Boilermakers, Local No. 169

National Labor Relations Board - Board Decisions

Feb 21, 1974

209 N.L.R.B. 140 (N.L.R.B. 1974)

140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Boilermakers, Iron
Shipbuilders, Blacksmiths , Forgers and Helpers
Local Lodge No . 169, AFL-CIO (Riley Stoker
Corporation) and Clayton M. Gerard. Case
7-CB-2812
February 21, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On September 25, 1973, Administrative Law Judge
John F. Corbley issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in reply to Respondent's exceptions and in
support of the Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,' and conclusions' of the Administrative
Law Judge only to the extent consistent herewith.
The Administrative Law Judge concluded that
Respondent violated Section 8(b)(1)(A) and (2) of
the Act by refusing to refer for employment the
complainant herein because of his lack of member-
ship in Respondent's organization. He further con-
cluded that Respondent generally accorded prefer-
ence to its own members in referring applicants for
employment. As a remedy therefor, the Administra-
tive Law Judge recommended a broad and unusual
remedy.
Respondent excepts to the remedy portion of the
Administrative Law Judge 's Decision , contending
that it constitutes an unwarranted intrusion into the
operation of its referral procedure . We find merit in
this exception.
Contrary to the Administrative Law Judge, we
conclude that the record before us discloses no
persuasive evidence of a continuing or widespread
pattern of unlawful discrimination by Respondent
against nonmember referral applicants .3 Rather, the
facts here involve unlawful discrimination primarily
directed against a single complainant . As noted
above , however, the Administrative Law Judge
recommends a broad and , indeed , extraordinary
remedy for the violations committed herein. Thus,
his recommended remedy provides for close and
continuing supervision by the Regional Director over
Respondent 's operation of its exclusive referral
system . Furthermore , his recommended remedy
prescribes the very modus operandi to be used by
Respondent under its present referral procedure, as
well as under any exclusive referral provision which
may be contained in future collective -bargaining
agreements between Respondent and the area
employers. Absent the existence of any unusual
circumstances in the instant case , we find it unneces-
sary and inappropriate to impose upon Respondent a
remedy of such breadth .' Furthermore, in the
absence of sufficient evidence of a pattern of
unlawful discrimination by Respondent , we find no
justification for departing from the remedies we
customarily provide in cases of this kind , which we
conclude will adequately remedy the unfair labor
practices committed herein . Accordingly , we do not
adopt the Administrative Law Judge 's recommended
remedy, and we shall order Respondent to take the
action set forth below.
i In view of the Administrative Law Judge 's finding , with which we
concur, that the discrimination against the complainant herein was based on
his nonmembership in Local Lodge No 169, we find it unnecessary to pass
upon the General Counsel's reliance on Miranda Fuel Company, Inc., 140
NLRB 181, enforcement denied 326 1,.2d 172 (C A. 2, 1963)
We agree, for the reasons set forth by the Administrative Law Judge, that
Clarence Vincent was an agent of Respondent , but we find additional
support for this conclusion from the failure of Respondent to deny that
Vincent had been designated as its union steward at the'1ownsend and
Bottum jobsite, and the admission by Vincent that he had notified
Respondent when the boilermaker work on that Job had been completed, a
function which the record clearly shows had been performed in the past by
Respondent's stewards In these circumstances , we find that Vincent
possessed the usual broad authority of a union steward and , therefore, was
in fact Respondent 's agent for the purposes of our decision herein Cf. Local
825, International Union of Operating Lngineers , AFL-CIO (Morin Erection
Co, Inc ), 168 NLR B I, 3; Local 1016, United Brotherhood of Carpenters &
Joiners of America, AFL-CIO (Booher Lumber Co, Inc), 117 NLRB 1739,
enfd in relevant part 273 F 2d 686 (C A 2. 1960).
The Administrative Law Judge inadvertently referred to certain events as
having occurred during the year 1973, whereas the record clearly discloses
that they occurred during 1972. Accordingly, we hereby amend his Decision
at the following places by substituting "1972" for "1973": twice in the first
sentence of the 10th paragraph of sec. III, C, in the second sentence of the
third paragraph under "Concluding Findings", and twice in the first
sentence of the fourth paragraph under "Concluding Findings."
2 We find it unnecessary to pass upon the Administrative Law Judge's
conclusion with respect to the appropriateness of deferring the instant case
to arbitration under the principles of Collyer Insulated Wire, 192 NLRB 837,
in the absence of exceptions thereto Member Jenkins would not defer to
arbitration in any event.
The Administrative Law Judge , in reaching the conclusion that
Respondent generally gave preference in job referrals to its own members,
relies upon evidence showing that Respondent referred its own members in
greater numbers than nonmembers during a )-week period in November
1972, and during the month of March 1973 . We do not, however, consider
these periods as sufficiently representative to support such a conclusion,
particularly in light of the Administrative Law Judge 's additional finding
that Respondent referred nonmembers to 1,500 jobs while referring
members to only 515 jobs during the year immediately prior to the hearing
herein
4 Cf Local 138. International Union of Operating Engineers, AFL-CIO fJ
J Hagerty, Inc J v NLRB, 321 F 2d 130. 137-138 (C.A. 2, 1963),
Ironworkers Local Union No 290, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-CIO (Mid-States Steel
Erection Company), 184 NLRB 177; International Association of Bridge,
Structural and Ornamental Iron Workers, Local 350 (Atlantic County Building
Trades Employers A ssociation, et al), 164 N LRB 644, at in 1
209 NLRB No. 32
BOILERMAKERS , LOCAL NO. 169 141
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices, we shall order it to cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
We have found that the Respondent caused Riley
Stoker Corporation to deny employment to Clayton
M. Gerard because of his lack of membership in the
Respondent's organization. We shall therefore order
the Respondent to notify Riley Stoker Corporation.
in writing, and furnish copies to the above-named
individual, stating that it has no objection to
referring him to employment. We also order the
Respondent to make the above-named individual
whole for any loss of earnings he may have suffered
because he was discriminatorily denied referral for
employment beginning with the Riley Stoker job on
November 3, 1972, until his referral on May 3, 1973,
by payment to him of the sum of money he would
have earned during this period, less net earnings, if
any, during such period, to be computed in accord-
ance with the formula set forth in F. W. Woolworth
Company, 90 NLRB 289, together with interest
thereon at the rate of 6 percent per annum as set
forth in Isis Plumbing & Heating Co., 138 NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
International Brotherhood of Boilermakers. Iron
Shipbuilders, Blacksmiths, Forgers and Helpers
Local Lodge No. 169, AFL-CIO, Detroit, Michigan.
its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Discriminating against Clayton M. Gerard, or
any other applicant, by refusing to refer him to work
available under its exclusive referral procedure, or
otherwise discriminating against him, because of his
lack of membership in Respondent Local Lodge No.
169.
(b) Causing or attempting to cause Riley Stoker
Corporation to deny employment for, or otherwise
discriminate against, the above-named individual, or
any other applicant for referral, because he is not a
member of Respondent Local Lodge No. 169.
(c) In any like or related manner restraining or
coercing referral applicants in the exercise of their
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Notify Riley Stoker Corporation and Clayton
M. Gerard, in writing, that the Respondent has no
objections to referring him for employment; also
notify the above-named individual, in writing, that
henceforth it will not coerce or restrain him by
unlawfully infringing upon his rights guaranteed by
Section 7 of the Act.
(b) Make Clayton M. Gerard whole for any loss of
earnings he may have suffered by reason of the
discrimination against him as set forth in the section
of this Decision and Order entitled "The Remedy."
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its offices and meeting halls in Detroit
and Midland, Michigan, copies of the attached
notice marked "Appendix. Copies of said notice,
on forms provided by the Regional Director for
Region 7, after being duly signed by Respondent's
authorized representative, shall be posted by Res-
pondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to members are customarily posted. Reason-
able steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered
by any other material. The Respondent shall also
sign copies of the notice which the Regional Director
shall make available for posting by Riley Stoker
Corporation, if it be willing.
(e) Notify the Regional Director for Region 7, in
writing. within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
5 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board " shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board -
APPENDIX
No i IC E To MEMBERS
POSTED BY ORDER OF TILE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WL WILL No'l refuse to refer Clayton M.
Gerard for work available under our exclusive
referral procedure, or otherwise discriminate
against him, or any other referral applicant,
because of his lack of membership in Local Lodge
No. 169.
WE WILL. NOT cause or attempt to cause Riley
Stoker Corporation to deny employment, or to
otherwise discriminate against the above-named
individual, or any other referral applicant, be-
cause he is not a member of Local Lodge No. 169.
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner
restrain or coerce referral applicants in the
exercise of their rights guaranteed them by
Section 7 of the Act.
WE WILL make whole the above-named indi-
vidual for any loss of earnings he may have
suffered by reason of our discrimination against
him.
INTI - RNATIONAL
BROTHERHOOD OF
BOILERMAKERS, IRON
SHIPBUILDERS.
BLACKSMITHS , FORGERS
AND HELPERS LOCAL
LODGE No 169,
AFL-CIO
(Labor Organization)
Dated By
(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 compli-
ance with its provisions may be directed to the
Board's Office, 500 Book Building. 1249 Washington
Boulevard , Detroit, Michigan 48226. Telephone
313-226-3200.
DECISION
STATEMENT OF THE CASE
JOHN F. CORBLEY, Administrative Law Judge: A hearing
was held in this case on July 2, 3, 17, 18, and 19, 1973, at
Bay City, Michigan, pursuant to a charge filed by Clayton
M. Gerard , an individual (sometimes hereinafter referred
to as Gerard or the Charging Party) on April 12, 1973,
which was duly served on Respondent the same day and a
complaint and notice of hearing , issued by the Regional
Director for Region 7 of the National Labor Relations
Board, which was served on Respondent on June 1, 1973.
The complaint alleges that Respondent has, since on or
about November 6, 1972, failed and refused to refer the
Charging Party for boilermaker employee employment
opportunities at the Riley Stoker Corporation (hereinafter
Riley) jobsite at the Consumers Power Company project at
Essexville , Michigan, or to any other employer seeking
referral of boilermaker employees from Respondent
pursuant to the exclusive referral provisions of Respon-
dent's contract with Riley and other employers, because
the Charging Party is not a member of Respondent and
because Respondent was giving preference in such referrals
I At the hearing the complaint was amended to allege. and the answer
was amended to admit, that the only installation of Riley involved in this
to its own members. By these acts, the complaint further
alleges, Respondent has restrained and coerced and is
restraining and coercing , employees in the exercise of
rights guaranteed in Section 7 of the Act, and thereby did
engage in, and is engaging in, unfair labor practices
affecting commerce within the meaning of Sections
8(b)(l)(A) and 2(6) and (7) of the Act. By this same
conduct the complaint further alleges that Respondent has
caused or attempted to cause an employer to discriminate
against his employees in violation of Section 8(a)(3) of the
Act and thereby did engage in, and is engaging in. unfair
labor practices affecting commerce within the meaning of
Sections 8(b)(2) and 2(6) and (7) of the Act.
In its answer , which was also duly filed, Respondent
denied ,the commission of any unfair labor practices.[ The
answer also affirmatively avers that this matter should be
deferred to arbitration under the doctrine of the Board's
decision in Collyer Insulated Wire, 192 NLRB 837. More
will be said about this contention later in this decision.
For reasons, which will appear . I find and conclude that
Respondent refused to refer the Charging Party to
employers covered by Respondent 's exclusive hiring hall
for job opportunities in the boilermaker trade because the
Charging Party is not a member of Respondent and that
Respondent has thereby violated Section 8(b)(1)(A) and
8(b)(2) of the Act.
At the hearing, the General Counsel and the Respondent
were represented by counsel. All parties were given full
opportunity to examine and cross-examine witnesses, to
introduce evidence and to file briefs . The General Counsel
presented oral argument at the conclusion of the hearing,
the Respondent waived this opportunity, and briefs have
been filed by the General Counsel, received by me on
August 24, 1973, and by Respondent, received by me on
September 11, 1973.
Upon the entire record 2 in this case, including the briefs,
and from my observation of the witnesses , I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RILEY STOKER CORPORATION
Riley Stoker Corporation is, and has been at all times
material herein , a corporation duly organized under, and
existing by virtue of, the laws of the Commonwealth of
Massachusetts.
At all times material herein . Riley has maintained its
principal office and place of business at 9 Neponset Street
in the City of Worcester and Commonwealth of Massachu-
setts. Riley is, and has been at all times material herein,
engaged in the manufacture, sale, installation , and distrib-
ution of steam generating units and related products. Riley
installs said steam generating units for its customers at said
customers' locations situated in various states of the
United States including the State of Michigan. Riley's
installation site is located at the Karn plant of Consumer's
Power Company Essexville , Michigan , and is the only
facility of Riley involved in this proceeding.
During the year ending December 31, 1972 , which period
proceeding is the Karn, rather than the Weadock, plant
2 The transcript of the proceeding is hereby corrected
BOILERMAKERS , LOCAL NO. 169
is representative of its operations during all times material
hereto, Riley in the course and conduct of its business
operations , purchased and caused to be transported and
delivered at its Worcester , Massachusetts , plant , steel,
copper , and other goods and materials valued in excess of
$65 million of which goods and materials valued in excess
of $50 ,000 were transported and delivered to its plant in
Worcester , Massachusetts , directly from points outside the
Commonwealth of Massachusetts.
During the year ending December 31, 1972 , which period
is representative of its operations during all times material
herein , Riley, in the course and conduct of its business
operations , manufactured , sold and delivered at its
Worcester, Massachusetts , plant , products valued in excess
of $70 million of which products valued in excess of
$50,000 were shipped from said plant directly to points
located outside the Commonwealth of -Massachusetts.
Riley is now and has been at all times material herein an
employer engaged in commerce within the meaning of
Section 2 (2), (6), and (7) of the Act.3
II. RESPONDENT ; THE LABOR ORGANIZATION
INVOLVED
The complaint alleges, the answer admits, and I find that
International Brotherhood of Boilermakers, Iron Ship-
builders, Blacksmiths, Forgers and Helpers Local Lodge
No. 169, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
1I1. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Respondent's Offices, Officers and
Geographical Jurisdiction
The Respondent's hall is located in Dearborn, Michi-
gan.4 Respondent's geographical jurisdiction includes the
entire State of Michigan, except for three counties in its
southeast corner. This geographical jurisdiction is divided
into four numbered areas. Area III, principally here
involved, is served frDm an office located in Midland,
Michigan, which was opened on or about September 15,
1972, and which is shared by Respondent and two other
labor organizations.
Respondent's business manager is Harold Rasmussen,
who works in and out of the Dearborn hall which is in area
I of Respondent's geographical jurisdiction. Each of the
other geographical areas is served by an assistant manager.
The assistant manager for area III since March 1972 is
Donald Mullet. Mullet's predecessor as assistant business
manager was Stanley "Larry" Westphal. Rasmussen and
Mullet admittedly have been and are now agents of
Respondent, acting in its behalf, within the meaning of
Section 2(13) of the Act.
The complaint further alleges, and the answer denies,
that (Clarence Eugene) "Gene" Vincent, a steward for
Respondent at the so-called Townsend and Bottum job in
the early fall of 1972, was an agent of Respondent.
3 1 reach this conclusion and make the findings subsidiary thereto, based
on the allegations of the complaint, admissions in the answer or statements
in the answer that Respondent upon information believes the allegations of
the complaint to be true See Sec 102.20 of the Board's Rules and
Regulations and Statements of Procedure, Series 8. as amended
143
I conclude that Vincent was an agent of the Respondent
at that time acting within the scope of his authority. I rest
this conclusion on the credible and essentially undisputed
testimony of the Charging Party as to the functions of a
steward.
The Charging Party, who, although he has been a
member of Respondent, has been a steward for Respon-
dent on several occasions most recently at the Pearson job
in Alpena, Michigan, in the spring of 1972. The then
assistant business manager, Westphal, appointed the
Charging Party to this post. The Charging Party testified
that, as a steward, he processed a grievance for a fellow
employee, Cartwright, in which he, the Charging Party,
spoke to the contractor, persuaded the contractor not to
discharge Cartwright but to lay him off and then obtained
for Cartwright anotherjob. This last aspect of the Charging
Party's action was ratified through Respondent's hall. At
the time he was steward at the Pearson job, the Charging
Party was the only steward of Respondent on that job.
Also, as part of his duties, the Charging Party spoke to
the assistant business manager for Respondent on a few
occasions and contacted the business manager , Rasmus-
sen, by telephone and sent weekly reports to Rasmussen at
the Respondent's Dearborn hall. In speaking to the
business manager, Gerard reported the presence of
nonunion employees at a site on one occasion and on
another requested that additional men be referred to fill
vacancies.
Vincent, called as a Respondent witness, did not
elaborate on his duties as a steward except to say he
notified Respondent' s assistant business manager, Mullet,
when the Townsend job was completed. Since there is no
indication that any other steward served during Vincent's
tenure at the Townsend and Bottum job and in view of the
small number of boilermakers working on that job (six) I
conclude he was the only steward of Respondent at that
site at times relevant hereto.
I further conclude that a Respondent steward is the
representative of the Respondent at a site where the
members or boilermakers it has referred are working and is
the point of contact for employees, employers, and
Respondent alike in dealing with union matters including,
variously, grievances, layoffs, working with nonunion
employees and the need to fill vacancies. I conclude that
Vincent, as a steward, had these same responsibilities at the
Townsend and Bottum job as the only steward at the time
and that Vincent was then an agent of Respondent within
the meaning of Section 2(13) of the Act acting within the
scope of his authority at times pertinent hereto dealing
with matters of layoff and expected vacancies, as will
appear.5
B. The Respondent's Exclusive Hiring and Referral
System
The Respondent's International has, since at least 1966,
been a party to a national agreement, Boiler Manufactur-
i The Dearborn hall is sometimes referred to in the record as "Detroit"
or the office or hall in "Detroit ," near which Dearborn is located
Public Uttbty Construction and Gas Appliance WorAerv of the State of
.New, Jersey, Local 274. UA, 120 NLRB 355, 362
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ers National Construction Agreement, to which Riley is
also signatory . This agreement , which contains an arrange-
ment whereby the Union exclusively refers applicants for
employment to the covered employers, provides for local
area implementation by the appropriate local union.
Respondent and Riley have in fact maintained a practice
whereby Respondent is the exclusive source of boilermaker
employees at Riley's jobsite at Essexville, Michigan, which
is here involved.
More specifically, the national agreement provides, upon
local implementation , for a local union to operate an
exclusive hiring hall for the referral of all "competent and
qualified" field construction boilermakers, boilermaker
helpers, and boilermaker apprentices. The local union is
required to maintain a registration facility whereunder
applicants shall be registered on the appropriate out-of-
work list for each classification in order of time and date of
registration . Each applicant is required to reconfirm his
availability every 2 weeks and be available by telephone
within 4 hours to maintain his place on the out-of-work list.
One way a boilermaker may qualify for registration is on
the basis of 4 years' practical experience in the boilermaker
trade as a foreman, subforeman, or boilermaker in the
building and construction industry . Lesser qualifications
are required for boilermaker helpers and boilermaker
apprentices . Referral of men under the exclusive hiring
arrangement, thus established , is to be a "first in, first out"
basis without regard to union membership. Joint referral
committees are to be established in local areas to oversee
certain operations of the exclusive hiring hall. These
committees also pass upon any questions which may arise
as to the competency and qualifications of an applicant.6
Pursuant to the provisions of this same agreement,
Respondent has established local area joint referral
committee rules and standards. These provide in part that
an applicant may register for referral in any area of or all
of the four areas in Respondent's jurisdiction; may register
in person, by telephone or mail, provided he has estab-
lished his qualifications and special skills , if any, and
completed any forms submitted to him; may pass up one
referral without penalty; and may appeal any dispute
arising out of the operation of the plan to the local joint
referral committee (consisting of both employer and union
representatives) pursuant to certain procedures set forth in
the rules. More will be said hereinafter about the appeal
procedure when I address Respondent's affirmative Collyer
defense. The local rules also state that bona fide requests by
an employer for boilermakers with special skills and
abilities will be honored by Respondent.' These rules are
posted at the Respondent's office in Dearborn, Michigan.
The referral arrangement established by the national
agreement , described in part , supra, and the implementing
local rules are not alleged to be unlawful in the complaint.
The complaint rather alleges that Respondent in the
operation of its exclusive referral arrangement has refused
6 These findings are based upon certain factual background allegations
in the complaint and admissions in the answer as well as the agreement
itself, the relevant sections of which were received in evidence without
objection.
7 1 make these findings as to the local rules based on Rasmussen's
undisputed testimony as to their adoption and posting and the receipt in
evidence without objection of a copy of these rules.
to refer the Charging Party because he is not a union
member and that such refusals to refer him constitute
unfair labor practices.
The Respondent's hiring hall does not operate in the
manner established by the national agreement nor does the
hall even function in a manner consistent with the local
rules.
To begin with there is no referral list , as such. The only
"list" maintained by Respondent of out-of-work employees
desiring referral are their record envelopes which are kept
in a box at Respondent 's Dearborn hall separate from the
card records of employees already referred and still
working.8 The records of members are kept in a separate
section of this out -of-work box from the section in the
same box where the records of the nonmembers are kept.
Further, although the nonmember applicants whom
Respondent has referred over the past year or so (about
1,000 nonmembers) outnumbers Respondent 's members
(approximately 515) by almost two to one, Respondent has
a telephone book at its Dearborn hall containing the names
and phone numbers of all its members but only about 65 to
67 nonmembers .9
All out-of-work cards are kept "loosely" in the order in
which applicants become available for referral , but not in
the order of registration or notice of availability. Appli-
cants do not have to register for referral, where they have
had prior employment based on referral , but are consid-
ered by Respondent as available for a new referral when
Respondent has been notified that they have been laid off
from the last job to which they were referred . Respondent
is advised of such layoffs by reports of its stewards at the
jobsite where the layoff occurred . Referrals are made not
in the order in which applicants become available but
rather in the "discretion of the business manager ," or his
assistant who is called a dispatcher.
Applicants are not required to call in every 2 weeks to
insure continuance of their record in the out -of-work file,
as the contract requires . Further, although the contract
provides penalties for passing up more than one referral,
Respondent 's hall may permit an applicant two or three
declinations without penalty and in this regard the
assistant business managers have a certain amount of
discretion to refer the applicant to later jobs . In this same
connection , an applicant may pass up an immediate
referral to a short term job in hopes of referral to one of
longer duration. Although an applicant should be available
for telephone contact by the hall for a referral at certain
hours of the day or suffer penalties set forth in the contract
and the rules, these requirements are likewise not rigidly
applied. While there are methods set forth in the national
agreement and the national joint rules and standards
committee referral provisions whereby a local joint referral
committee may establish the qualifications of a boilermak-
er for referral (including the requirement of an examina-
tion), if a question arises in regard to such qualifications,
I construe that local rule referral formula "in order of seniority in
classification " to mean the same as the contract 's "first in . first out"
standard , for, to construe the local rule otherwise , would make the local rule
inconsistent with the contract.
N No permanent out-of-work records are kept at Respondent 's area III
office in Midland , Michigan.
Nonmembers are sometimes referred to in the record as "boomers."
BOILERMAKERS , LOCAL NO. 169 145
referrals have instead been made on the basis of the
evaluations by Respondent's business manager or assistant
business manager. These evaluations are arrived at by
observation of such officials or by word of mouth
appraisals given to them by stewards and others.10
As Rasmussen described Respondent's exclusive referral
system, it has since 1966 been "a very relaxed rule and
referral system."
It is therefore against the background of the actual
operation of Respondent's exclusive referral procedures, as
well as the requirements of the national contract and the
national and local rules, that the failure of Respondent to
refer the Charging Party to work opportunities subsequent
to mid-fall of 1972 must be assessed.
C. Sequence of Relevant Events; Gerard's
Background and his Failure To Obtain Work from
Mid-Fall 1972 to Mid-Spring 1973
The Charging Party, Clayton Gerard, is a big strapping
fellow who, based on his appearance, is about 6 feet 3
inches, in height, and about 220 pounds, in weight. He is
not a member of Respondent but is a member of
Boilermakers Local 83 in Kansas City, Missouri, although
he has not worked in that area or been referred by that
Local. He is now, and has been for some time, a resident of
the Bay City, Michigan, area where he now resides with his
parents. This location is in Respondent's geographical area
III. His first job in boilermaking work occurred in about
1955. He did not, however, resume work in this field until
1966. He thereafter was employed-by referral from
Respondent under its referral procedure-in boilermaking
work from 1966 to May 1972 when he was laid off from the
so-called Pearson job in Alpena, Michigan. Respondent's
Dearborn hall was apprised of this layoff on the basis of a
steward's report completed by the Charging Party himself
as the steward at that job. More will he said about the
Charging Party's qualifications for boilermaker work when
Respondent's principal defense is considered later in this
decision.
10 All the foregoing findings as to the actual operation of the exclusive
referral system are based upon the admissions of Rasmussen
11 While there is some testimony by the Charging Party that he
telephoned the assistart business agent , Don Mullet , about obtaining a
referral during this period, the Charging Party's recollection as to the dates
during the period was poor For example the Charging Party recalled
visiting Respondent 's Midland office in June, July, or August 1972 to speak
to Mullet, but that office did not open until September 15. as 1 have found
Mullet, who took telephone calls dealing with work referrals at his home in
Mt Pleasant , Michigan , until the Midland office opened , testified that the
Charging Party had never called him, Mullet, at home Since the summer of
1972 is outside of the Section 10(b) limitations period. I find it unnecessary
to resolve this credibility conflict nor to make any other findings in respect
to Clayton Gerard's activities during this period
12 George Gerard is a painter and has also done boilermaker work on
referral from Respondent.
13 1 make these findings principally on the basis of the credible testimony
of Clayton Gerard who, except for some difficulty in recalling dates,
testified forthrightly in respect to events in this and subsequent periods
which he was able to put in sequence by relation to other events Davis'
testimony is credited, as quoted, and is consistent with the Charging Party's
version of this aspect of the conversation Davis was not asked about his
request that Vincent contact Mullet Vincent at first denied all aspects of
this conversation, but, upon seeing his affidavit to the Board agent,
admitted that Davis had said he could use "you" (which is a singular as well
as a plural word) to work later in the year Vincent admitted that Davis told
The Charging Party was unemployed (or at least did no
boilermaker work by referral from Respondent) during the
late spring and summer of 1972.11
In September 1972, after the Midland office opened,
Clayton Gerard and his brother, George Gerard,12 visited
Mullet, Respondent's assistant business manager, at
Respondent's Midland office. Mullet told the Gerard
brothers that there was no work available for them at this
time . Shortly thereafter, however, Clayton Gerard was
referred to, and took work at, the Townsend and Bottum
job in Essexville, Michigan, about the end of September
1972.
As previously noted, Vincent was the steward at the
Townsend and Bottumjob.
At some point midway in the course of the Townsend
and Bottum job, or about late September or early October
1972, Vincent, Respondent's steward, spoke with Edward
Davis, Field Superintendent for Riley Stoker. This conver-
sation took place at the Townsend and Bottum site which
was nearby Riley's site at Karn. Present were Davis,
Vincent, the Charging Party, and other Townsend boiler-
makers. Davis told Vincent he hoped "they got over on the
job when I started hiring in men ." I conclude that "they"
meant Vincent, the Charging Party and the other Town-
send boilermakers present. In this same conversation Davis
asked Vincent if this could be arranged by calling Mullet.
Vincent agreed to do this.13
After Davis made this request to Vincent, Vincent
subsequently told the Charging Party in the presence of
Robinson and Lewis (the other two non-Respondent
boilermakers) at the Townsend job that he, Vincent, had
spoken to Mullet,14 and he, Vincent, was fearful that the
non-Respondent Townsend boilermakers were not going to
get on the Rileyjob.
The Townsend job came to an end on November 3, 1972,
and all six boilermakers, three members of Respondent
and three nonmembers, were laid off no later than that
date Gerard, I conclude, was laid off shortly before that
date.15 In view of Vincent's admission that he promptly
called Mullet, I conclude that this steward's report then put
him that the Townsend crew was "a fine bunch of looking boilermakers"
Vincent also twice changed his testimony regarding the number of
boilermakers on the Townsend Job I credit the Charging Party's
recollection of these and latter events at the Townsend site over that of
Vincent and my findings are based pnmarily on the Charging Party's
testimony
ii Vincent denied speaking to Mullet about Davis' request but rather
testified that he simply called Mullet at the end of the Townsend Job to tell
Mullet the job was over and that boilermakers were laid off. Vincent stated
that he did not even ask Mullet at that time about referrals to the Riley Job
I find this testimony incredible in the light of Vincent '% almost immediate
referral thereafter to the Riley job and his interest in that Job as admittedly
expressed to Clayton Gerard
Thus, Vincent admitted he discussed the Riley Job with Clayton Gerard
and told Gerard he hoped to get laid off before the completion of another
boilermaker job in the vicinity, because he would thereby get ahead of the
people from the other job on the out-of-work list and this would put "a lot
of work ahead of us " I conclude in the context of this remark that the "a lot
of work" referred to by Vincent was the Riley job. which, he said, was
expected to run 4 years according to what Davis told him
i' Vincent testified that all of the boilermakers were laid off together
T he referral card of Eugenis. one of the six laid off, shows that he was laid
off from the instant job on November 3, 1972 Gerard did not recall the
exact date the Job ended and stated, at one point in his testimony, that other
boilermakers may have worked a few more days than he Also after being
refreshed with a look at his rownsend pay stub. Gerard testified that he last
worked on October 24 1973
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent on notice that Clayton Gerard was "out-of-
work" and that Gerard, under Respondent's practice,
thereby became eligible for referral.
The three boilermakers from the Townsend job, who
were members of Respondent,-Vincent, Eugenis, and
Evans-were referred to the Riley Stoker job at Karn on
November 6, 1972, by Respondent. As Vincent had
previously warned, the three Townsend nonmember
boilermakers (including Gerard) were not.
During the period November 6, 1972, through November
14, 1972, only members of Respondent (with one excep-
tion) were referied by Respondent to jobs in all the
geographical areas of its jurisdiction. These jobs were to
begin from November 9 through November 30. By my
count 160 referrals of Respondent's members were made
during this period.16 Of these 160 referrals, Respondent's
members R. Busch, C. Carter, C. Hardman, G. Herbert, G.
Hinkle, J. Koehler, F. Smales, J. Snell, C. Van Slaubrouck,
and D. Visser were referred twice and members N.
Tarasick and H. Vickery were referred three times.
Sometime in November 1973, after his layoff on
November 3, 1972, but before the deer hunting season
began on November 15, 1973, the Charging Party and his
brother George Gerard went to see Mullet at Respondent's
Midland hall about referral for work. Mullet advised the
Gerards that he couldn't put them to work adding that
about 30 "local men" were out of work at that time.17
When Mullet spoke of local men, I conclude he was
speaking of members of Respondent.18
On December 7, 1972, Clayton Gerard called Mullet
person-to-person at the Respondent's Midland office to
seek work but Mullet told him none was available.
On or about January 21, 1973, Rasmussen telephoned
16 1 accord no weight to Rasmussen's speculative testimony that boomers
(nonmembers ) probably left the area at that time because "we" (Respon-
dent) had so many men out of work at that time (This testimony was
offered to explain why no nonmembers were referred during this period) I
do attach weight to this remark as an admission of Rasmussen 's awareness
that nonmembers do not expect referrals when Respondent ' s members are
out of work
17 1 make these findings on the basis of the credible and generally
corroborative testimony of Clayton Gerard and George Gerard Mullet
recalled the conversation and also stated that about 40 members and
nonmembers were out of work in the area at that time Mullet denied stating
that he could not put the Gerards to work because local men were out of
work at that time
There are a number of conflicts in the testimony of the Charging Party
and/or his brother, on the one hand , and Mullet on the other in addition to
the above , Mullet also denied speaking to Clayton Gerard by telephone on
December 7, 1972, and February 6, 1973, telephone calls which will be
discussed hereinafter These calls were billed by the telephone company as
person-to -person calls to the telephone number at Respondent's Midland
office and , according to the Charging Party's credible taumony , he spoke
to Mullet directly Mullet later changed his testimony, at least as to the
second of these telephone calls, to the statement that he could not recollect
the conversation In at first denying these last two telephone calls Mullet
noticeably blinked his eyes , according to my trial notes I did not notice
otherwise that this was his habit while testifying Wherever a conflict
appears in the testimony of Mullet on the one hand and the Charging Party
or the latter 's brother in the other , I have credited the recollection of
Clayton Gerard or his brother as to the events in question I have already
described the forthright manner of Gerard in testifying George Gerard's
manner was similar
18 This inference is inescapable A literal interpretation of local men (to
mean men living in the local area) would make no sense because the
Gerards themselves lived in the local area Moreover, Rasmussen likewise
the Charging Party who received a message to return the
call.19 The Charging Party returned the call on January 21,
1973, and spoke to Rasmussen. Rasmussen offered the
Charging Party some work at least in the Detroit area.
Rasmussen also told the Charging Party that Mullet was
saving the Charging Party for the Karn job and that he, the
Charging Party, would be.better off to wait for it. The
Charging Party did not accept the offer of a referral at that
time, explaining, in part, in his testimony that he wasn't too
interested in going to Detroit.20
On February 6, 1973, Gerard again telephoned Mullet to
ask specifically about referral to a certain repair job at
Weadock. Mullet told Gerard that he, Mullet, was saving
Gerard for the Karn plant job on the Consumer jobsite
(the Riley job).21
In February 1973, there was a significant upswing in
employment in boilermaker work. This included the
Palisades job mentioned by Rasmussen in his testimony,
recounted supra. A substantial number of nonmembers
were referred to this and other jobs in that month.
In March 1973, the referral opportunities went back to
"chicken s-t" jobs, in the lexicon of Rasmussen. During
the period March I to 16, 1973, some 285 of Respondent's
members were referred for work whereas only 23 nonmem-
bers were referred during the same period.
In March, Rasmussen admitted, he was aware that the
Charging Party was available for work.
On April 12, 1973, as previously found, Gerard filed the
charge in the present case.
Sometime in April 1973, Gerard also called Mullet about
a job referral and complained that Respondent had
used the phrase "local men" in his testimony and explained that in his use of
that phrase he meant members of Respondent
19 Prior to this time the Charging Party telephoned Rasmussen several
times at Detroit but was unable to get through to him
20 In its brief Respondent asserts that Gerard gave divergent versions of
this conversation I conclude that the final state of the record-bearing in
mind Gerard's weakness on dates, but clarity on events-supports my
findings above as to what was stated by Rasmussen in this conversation
Gerard was confused about this conversation, but when he recalled the
event in which a possible referral to Detroit was discussed, his testimony
thereafter is consistent and believable
For his part, Rasmussen admitted the conversation and stated he offered
Gerard work in the Detroit area or at a nuclear plant at Palisades in the
western part of Michigan He also stated Gerard said he was "hanging
loose" and wanted to make the Riley job in Bay City To this Rasmussen
admittedly said, "be my guest " Rasmussen's testimony that he told 3erard
the referrals offered and elsewhere "sure beat unemployment" was changed
on cross-examination to testimony that this is his "standard cliche," but he
wasn't certain he said it to Gerard in the instant phone call Rasmussen's
denial that he advised Gerard to wait for the Riley job from Mullet is
directly contrary to Rasmu .,en's admission that he, Rasmussen, told
Gerard to "be my guest" in response to Gerard's statement that he, Gerard,
planned to wait for the Riley job Other testimony of Rasmussen, which
might be contrary to Gerard's is prefaced by the expression "I would have
told" Gerard which falls short of testimony as to what was actually said In
view of the above, I credit Gerard's version of this conversation
Under the contract, as noted, Gerard had the right to one pass of a
referral without penalty and the right to several passes under Respondent's
policy
21 Although the Charging Party did not repeat this latter aspect of the
conversation in cross-examination he did state on cross that Mullet had
previously told him he was being saved for the Karn job
BOILERMAKERS , LOCAL NO. 169 147
referred a permit (apparently nonhoilermaker) employee to
a boilermaker job 22
Also in April 1973, about 2 weeks before May 3, 1973,
the Charging Party spoke to Rasmussen at home and asked
if he, Gerard, was on the out-of-work list. To this,
Rasmussen replied that he was not going to put Gerard on
the out-of-work list until he did something official.
Rasmussen then hung up.23
On April 23, 1973, Gerard's attorneys wrote a letter to
Rasmussen stating that they had been retained to represent
him, that Gerard was ready and available for work
pursuant to the constitution of Respondent's International
and Respondent's bylaws and that Gerard had authorized
these attorneys to institute proceedings against Rasmussen
if Gerard continued to be denied employment.
Rasmussen admitted that in April he told his office to
put Gerard on the out-of-work list and refer him to the
next job.
The Charging Party was referred by Mullet for work on
May 3, 1973, to a job with Terre-Haute Industries and the
Charging Party was working there at least until the hearing
began on July 2, 1973. This was his first referral since the
Townsend job in September 1972. although, as noted, he
was offered and declined referral on January 21, 1973, in a
telephone conversation with Rasmussen.24
D. Respondent 's Defenses
1. The defense that Gerard was not referred to the Riley
Stoker job was because Gerard was not qualified for work
with the employer. Respondent's principal defense is that
Clayton Gerard was not referred to the Riley Stoker job for
the reason that he was not qualified to do the work on that
job. Respondent contends that the Riley job dealt with
work on two of the largest pressure boilers ever installed in
Michigan and that only highly skilled top riggers qualified
for the rigging work involved. The riggers referred to this
job were, says Respondent, more highly qualified than the
Charging Party. And, Respondent concludes that, in
making referrals, it was not precluded from using its best
judgment as to the relative qualifications of employees
seeking referral.
Gerard began work in the boilermaker trade in earnest in
1966, having had brief experience at such work in 1955.
Between 1955 and 1966 he worked as a painter and a
steeplejack. Between 1966 and 1970 he was referred by
Respondent for boilermaker jobs, Rasmussen advising
employers at that lime that he was sending out "less than
qualified" registrants to jobs. By 1970, however, Respon-
dent concedes in its brief, Gerard had 4 years qualifying
experience as a boilermaker.25
Four years experience as a boilermaker qualifies a
boilermaker for registration on a boilermaker's out-of-
work list under the provisions of the aforementioned Boiler
Manufacturers National Construction Agreement applica-
ble hereto.26
Respondent's brief further concedes that by 1972 Gerard
had approximately 6 years' experience as a boilermaker.27
Nowhere is there any indication that the Charging Party
was refused employment by a contractor at any time from
1966 to 1972 based on lack of qualification, although a
contractor is entitled under the national agreement to
reject an applicant referred by a local union such as
Respondent. Nor is there any indication that Gerard has
ever been requested to take a boilermaker "competency
examination," although such might have been requested
under the national agreement. Nor is there any showing
that any question has been raised as to his competence (a
question which would be resolved by the local joint referral
committee under the national agreement and implement-
ing rules) from 1970 until Respondent has now taken the
position that he was not qualified for referral to the Riley
Stoker job.
I find. therefore, that Clayton Gerard had 6 years
qualifying experience as a boilermaker in November 1972
and that this is more than sufficient to meet the 4-year
requirement of the national agreement for placement in
this boilermaker classification on the out-of-work list.
While the record amply shows that a rigger and,
particularly, a high rigger are demanding jobs of consider-
able skill in the boilermaking trade, I also conclude that
Gerard is a qualified high rigger. For he has worked at
several jobs--on referral from Respondent-requiring him
to perform rigging work at heights of 90 feet or more.
These jobs included a job with Riley Stoker at Harbor
Beach in the late 1960's at which Gerard worked as a
boilermaker at substantial heights regularly for about 2
years.29 Also, Gerard worked at the DeVilbiss job for
several months in early 1972 which involved work on a 90-
foot stack and also the Townsend job in September and
October 1972, which required lifting a deairator unit to the
top of a building 29
There is no indication that anyone. contractor or
Respondent, raised any question as to Gerard's capabilities
when he was performing any of these assignments.
In any event, the statement by Davis, field superintend-
ent of Riley Stoker, to Vincent in the presence of other
boilermakers including Gerard at the Townsend job
22 The Charging Party's name appears on Mullet's desk pad under the
date April 24, 1973.
23 These findings are based on the testimony of Gerard Rasmussen's
version of the conversaton is essentially corroborative . Rasmussen recalled
the call , stated that Gerard complained of his failure to be referred and that
he wasn't being treated fairly under the rule-, To this Rasmussen told
Gerard that, if Gerard were going to be technical, Gerard was supposed to
call the office during working hours to show availability Rasmussen
admitted being angry about the call and said he probably hung up on
Gerard
21 As previously noted, under the national agreement and implementing
rules , an applicant could turn down one referral without penalty In
practice, however, as Rasmussen testified , an individual could turn down
more than one referral without penalty and also take his chances on waiting
for referral to a long-term job
This concession is consistent with the admissions of Rasmussen
2fi See Resp Exh 3, p 14
27 This concession is buttressed by Gerard's printed record of referrals in
1971 and 1972 and testimony as to his assignments in those Vears
2" This finding is based on Gerard's credible testimony Westphal's
testimony that the work was of only a few days duration is not necessarily
inconsistent because Westphal by his own statement quit that job while it
was still going on
2" These findings are also based on the credible testimony of Gerard I
disagree with the statement in Respondent ' s brief that Gerard's testimony
on rebuttal in regard to the Townsend job is contradictory of his testimony
when the General Counsel put on its case in brief For, while the Townsend
job involved the installation of deairator which itself is only 12 to 14 feet
high, the deairator. as Gerard testified , had to be moved to the top of a
building as found, supra
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conclusively establishes that Gerard was qualified to work
on the Riley project at Karn. For, as I have found, Davis
told Vincent that he hoped they (the Townsend boilermak-
er crew) got over on the Riley job when, he, Davis, started
hiring men for Riley.
Respondent's defense, of course, goes somewhat deeper
than the foregoing. What Respondent is saying, essentially,
is that it has the right to send its best qualified men and
that there is no prohibition against its exercise of this right.
And Respondent asserts that Vincent, Eugenis, and Evans,
whom it referred to Riley, on November 6, 1972, and Card,
Snell, and Flood, referred on or about November 28, 1972,
were much better qualified than Gerard to do high rigging
work. Further, says Respondent, the welders it referred to
Riley in both instances were qualified in an area of -the
trade-welding-in which Gerard is not qualified.
The record supports the conclusion that riggers Vincent,
Eugenis, Evans, Card, Snell, and Flood, all of whom are
members of Respondent, are better qualified than Gerard.
I find that Gerard, in the absence of any probative
evidence to the contrary, is not a qualified welder
However, I disagree with Respondent's contention that
there is no prohibition in its exercising its discretion in
referring out what it considers its most qualified talent.30
The contract of the International with Riley, which is the
basis of Respondent's exclusive referral system, prohibits
this method of referral. That contract specifically requires
referral on a first in, first out basis31 provided the
boilermaker is qualified. As I have found, Gerard became
qualified for referral under the contract based on his
admitted 4 years experience as a boilermaker and should
have been referred when his name came in turn to the top
of the out-of-work list.32 This means that he should have
been referred at least before Eugenis who was laid off after
Gerard was laid off from the Townsend job.
But even if I were to accept Respondent's defense insofar
as the Riley Stoker job is concerned, which I do not,
Respondent offers nothing to explain its failure to refer
Gerard to boilermaker opportunities with other employers
in area III in November 1972,33 although other boilermak-
er referrals were made in that area at that time and
Respondent's exclusive referral system serviced from 26 to
55 employers in the State of Michigan during the period
July 1972 to June 1973. Nor is there any explanation of its
30 Respondent cites Local 341, Hod Carriers, Building and Common
Laborers Union of America, 146 NLRB 1358, for this proposition which
appears in the Trial Examiner's Intermediate Report However, the Board
in that case in affirming the Trial Examiner's Report, did soon the basis of a
failure of factual proof, specifically declining to adopt the Trial Examiner's
exposition of the law to, p 1358, In 11
31 See Resp Exh 3, p 15 (section 4)
32 Rasmussen admitted, as noted, that Respondent does not refer on a
first in , first out basis as required by the cor'ract-see transcript p 311 and
pp 332 and 333
Further rigger Card, referred to Riley on November 28, 1972, had been
out of work longer than Eugenis, who was referred on November 6, 1972
Thus, Card's file shows he was previously employed by "MBE" (which
Rasmussen explained, and I find, stands for Michigan Boiler) at Weadock
beginning on September 27, 1972 That job closed down before the
Townsend job at which Eugenis was employed until November 31, 1972
(Vincent so testified) Yet, Rasmussen had high regard for the abilities of
Card as a top rigger since, according to Rasmussen , Card was one of the
"top flight people" he decided to send to Riley on November 27
33 1 note in passing that Respondent's opinion of Gerard was at least as
good as its opinion of Harold Martin, judging from the comments of
failure to refer him for other boilermaker opportunities as
they arose with Riley Stoker.34
In view of the foregoing I reject Respondent's defense
that Clayton Gerard was not qualified for referral to Riley
on November 6, 1973.
2. Respondent's partial defense that the General Counsel
did not give Respondent due notice of one of the General
Counsel's violation theories Respondent avers that the
General Counsel did not give it due notice of his charge
that, in refusing to refer Gerard, Respondent unlawfully
violated its duty of fair representation.
I likewise find no merit in this defense.
The General Counsel in his complaint has pleaded the
violations with which Respondent is charged and has set
forth the sections of the Act Respondent is charged with
violating, i.e., Sections 8(b)(1)(A), 8(b)(2), and 2(6) and (7).
The General Counsel has also pleaded in this same
complaint that Respondent violated these sections of the
Act by refusing to refer Gerard because he is not a member
of the Respondent and because Respondent was giving
preference in its referrals to its own members. Thus,
Respondent has been clearly put on notice of the sections
of the Act which it is charged with violating and a factual
allegation of the conduct which is alleged as the substance
of the claimed violations.
What Respondent's argument boils down to is that the
General Counsel did not allege in the complaint all of the
theories on which he hoped to establish violations of these
sections of the Act.
I reject this contention. I am aware of no such
requirement in pleading and Respondent cites me none.
Moreover, in his opening statement the General Counsel
did alert Respondent as to this theory citing the authority
on which the theory is based, Miranda Fuel Company, Inc,
140 NLRB 181. After the second day of hearing, there was
a recess of almost 2 weeks in which Respondent could have
prepared its defense to the alleged violations as they may
have been based on that theory.
Respondent's further contention that the proof underly-
ing this theory has failed will be dealt with hereinafter.
3. Respondent's partial Collyer defense. In its brief
Respondent argues, as it did at the beginning of the
hearing, that this matter should be deferred to arbitration,
under principles announced by the Board in Collyer
Rasmussen regarding Gerard based on his own observations and reports
received by him from his assistant business managers, Mullet and Westphal
Respondent referred Martin for work at Weadock and Alpena in are" ill on
November 8, 1972, and December 16, 1972, respectively Martin is a
member of Respondent Gerard, of course, is not
i4 I find no evidence in this record that only high riggers or even riggers
were needed to perform the Riley Stoker Job While the testimony of Mullet
and Rasmussen is consistent that high riggers (and welders) were sought by
Riley on November 6, and I so find , Rasmussen 's testimony as to Riley's
requests for November 27 or 28 indicate that at that time riggers and
welders were requested and I so find Rasmussen 's determination to send
what he considered "top flight" people was sua sponte The undisputed
testimony of Lonnie R Briggs , office administrator of Riley, shows, and I
find, that the number of boilermaker mechanics (including riggers) which
was 9 on November 29, 1972, increased to 10 on February 28, 1973, to 14
on March 28, 1973 and to 16 on April 25. 1973 The additional boilermaker
mechanics hired on or about February 28 and thereafter are not shown to
be riggers or high riggers Finally Rasmussen conceded that Gerard was
qualified in a number of areas of the boilermaker trade and testified he was
willing to refer Gerard in January to a job involving a major repair on a
nuclear reactor
BOILERMAKERS, LOCAL NO. 169
Insulated Wire, 192 NLRB 837. More precisely the
Respondent desires that this dispute be resolved through
the process of the local Joint Referral Committee,
established under the provisions of the national agreement,
and whose function is, among others, to settle disputes over
referrals of job applicants.35
Here, in the absence of any evidence to the contrary, I
conclude that the Charging Party did not invoke his appeal
rights to seek redress under the local area Joint Referral
Committee Rules and Standards.
However. I reject this defense for the reasons which
follow.
Such a deferral by the Board, if one were to occur, would
proceed on the assumption that the arbitration procedure
would "resolve this dispute in a manner consistent with the
standards of Spielberg. "36 And the Board in deferring
would not dismiss the complaint but would instead retain
jurisdiction over the case to insure that the arbitration did
in fact accord with Spielberg standards.37
The Board will not defer to arbitration any complaint
brought by an individual Charging Party, as here , unless it
appears that the interests of that individual harmonize with
the interests of one of the parties to the collective-
bargaining agreement-employer or union-wherein the
arbitration process has been established.38 In the present
case , however, the interests of the Union are clearly at odds
with those of the Charging Party, because the Respondent
is charged with discriminatorily refusing to refer the
Charging Party for employment. As to the employers
governed by the exclusive referral provisions of the
national agreement, these employers either have no interest
in the proceeding, since they would presumably have no
knowledge of an applicant never referred to them, or, if the
employers were aware, their interests would coincide with
those of Respondent because they have delegated to
Respondent, under the exclusive referral arrangement, a
role in the hiring process.
Hence, I conclude that this case is not one which is
appropriate for deferral to arbitration under the Board's
Collyer doctrine.39
Moreover, there is an additional reason in the present
case for my refusal to defer. That is, that it cannot be
assumed in this case that the arbitration procedure (the
procedure which would begin with an appeal to and
hearing before the joint referral committee) would resolve
this dispute in a manner consistent with Spielberg.
For, in Spielberg, the Board relied on the fact that the
arbitration proceeding therein appeared to be fair and
regular and specifically noted that the four individuals
involved were represented by counsel. In the present case
article IV, section B, of the referral appellate procedure,
relied upon by Respondent in support of its Collyer
argument, also provides:
35 See reverse side of G C Ech 7, article IV, local area joint referral
committee rules and standards Local 169.
78 National Radio Co, 198 NLRB No I. speaking of Spielberg Mfg Co,
112 NLRB 1080
37 National Radio Co, supra
38 Kansas Meat Packers, a Division of 4risto Foods, Inc, 198 NLRB No
2
iq Cf Anaconda Wire and ('able Compan3, 201 NLRB 775 Respondent's
reliance upon legal principles to the contrary as advocated in the
149
... No professional legal counsel shall be permit-
ted to appear for any of the parties at the hearing.
(Emphasis mine.) 40
The denial of this fundamental right under article IV,
section B, is in my judgment at odds with Spielberg and
precludes any assumption that the arbitration process
herein would accord with Spielberg standards. For, under
the operative facts of that case, Spielberg standards include
the right to counsel.
Concluding Findings
It is. of course, hornbook law that discrimination in job
referrals under an exclusive referral arrangement must be
proved; it cannot be presumed.41 Where, however, it has
been proved that a union has refused to refer an applicant
under an exclusive referral system because he is not a
member of that union, it is a violation of Section 8(b)(1)(A)
and 8(b)(2) of the Act. 42
Here I am satisfied that the General Counsel has proved
that Respondent refused to refer the Charging Party to
boilermaker opportunities with Riley Stoker and other
employers, because he was not a member of the Union.
I rest this conclusion principally on the following. On
November 6, 1973, when referrals were made to the Riley
job, none of the nonmember boilermakers, such as Clayton
Gerard, from the prior Townsend job, were referred to
Riley Stoker. This was just what Respondent's Townsend
steward, Vincent, had warned Gerard and the other
Townsend nonmember boilermakers after he, Vincent,
acting within the scope of his authority as Respondent's
agent in the reporting of layoffs and upcoming vacancies,
had spoken to Mullet , the Midland assistant business
manager, about referrals to the Riley job. The three
boilermakers from the Townsend job who were members
of Respondent-Eugenis, Vincent and Evans-were
promptly referred on November 6, 1973, to Riley. Yet
under the provisions of the national agreement under
which Respondent's referral system was established and is
supposed to operate, Gerard should have been eligible for
referral to that job at least before Eugenis since, as I have
found, Gerard was laid off before Eugenis.
Further, at or about the same time as the Riley referrals
were made, or sometime between Gerard's layoff from
Townsend (shortly before November 3, 1973) and the
beginning of the local deer season (November 15. 1973),
Clayton Gerard and his brother George were told by
Mullet that there was no work for them, Respondent's
members being out of work. Mullet could not have made it
plainer to Clayton Gerard that Clayton Gerard would not
intermediate Report in International Hod Carriers , Building and Common
laborers Union of America. Local 34! AFL-CIO. 146 NLRB 1358, is
misplaced. for, as I have heretofore noted those legal principles were not
adopted by the Board
The hearing referred to is the one held by the joint referral committee
" Local 694. United Brotherhood of Carpenters and Joiners of America.
AFI-CIO. 133 NLRB 52.
42 See Local 117, United Brotherhood of Carpenters and Joiners of
America. AFL-CIO, 189 NLRB 690
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be then referred, since Gerard was not a member, nor
would Gerard be referred with members out of work.43
And, since Mullet is an admitted agent of the Union with
responsibility to make employment referrals on the basis of
frequent contact with, and instructions from, Rasmussen
and other officials at Respondent's Dearborn office, I
conclude that Mullet was acting within the scope of his
authority and that Respondent is responsible for his
conduct.
Finally, as I have found, only members, with one
exception, were thereafter referred by Respondent in
November 1972, to jobs beginning as late as November 30,
1972.
I have previously rejected Respondent's defense that the
Charging Party was not qualified for referral to the Riley
Stoker job as a high rigger. And as noted, this defense, even
if found meritorious, would not have met the allegation of
the complaint that Respondent also discriminatorily
refused to refer Clayton Gerard to other employers under
its exclusive referral arrangement nor even to Riley Stoker
for other and later boilermaker opportunities.
I also rest my rejection of this defense on the absence of
any showing that the Charging Party was even told that he
was not being referred because of his alleged lack of
qualification. Gerard's prior referrals to work of the same
type likewise belie any validity in this defense.44
Further, it is clear from an examination of the collective-
bargaining agreement and the implementing joint referral
committee rules that the Respondent has the right to
categorize applicants as boilermakers, apprentices, or
helpers. It is also clear from the entire record herein that
Respondent could consistently further categorize boiler-
maker applicants as welders, riggers, and mechanics.
However, the contract does not give Respondent the right
to pick and choose among individuals in any of these
categories but rather imposes upon it the duty to make
selections in each category solely in the order in which the
individuals have registered for employment. In short,
applicants are supposed to be referred, as required, on a
first in, first out basis.45
Any deviation by the Respondent from the requirement
that applicants be listed in the order in which they register
for referral or otherwise indicate their availability for
referral may be considered, among other facts, as an
indication of the discriminatory operation of the Union's
exclusive hiring hall privileges, contrary to the Act.46
Here the Respondent, contrary to the requirements of its
collective-bargaining agreement and implementing rules,
does not maintain any lists at all, but merely keeps records
in a box in no particular order and, even within the box,
the records of union members are separated from records
of nonmembers. Referrals are made in accordance with the
discretion of the business manager, Rasmussen, or the
dispatcher. I conclude that the failure to maintain lists as
required by the contract and rules and the further failure to
refer applicants on a first in, first out basis, as likewise
required, additionally evidences Respondent's discrimina-
tory operation of its exclusive referral system.47
These same facts impel me to the conclusion that
Respondent has carried out its referral system in an
arbitrary and capricious fashion whereby it has referred
applicants not on any objective basis-although objective
bases are spelled out in the contract as well as means for
resolving questions as to qualifications-but rather in
accordance with the desires of the business manager or
dispatcher at a given time. That this has resulted in an
overwhelming preference being shown to Respondent's
members over nonmembers, particularly in lean times such
as November 1972, and March 1973, is apparent from my
findings, supra.
But this conduct is directly contrary to the mandate of
the Respondent under its exclusive referral system to refer
applicants without regard to union membership, that is, to
serve all its applicants-its constituency-equally. This
duty is no different from that of an exclusive bargaining
representative to represent all employees in a collective-
bargaining unit in the manufacturing industry equally; that
is, to provide equal representation and service to all
employees in the unit without regard to union membership
or other considerations. For, given the fluctuation of
employment in the construction industry, the legality of
prehire collective-bargaining agreements in that industry
under Section 8(f) of the Act and the legality of a
nondiscriminatory referral system to implement such
prehire agreements, the unit for representation in the
construction industry, under an exclusive referral system,
necessarily includes applicants for referral.48
I accordingly conclude that Respondent's refusal to refer
its nonmembers applicants on an equal basis with its
member applicants violates its duty to represent its
nonmember applicants on a fair and equal basis with its
member applicants.49
Based upon all the foregoing, I conclude that Respon-
dent, beginning November 6, 1972, discriminatorily ref-
used to refer Clayton Gerard for boilermaker opportunities
because he is not a union member, and that Respondent
thereby violated Section 8(b)(I)(A) and 8(b)(2) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth above, occurring
in connection with the operations of Respondent described
in section I, above, have a close, intimate and substantial
relation to trade, traffic, and commerce among the several
states and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
43 Id.
44 International Brotherhood of Electrical Workers, AFL-CIO, Local 82,
182 NLRB 59, enfd. 440 F.2d 1 184 (C.A. 6, 1971).
45 Where any question as to an applicant' s qualifications arises the
contract and implementing regulations further provide adequate means for
resolving such questions, as previously mentioned.
46 Ironworkers Local Union No. 290 (Mid-States Steel Erection Co.), 184
NLRB 177, enfd. 443 F.2d 383 (C.A. 6, 1971).
1" It is. of course, well settled that an applicant is an employee within the
meaning of the Act. Phelps Dodge Corporation v. N.L.R.B., 313 U.S. 177.
4'+ Cf. Hughes Toot Company 147 NLRB 1573. This conclusion is in my
judgment particularly apt in the present case, since, I find, based on the
undisputed testimony of Gerard, he pays 2-1/2 percent of his earnings to
Respondent. Cf. Houston Maritime Association, Inc., 136 NLRB 1222, 1225,
enfd. as modified 337 F.2d 333 (C.A. 5, 1954).
BOILERMAKERS , LOCAL NO. 169 151
Y. THE REMEDY
Since I have found that the Respondent engaged in
certain unfair labor practices in violation of Section
8(b)(1)(A) and (2) of the Act, I will recommend that
Respondent cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
As the discriminatory practices in the operation of the
Respondent's exclusive referral system could have been
precluded by Respondent's compliance with the proce-
dures prescribed in the national agreement and implement-
ing national and local regulations, designed in part. at least
on their face, for the prevention of any discrimination in
job referrals between members of Respondent and non-
members, it will be recommended that Respondent shall be
ordered and directed hereafter to meet all requirements in
that agreement and in the implementing rules in the matter
of job referrals as set forth in detail in those documents
and in all succeeding collective-bargaining agreements and
rules which-if they contain exclusive referral arrange-
ments-must necessarily contain the same or substantially
equivalent requirements if such documents are to avoid the
proscriptions of the Act.
More specifically, and in accordance with the national
agreement and implementing rules, it will be recommended
that the Respondent be required to maintain separate
registers or books of records for each of the classes of
applicants for employment designated in the agreement
and rules. Thus, Respondent will be required to prepare
and maintain a separate list, by chronological order of
applicant registration, for each of the following classifica-
tions-boilermakers, boilermaker helpers. and boilermaker
apprentices. This means that there will be a single
registration list for each classification and members and
nonmembers will not be segregated thereon but nonresi-
dents may be segregated on each such list consistent with
the provisions of Section 8(f) of the Act and appendix B of
the national agreement . This recommendation is intended
to permit the boilermaker's register to be subdivided into
the subclassifications of welder, rigger, and mechanic and a
qualified boilermaker may register for any or all of such
subclassifications. This recommendation is not intended to
preclude the resolution of issues in respect to qualifications
pursuant to the national agreement and the implementing
rules, however, in my judgment, any dispute over qualifica-
tions or other disputes over a referral matter which are
alleged to be an unfair labor practice should not be
deferred by the Board for disposition under the contract or
the rules so long as the local rules forbid an applicant to be
represented by an attorney in such dispute. It is also
intended that applicants may limit the areas of Respon-
dent's geographical jurisdiction in which they desire work.
It will be recommended that applicants be referred from
each appropriate list on a first in, first out basis consistent
with appendix B, section 4, of the national agreement,
subject to the other rules of the national agreement and
implementing regulations thereunder such as the require-
ment of availability for contact by the hall between the
hours of 12:30 p.m., and 4:30 p.m., Monday through
Friday and consistent with each applicant's desire as to the
geographical area in which he wishes to work.
It will be recommended that all exclusive referral lists be
updated every 2 weeks to eliminate personnel already
referred or whose deregistration is required for some lawful
reason pursuant to the national agreement and the
implementing rules. It is not the intention of this
recommendation to preclude registration by an applicant
in any manner heretofore permitted, e.g., in person, by
letter, by telephone or by steward's layoff report. It is
however the intention of this recommendation that
Respondent be required to maintain a record of all such
letters, telephone calls, or stewards' reports for 6 months or
until the individual thus registered has been referred
whichever occurs sooner.
It will be further recommended that the Respondent he
required to post all such referral registers, or that such
books of record be prominently placed in plain view of
applicants for their perusal in Respondent's Dearborn
office or suboffices, if any, as that in Midland.
It will also be recommended that Respondent maintain
records of its exclusive referral operation and make them
available to the Regional Director, upon request 50
And it will be recommended that the Respondent he
required to follow all other provisions of the national
agreement and implementing national and local rules in a
manner that will assure the nondiscriminatory operation of
its exclusive referral system.
Finally, it will be recommended that Respondent make
Clayton Gerard whole for any loss of earnings he may have
suffered because he was discriminatonly denied referral for
employment beginning with the Riley Stoker job on
November 6, 1972, until his referral on May 3. 1973, by
payment to him of the sum of money he would have
earned during this period, less net earnings, if any, during
such period to be computed in the manner prescribed in F.
W. Woolworth company, 90 NLRB 289, with 6-percent
interest thereon as required by Isis Plumbing & Heating
Co., 138 NLRB 716.
i'i. (OACLUSIONS OF LAW
1. Riley Stoker Corporation is engaged in commerce
within the meaning of the Act.
2. Respondent . International Brotherhood of Boiler-
makers, Iron Shipbuilders, Blacksmiths , Forgers and
Helpers Local Lodge No. 169, AFL--CIO, is a labor
organization within the meaning of the Act.
3. Respondent, by the unfair labor practices described
herein, supra, has violated Section 8 (b)(1)(A) and (2) of the
Act.
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
[Recommmended Order omitted from publication.]
50 Iron%orkers Local Union No 290 supra