to perform. Although Stoddard is a rigger, he is not shown to have had any experi- ence as a high rigger, one who works 200 or more feet above the ground. Some men specialize in this classification. BOILERMAKERS , LOCAL 101 35 I have elsewhere indicated that the records of Respon- dent on their face do not explain the skipping of names in the referral of men and are incomplete in this respect. How- ever, Stoddard testified as to his availability for referral, and as to him there is no need to speculate on matters left unresolved by the incompleteness and inadequacies of Respondent's referral records. Respondent's records show that between November 5, 1971, and April 3, 1972, Respon- dent referred the following men who signed the manpower out-of-work list after Stoddard to jobs that Stoddard was qualified to perform.3 (The following list does not include names on the job referral request forms that are not shown to have been given a work order, "w.o.," for the job, al- though as I have elsewhere noted, the absence of the initials "w.o." beside a name does not always mean the man was not referred.) The Period of November 5 to April 3 (1) On January 14, Respondent received a request from Stearns-Roger Company to send two foremen, eight boiler- makers, and four arc welders to a job in Grand Valley, Colorado, to report on January 17. Either on the same day or a day or so later, another request was received for four more boilermakers and four more arc welders. Included among the men referred to this job were the following men who signed the manpower out-of-work list after Stoddard: Cliff Robbins, a 101 member Archie Molton, a boomer and member of the Na- tional Tank Maintenance Union of the Boilermakers Union Jim Martin, a 101 member Joe Smith, a 101 member Henry Wyatt, a 101 member. All others referred to this job were either from the primary list or had signed the manpower out-of-work list before Stoddard. The name of Archie Molton is listed four spaces below that of Stoddard in the typed names of boomers on the manpower out-of-work list. On the same referral request form appears the name of Oscar Molton, who was referred from the primary list. Regarding this job in Grand Valley, Stoddard and anoth- er ironworker, Arnold Smith, talked with Business Agent Lacefield about referrals. Lacefield told them to come back later in the morning and get work orders for this job. They did so and then were told by Marie Carlson that she had sent' boilermakers to the job. Stoddard told her, "I thought we were supposed to be next on the list. Didn't Lacefield tell you?" She replied that Business Agent Hurst told her to send boilermakers. Yet I note that one boomer was included in the dispatch. 3 As previously mentioned, the November 9, 1971, to April 5, 1972, man- power out-of-work list contains first the typed names of 101 members who signed in before November 9, 1971; next the typed names of boomers who signed in before November 9, 1971; and thereafter the names of members and boomers are mixed in order of sign in. The typed names, except for that of Dale Simmering and Bobby Cooper, are not dated; these are dated No- vember 8. Therefore, all typed names of 101 members that appear after these names signed in after November 8. Stoddard testified that he signed in on November 5; all boomers whose names appear after his were signed after that date. As to whether or not Arnold Smith was bypassed in the selection of men for referral to this job cannot be ascer- tained from the records in view of the absence of dates of sign in. All typed names are necessarily of men who signed the list prior to November 9, 1971. All men from the man- power list dispatched to this job were men whose names were typed. Smith's name is near the end of the typed boom- er names . His name is well below that of Archie Molton. Smith did not testify. (2) On January 19, 1972, Respondent received a request from Chicago Bridge & Iron Company for three arc welders on a job 4 miles south of Trinidad, Colorado. On a previous request from this company the request had been for welders with current papers issued by this company; this require- ment does not appear on this job referral request. Two of the three men dispatched, Mahlon Rade and Doug White, signed the manpower out-of-work list after Stoddard. Both are members of Respondent. White signed the out-of-work list on November 8 or 9; Rade signed the list on December 22. The other man dispatched, Dorman Kadmas, was from the primary list, although he inadvertently signed the man- power list on December 22, 1971. Although the job with Chicago Bridge & Iron Company was estimated for 2 to 3 weeks, yet the name of Mahlon Rade is not scratched through on the out-of-work list, which is further indicia of the unreliability of Respondent's re- cords in determining one's position on the out-of-work list. (3) On January 19, 1972, Respondent received a request from Stearns-Roger for two arc welders to take a test for employment in Pueblo, Colorado; employment estimated for 1 year. Respondent dispatched a man from the primary list and Gary Davis, a member of Local 101, who signed the manpower out-of-work list on November 19, 1971. (4) On February 17, 1972, Lower and Cool Company requested a foreman , a boilermaker, and an arc welder for a job in Glenrock, Wyoming. Respondent 's practice is to send boomers who reside in Wyoming to jobs in that state. Victor Clanin, a boomer who signed the manpower out-of- work list on December 27, 1971, was so dispatched. Howev- er, for the other employee, Respondent dispatched Mark Nagel, a member of Local 101 who signed the man power out-of-work list on November 12, 1971, 7 days after Stod- dard. (5) On February 28, 1972, Respondent dispatched Doug- las White to a job in Pueblo, Colorado. White, a 101 mem- ber, signed the out-of-work list on November 8 or 9, 1971. (6) On February 29, 1972, at 8:50 a.m., Respondent re- ceived a request from Taylor Construction Company for one certified arc welder to be dispatched as soon as possible. Dale Simmering, a member of Local 101, was dispatched. Simmering had signed the out-of-work list on November 8, 1971; he had been dispatched on December 27, 1971, to a job with Chicago Bridge & Iron Company and was still on this job on January 19, 1972, on which date he is shown on a request form from this company as a foreman. According to the rules his name signed in November 8 should have been removed from the list. He did not sign the out-of-work list again prior to his dispatch to Taylor Construction Com- pany. In view of the fact that the request was for a welder to report "as soon as possible," it is possible that he was there on the spot when the order came in. 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (7) Pursuant to a request received-March 1, 1972, from Fluor Utah Company for two boilermakers, Respondent dispatched a man from its primary list and Jerry Lee, a 101 member who signed the manpower out-of-work list on No- vember 22, 1971. (8) Pursuant to a request received March 8, 1972, from Ramsey Engineering Company for a foreman and three boilermakers, Respondent dispatched Mark Nagel, a 101 member who signed the manpower out-of-work list on No- vember 12, 1971. (Nagel had previously been dispatched on February 17 to a job in Wyoming.) (9) Pursuant to a request received March 9, 1972, from Fluor Utah Company for two boilermakers, Respondent dispatched Nathan Younger, a 101 member who signed the manpower out-of-work list on January 26, 1972. (10) Pursuant to a request received March 10, 1972, from Hermit Mfg. Co. for one certified are welder to take a test, the request form shows that work orders were given to four men, two of whom were below Stoddard on the manpower out-of-work list: Edwin Penna, a 101 member who signed the list on March 1, 1972, and Mark Nagel, a 101 member who signed it on November 12, 1971. (Another illustration of the unreliability of these records of Respondent is that Nagel was also shown to have been dispatched to Ramsey Engineering Company-per request form received March 8.) As previously mentioned, Stoddard was employed from March 13 to 20, 1972, therefore not available for dispatch through Respondent's hiring hall during this period. The job request forms, however, do not record any effort to contact Stoddard. During this period, Respondent dispatched two 101 members (Lloyd Seaton and Matt Toniolli, Seaton twice) and four boomers (John Komar, Larry Maddox, Robert Wieneche, and Joe Williamson), all of whom signed the manpower out-of-work list after Stoddard. (11) On March 22, 1972, Respondent dispatched Jack Harkness, a 101 member, to the Stearns-Roger job in Pueb- lo, Colorado. Harkness signed the out-of-work list March 7, 1972. (12) On March 22, 1972, Respondent received a request from Certified Welding Company for 35 boilermakers for work at a Husky Oil Refinery in Cheyenne, Wyoming, 24 of them for night work. Over half of the men dispatched were below Stoddard on the manpower out-of-work list or were not on any out-of-work list, as follows: 101 members: David Gray, signed list February 28, 1972 Merlin Woerpel, not on list prior to this job George Cummings, not on list prior to this job Mike, Cassados, not on list prior to this job Don Rivera, signed list March 2, 1972. boomers: Cliff Knight, not on list prior to this job.' Jim Faulkner, not on list prior to this job Ed Haddix, not on list prior to this job Dick Stanley, not on list prior to this job Bill Allinger, not on list prior to this job Robert Huff, signed list March 9, 1972 Victor Allinger, signed list March 20, 1972 Richard Tobias, below Stoddard on list Arnold Smith, below Stoddard on list Pat Wieneche, signed list March 7, 1972 Angelo Ramirez , below Stoddard on list Phil Gannon, below Stoddard on list. There is no showing on Respondent's referral records that any effort was made to contact Stoddard. Also it could be that he had not reported in again to Respondent's hall after he completed his job on March 13 to 20. Many boomers were dispatched to this job; however, they are all listed for assignment to the night jobs. On the other hand, these night jobs were 10-hour jobs and some men prefer such jobs be- cause of the increased pay. This job was estimated for 3 weeks. (13) On March 30, 1972, Respondent dispatched Henry Wyatt and Wilt Stafford, 101 members, to jobs with Refrac- tory Engineering Company at the Husky Oil Refinery at Cheyenne, Wyoming. Wyatt signed the out-of-work list on November 8 or 9, 1971; Stafford signed the list between November 12 and 19, 1972. (14) About April 3, 1972, Respondent received another request for men to be dispatched to the Husky Oil Refinery in Cheyenne, Wyoming; this time from Refractory Compa- ny. Fifteen men were dispatched and Stoddard was includ- ed among them. The Period of April 7 to May 3 Stoddard's employment with Refractory in Cheyenne, Wyoming, lasted 4 days. On his return to Denver, Colorado, he again signed the manpower out-of-work list, this time the boomer out-of-work list, as the lists were separated on April 5. The date he signed was April 7. His next referral was on May 3, 1972. Between April 7 and May 3, Respondent referred approximately 29 men from the primary list, 49 men from the 101 manpower list, and,23 from the boomer manpower list. The, 101 manpower list does not show dates of sign-in during this period. The first sign-in dated is on May 15, 1972; therefore, there is no way of knowing how many signed in prior to Stoddard. Stoddard's name is 20th on the boomer out-of-work list; he signed in on April 7 and the list began on April 5. On May 2, 3, and 4, 1972, Respondent received a large order for men from Ramsey Engineering Company for work at the Conoco Refinery in Denver, Colorado. Approx- imately 75 men, including Stoddard, were dispatched. This was a "turn-around" job at an oil refinery and was in the category of less desirable jobs. Respondent had a difficult time in securing enough men to fill the orders. Calls were made to Boilermaker locals in other states for men. The job Stoddard was referred to at the Husky Oil Refinery in Chey- enne, Wyoming, on April 3 was also a turn-around refinery job. The Ramsey job at the Conoco Refinery in Denver, Colo- rado, came to an end during May 17 to 19, 1972. As the men were terminated, they appeared in large numbers at Respondent's hiring hall to place their names on the out-of- work lists. Stoddard signed the boomer out-of-work list on May 19. Between that date and June 19, when he left the area for employment in Wyoming, obtained through an Ironworkers Union, Respondent dispatched the following 41 say "approximately" because some who are shown to have received work orders have their names lmed through ; names of others appear on the referral forms but are not shown to have received "work orders." BOILERMAKERS , LOCAL 101 men who signed the out-of-work list after Stoddard: The Period of May 19 to June 19 (1) On May 25, 1972 , Respondent dispatched H. D. Harris, a 10;member who'signed the 101 out-of-work list on May 22, to a job as certified arc welder with Ceco Com- pany- (2) On May 31, 1972, Respondent dispatched Doug White, a 101 member who signed the 101 out-of-work list on May 22, to a job as boilermaker with Stearns -Roger in Pueblo, Colorado. (3) On June 5, 1972, Respondent received a request from Stearns-Roger Company for five riggers and four welders for its job at the Comanche Power Plant in Pueblo , Colora- do. Of those dispatched, the following three 101 members and one boomer signed the out -of-work list after Stoddard: Wayne Huntley, signed 101 list May 23 H. D. Harris, signed 101 list May 22 Hosea Moore, signed 101 list May 23 Leo Mosier , signed boomer list May 22. Stoddard talked with Pipes and Carlson about referral to Stearns-Roger in Pueblo , Colorado, for one of these jobs. He particularly wanted to work there because he has a son living in Pueblo . He spoke to Pipes about the matter be- cause at the time Marie Carlson "was on vacation or some- where." The day that Carlson returned to the office, Stoddard asked her if the order for men for Stearns-Roger in Pueblo had come in . Pipes reminded Carlson that it had and that Carlson had filled it. Carlson then remembered that she had sent "five riggers and four welders" to this job. Stoddard said that he thought he was supposed to get to go down on that job. Carlson replied that she had sent mem- bers of the Boilermakers. Stoddard also testified that a few days later, he talked with Business Agents Hurst and Lacefield about being jumped over in the dispatch of men to this jobsite. He testified that Lacefield told him "he was sending members to that job. That I [Stoddard] wasn't a member . I was an Ironworker." Stoddard testified that he threatened to call the Boilermak- ers International office and to go to the NLRB. In the absence ' of corroboration of surrounding events, I cannot relate these two conversations-the one with Pipes and Carlson and the one with Lacefield and Hurst . It could be that Stoddard has confused or combined two separate events . He testified that the Pueblo job was in the latter part of April 1972 and that his conversation with Lacefield and Hurst occurred on May 1 . Yet Respondent's records show no referrals to Stearns -Roger in Pueblo in the latter part of April, and in fact not since an order for two welders was received on April 5. Also, Carlson was not on vacation until May 20 to June 4. She did dispatch five riggers and four welders to Stearns-Roger in Pueblo on June 5. So, it would appear that this is the job that Stoddard was seeking. But, the dispatch of the men for this job was made by Hurst; Lacefield was out of the office campaigning for the pending union election during these weeks . Lacefield was not on the Union's payroll from May 12 to June 14 and was in the office "very, very seldom" during that time . Stoddard did, however, file a charge against the Union on about May 1 or 2, 1972,' which was withdrawn shortly afterwards; so, 37 some conversation must have taken place about that date. Stoddard's charge filed June 12 sett"forth that he was re- fused referral "on or about May 1, 1972 and June 6, 1972." Lacefield did not testify regarding the conversation. I find that a conversation with Lacefield about a referral to the Stearns-Roger jobsite in Pueblo, Colorado, occurred on or about May 1, 1972; that Stoddard has another conversation with Carlson and Pipes in June regarding referral to Stearns-Roger., (4) Pursuant to a request received June 8 from Koppers Company for one arc welder , Respondent dispatched Mike Casados, a 101 member who signed the out-of-work list on May 22. (5) Pursuant to a request received June 9 from Pittsburg- Des Moines Steel Company for one are welder, Respondent dispatched Richard Whyte, a 101 member who signed the out-of-work list on June 1. (6) Pursuant to a request received June 12 from Refcon Industries for four arc welders, Respondent dispatched Robert Zahradra, a 101 member who signed the out-of- work list on May 24. (7) Pursuant to a request received some unspecified date shortly before June 19 from Stearns-Roger in Pueblo, Colo- rado, Respondent dispatched George Cummings, a 101 member who 'signed the out-of-work list on May 22. F. Conversation Between Lacefield and Funk Don Lacefield, assistant business agent for Respondent until June 1972, was nominated for position as business agent on May 12, 1972. He was off the Union 's payroll from that date until June 14. He spent his time electioneering from May 12 until the election on May 8, which he won. At some time in the latter part of June 1972, after the union election and after Stoddard had filed his charge against the Union (filed June 12), Lacefield and Owen Funk, a' member of Respondent , had a conversation with reference to Stoddard's charge. It is not clear which of the two first mentioned the unfair labor practice charge or the "trouble against the local" that Stoddard had started; but Funk asked Lacefield if Stoddard had or was causing any trouble. Lacefield replied that there would be no problem; that Stoddard was not a boilermaker but was an ironworker and should not have been allowed to sign the out-of-work list; that he would not win the case against the local. I do not credit Lacefield's denial that the conversation took place . Lacefield acknowledged that he had had several conversations with Funk , but primarily about the election; as to whether or not he had had a conversation with Funk after the election about Stoddard, he testified , "Not to my knowledge, no." G. Referrals of Richard Sciumbato and Other Ironworkers Sciumbato lives in the Denver area and is a member of Local 24 of the Ironworkers Union . It has been his practice for 4 or 5 years to go to the Ironworkers Hall in the early morning to check about employment and if none is avail- able through this union, he goes to the hiring hall of Respon- dent. He has received referrals through both of these unions without putting ,his name on any out-of-work list. In the 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spring of 1972, however, _ he placed his name on Respondent's out-of-work list, on at least two occasions. The first time his name appears on the list is May 3, 1972, of which date he signed the boomer out-of-work list. Immediately prior to this he had obtained a referral from Respondent to a job as a high rigger with Steams-Roger at its Comanche job in Pueblo. This was on March 31, 1972. His reporting date was April 3, 1972. He worked on this job until May 2, 1972. Then, on May 3, he signed Respondent's boomer out-of-work list. Pursuant to a job referral request received that day from Ramsey Engineering Co., Sciumbato was referred to a job with reporting date of May 3. He was on the same referral list as Sam Stoddard. He worked on this job until May 16. He again signed Respondent's boomer out-of-work list on May 17. Sciumbato was told there that there was no work. He then went to Casper, Wyoming, to see about getting work through the Ironworkers local there. While there he heard that the Ironworkers Union in Pueblo, Colorado, was referring men, so he went next to Pueblo. Through this union he obtained employment with State, Inc. at the Pueb- lo Steel Mill with reporting date of May 28. He worked on this job for 3 days. He was next referred to a job through Ironworkers Local 24 in Denver, Colorado, with reporting date of June 5. This job was in Platteville, Colorado, about 48 miles from Denver and lasted about 3 days. His next job was obtained through the Ironworkers, with reporting date of June 11. He worked on this job until about July 9. Then on July 20, he was referred to a job by the Ironworkers where he worked until August 3. Shortly thereafter he was referred to another job through the Ironworkers and was on this job at time of hearing. Sciumbato signed the out-of-work list of Respondent on May 17, 2 days before Stoddard and about 15 names ahead of Stoddard. Thus, those previously mentioned as having signed the list after Stoddard yet referred out ahead of him between May 19 and June 19, likewise signed the list after Sciumbato and were referred out ahead of him. But, Scium- bato was working during most of this time except from May 17 to 28. Yet, there is no testimony from Sciumbato or from any agent of Respondent or from the records of Respondent that any effort was made to contact him. His name is not lined out where he signed it on the list on May 17, nor is it lined out where retyped on June 1. It is possible that Respondent's business agents knew or surmised that Scium- bato was working during this time since he did not come by to inquire about employment. Arnold Smith is also an Ironworker whose name appears on Respondent's manpower out-of-work list. His name is on the list typed November 9, 1971. Records of Respondent show no referral of him until March 22, 1972. On this date Respondent referred 36 men to Certified Welding Company in Cheyenne, Wyoming, for work at the Husky Oil Refinery. Of those dispatched, 22 were members of Respondent and 14 were boomers. Smith's name on the typed page dated November 9, 1971, has a line drawn through it. In the absence of other explana- tion, it is concluded that this was because of his referral on March 22, 1972, to a job of over 2 weeks in duration. Like Stoddard, Smith's name was skipped in the referral of all who signed the out-of-work list after November 9,197 1, and were referred out between that date and March 22, 1972. Smith next signed the boomer out-of-work list on May 22. Apparently he called in and had Barbara Pipes put his name on the list, as her initials are beside his name. His name.is on the boomer list typed June 1. His name is not lined out and there is no record of any referral. Smith did not testify. There is no evidence of his availabil- ity for referral between November 9 and March 22 and between May 22 and thereafter, and there is no evidence as to what agents of Respondent knew or did not know about this matter. But it is clear that men who signed the out-of- work list after Smith were dispatched before him. Douglas Rock, another ironworker, signed Respondent's out-of-work list on December 23, 1971, and again on May 26, 1972. His first dispatch by Respondent was pursuant to an order received on June 20, 1972, to a job in Casper, Wyoming. When Rock signed the out-of-work list in De- cember 1971, the number he gave had an area code of 307, which is the area code for the State of Wyoming. His name is lined through where signed on November 1971, but not lined through where it appears on May 26, 1972. Marie Carlson testified that Rock was a certified arc welder and also qualified as an heliarc welder, but that Rock was not referred out or considered- for other referrals be- cause she assumed he was getting employment through the Ironworkers Union as he did not report in every 2 weeks to the Boilermakers Union. Although it is a rule of Respondent that an employee is supposed to check in at the union hall every 2 weeks in order to maintain his position on the out- of-work list, this rule has not been strictly adhered to. Respondent had requests for workmen in the State of Wyoming on quite a number of occasions between March 22 and April 10. There is no explanation in the record as to whether or not Rock was called about any of these jobs or whether he was available. In view of Respondent's policy of utilizing Wyoming men for Wyoming jobs, Rock would have been a logical selection for some of these jobs. The record shows that Respondent repeatedly referred boomers residing in Wyoming to jobs in that state. H. Respondent's Referral of Boomers During the months of December 1971 and January and February 1972, there were relatively few referrals by Re- spondent from its manpower list. During slack periods, re- ferrals were mainly from the primary list. From December 15 through 31, Respondent referred only one man from the manpower list. In January, 14 men were referred from the manpower list, including 1 boomer, Archie Molton. In Feb- ruary, 18 men were referred from the manpower list, includ- ing 5 boomers. Four of these were dispatched to a job in Glenrock, Wyoming, and one, Mike Padilla, was dispatched to a job in Pueblo, Colorado .5 In March 1972, Respondent dispatched 47 men from its manpower list, 18 of whom were boomers, dispatched to report as follows: 1 to job in Denver, Colorado, March 7 5 Oliver Padilla is general foreman on this job ; on another occasion he requested a relative, Bill Faucett, a son-in-law; it is likely that he requested Mike Padilla, although this fact does not appear from the referral records. BOILERMAKERS, LOCAL 101 39 3 to Pueblo, Colorado, March 15 14 to Cheyenne, Wyoming, March 27. In April 1972, Respondent dispatched 76 men from its manpower list, 29 of whom were boomers, dispatched to report as follows: 2 to Pueblo, Colorado, April 3 6 to Cheyenne, Wyoming, April 3, including Sam Stod- dard I to Colorado Springs, Colorado, April 5 1 requested by name to job at Douglas (state not shown), April 6 2 to Pueblo, Colorado, April 6 2 to Pueblo, Colorado, April 10 4 to Cheyenne, Wyoming, April 11 1 to Colorado Springs, Colorado, April 11 1 to Denver, Colorado, April 11 1 to Denver, Colorado, April 13 1 to Denver, Colorado, April 17 3 to Denver, Colorado, April 18, one of whom was requested 2 to Denver, Colorado, April 26 2 to Denver, Colorado, April 28 May 1972 was a very busy month for Respondent. A total of 158 men were dispatched from the manpower lists: 65 from the 101 list and 93 from the boomer list. During this month, Ramsey Engineering Company required a large number of workmen at its project at the Conoco Refinery. From May 1 to 10, Respondent dispatched 66 boomers and 27 members to this employer alone. Also, 11 boomers and 8 members were dispatched to another employer on the same project, Tray Installation Company. During this month, Respondent dispatched to various projects of Steams-Roger Company in the State of Colorado a total of seven boomers and nine 101 members, one boomer being requested by name. In the month of June 1972, Respondent dispatched a total of 53 men from the manpower list, 16 boomers and 37 members . Boomers were dispatched to Babcock and Wil- cox, most of whom, however, were requested by name; to Stearns-Roger in Pueblo; to State, Inc. in Portland, Colora- do; C. B. & I. in Casper, Wyoming. Of the five requested by C. B. & I., four were boomers and one was a member of Local 101. Conclusions Stoddard was repeatedly skipped in the referral of men to jobs, starting with January 14, 1972. He was told about January 14 by Carlson that she was told to send boilermak- ers to a job Stoddard had expected to go to; about May I he was told by Lacefield that he (Lacefield) was sending members to a job and that Stoddard was not a member. On June 5, he was told by secretary Carlson that she had sent members , as an explanation why he was not dispatched. Owen Funk was told in the latter part of June 1972 by Lacefield that Stoddard was not a boilermaker but was an ironworker and therefore should not have been allowed to sign Respondent's out-of-work list. On November 9,197 1, the names of men on the manpow- er out-of-work list were typed with the names of the 101 members being collected and placed at the top of the list. Thereafter and until April 5, when new and separate lists were set up, the boomers and members signed the same manpower list. But this was a slack period and during this period there was no change in Respondent's practice of giving preference to members for referral. During the period of December 15 to March 27, Respondent referred 53 men from its manpower list, of whom 8 were boomers. Four of these were sent to a job in Glenrock, Wyoming, and at least one other appears to have been specifically requested. Respondent points out in his brief that in the month of June 1972, there was a total of 53 referrals and 16 of these were boomers; that there was a total of 43 names on the 101 out-of-work list on June 1, which appears to mean that this list was not exhausted prior to dispatch of boomers. But all but 4 of the 16 boomers dispatched were either requested by name or were sent to a job in Wyoming, as follows: For the Babcock and Wilcox job on June 5, Pipes testified that the six boomers dispatched were requested by name. For the Babcock and Wilcox job on June 7, the two boomers dis- patched were requested by name. On June 15 and,21, four boomers were dispatched to a job with C. B. & I. in Cas- per, Wyoming. Except for Stoddard's periods of employment, he was available for referral between November 5 and June 19. Since June 19, he has been employed out of the State of Colorado and has not been available for referral and has not resigned the out-of-work list. The two jobs to which he was referred, the Refractory Engineering job at the Husky Oil Refinery in Cheyenne, Wyoming, and the Ramsey Engi- neering job in Denver, Colorado, were both large jobs and were "turn-around" refinery jobs, so-called "dirty" jobs. Thus, an examination of Respondent's records of refer- rals, and the treatment of Stoddard as an example, clearly supports the testimony of secretaryPipes that Respondent's practice in the operation of its hiring hall was to refer first from the qualified list, then the 101 manpower list, and then the boomer list. She had been instructed to "take care of our own men first." I find that Respondent operated its hiring hall at all times since December 12, 1971, in a manner that discriminated against nonmembers in the referral of men to jobs. Most of the referral of boomers were to jobs for which they had been requested by name, to jobs in the State of Wyoming, or large jobs when many workmen were needed at one time. There appear to be exceptions to this, however, and particularly during the busy months of April and May 1972; but the unexplained exceptions are in no way suffi- cient to negate the conclusions as to the general practice of discrimination against nonmembers. CONCLUSIONS OF LAW 1. The employers named herein are employers engaged in commerce or activities affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By giving preference to its members over Sam Stod- dard and other nonmembers in the referral of men to em- ployment under its exclusiving hiring hall arrangement, Respondent has engaged in an unfair labor practice viola- 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive of Sections 8(b)(1)(A) and (2) and 2(6) and (7) of the Act. THE REMEDY In order to effectuate the policies of the Act, I recom- mend that Respondent be ordered to cease and desist from the unfair labor practice found and that it be ordered to operate its exclusive hiring arrangement in a nondiscrimina- tory manner; that it maintain records which accurately and fully reflect the basis on which each referral is made and that such records be made available for inspection by the Board's Regional Director or his agent. I further recommend that Respondent make whole Sam Stoddard and all nonmember applicants for employment for any loss of earnings they may have suffered by reason of Respondent's discriminatory referral practice from De- cember 12, 1971, until such time as its discriminatory prac- tice ceases . Such loss of earnings shall be computed in accordance with the methods prescribed in F. W. Wool- worth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. As to how many or which ones of the boomers were injured by Respondent's discriminatory practice cannot be ascertained from an examination of Respondent's records. As testified to by Pipes and acknowledged by counsel for Respondent in his brief and apparent from the documents themselves, the operation of the out-of-work lists was a "pretty sloppy operation." Notations were not always made to indicate a man's unavailability due to sickness or vaca- tion, nor were notations made to show short periods of - unavailability where a man was assigned to short jobs. When names were scratched out, the reasons for doing so were not shown. The records do not always show, when Respondent's agent was "unable to contact" a man for referral. It is certain that many boomers, particularly when jobs through Respondent were scarce, did not linger in the Denver area. There is no indication from the records wheth- er or not names of such men were removed from the lists. Some of the boomers did not leave telephone numbers; others gave out-of-state numbers. The boomer out-of-work list shows, for example, that between May 9 and 15, about 15 men signed the list; only 2 are scratched out. Carlson expressed the opinion that four of them left the area when employment was not immedi- ately available, and another one, W. H. Henderson, left the area after serving a jail-term. Yet these names have not been lined out on either the original sign-in sheets or on the sheets typed on June 1. Only boomers Stoddard and Sciumbato testified,as to their availability. Sciumbato was unavailable for referral most of the time because of gainful employment. This does not mean that he was not discriminatorily skipped in refer- ring men to jobs; it means that while he was employed he had no wage losses by such discriminatory practice. All boomers whose names appear on Respondent's manpower out-of-work list were subjected to Respondent's. discrimina- tory practices, and those injured, should be made whole. However, the mere fact that Respondent's records show one not to have been referred or to have been skipped is not a sufficient basis for a determination of loss of wages. It must be show that he was available and qualified for the job-The, Board ordered ; a similar remedy in International Longshoremen's and Warehousemen's Union, Local No. 13 (Pacific Maritime Assn.), 192 NLRB 260. In the two following cases a broad make-whole order was not included, but I believe they are distinguishable. In the case of Local No. 851, International Longshoremen's Associa- tion (West Gulf Maritime Assn.), 194 NLRB 1027, the Board limited loss of wages to the charging parties only ,and did not extent it to "all other applicants for employment," on the basis that "The record does not reveal that any identifia- ble members of Local 329 other than the Charging Parties at any time applied for classification cards and were denied the same or were in any other manner discriminated against." In the instant case all boomers who signed, the out-of-work list thereby "applied" for referral. Whether one was available for referral on a particular date and therefore denied referral on that occasion is a matter for compliance. Respondent should not escape liability for its unfair labor practice of maintaining a discriminatory referral practice for the absence of proof of each and every instance- of refusal to refer. In the Board's decision in Pacific Maritime Association, 184 NLRB 312, involving a discriminatory referral practice, the General Counsel sought recovery of wages as a remedy for only 10 persons from a casual list of approximately 580 men. The Board's make-whole order was limited to this group, and one of these was eliminated as there was no evidence of his availability. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER6 Respondent, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Discriminating in favor of its members and against nonmembers in the referral of men under its exclusive hiring hall arrangement. (b) In any other manner restraining or coercing non- members in the exercise of their rights as employees under Section 7 of the Act. 2. Take the following affirmative actions: (a) Operate its exclusive referral arrangement in a non- discriminatory manner. (b) Maintain records which accurately and fully reflect the basis on which each referral is made. (c) Upon request of the Regional Director for Region 27, or his agents, make available for inspection at all reasonable times, all its records relating to the operation of its exclusive hiring hall arrangement. (d) Make whole Sam Stoddard and any and"all,appli- cants for employment for any loss of earnings they may 6 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 fiiidmgs, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. BOILERMAKERS , LOCAL 101 have suffered from December 12; 1971, by Respondent's discriminatory operation of its exclusive hiring hall arrange- ment, to the extent and in the manner set forth in the section entitled, "The Remedy." (e) Preserve and, upon request, make available to the Board or its agent for examination and copying, all docu- ments, records, and data necessary to compute and analyze the amount of backpay due under the terms of this Order. (f) Post in conspicuous places at its business offices and meeting halls, including all places where notices to its mem- bers are customarily posted, copies of the attached notice marked "Appendix." Copies of said notice, to be furnished by the Regional Director for Region 27, shall, after being duly signed by an authorized representative of Respondent, be posted upon receipt-thereof and be maintained for 60 consecutive days. Reasonable steps shall be taken by Re- spondent to insure that such notices are not altered, de- faced, or covered by any other material. (g) Notify the Regional Director for Region 27, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 7 In the event that the Board's 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 Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a trial, that we violated Federal Law by discrimi- 41 nating against nonmembers of this Union in the opera- tion of our exclusive hiring hall arrangement, we here- by notify you that: WE WILL NOT discriminate in favor of our members and against nonmembers in the referral of men for employment in the operation of our exclusive hiring hall arrangement with employers who are parties to such arrangement. WE WILL keep records which will accurately and fully disclose the basis on which each referral is made, and these will be available for inspection at all reasonable times, upon request, by the Regional Director of the National Labor Relations Board. WE WILL make whole Sam Stoddard and any and all applicants for employment for any loss of earnings they may have suffered from December 12, 1971, by the discriminatory operations of our hiring hall. Dated By INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACK. SMITHS, FORGERS AND HELPERS, LOCAL 101 (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 provision may be directed to the Board's Office, U.S. Custom House, Room 260, 72l 19th Street, Denver, Colorado 80202, Telephone 303-837- 3551. Copy with citationCopy as parenthetical citation