C. B. Display Service, Inc.

National Labor Relations Board - Board Decisions

Mar 22, 1982

260 N.L.R.B. 1102 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. B. Display Service, Inc. and Billy Floyd Ste-
phens.
Local #631, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America and Billy Floyd Stephens. Cases 31-
CA-9090 and 31 -CB-3318
March 22, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On August 19, 1980, Administrative Law Judge
Richard D. Taplitz issued the attached Decision in
this proceeding. Thereafter, the General Counsel
and the Charging Party filed 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 has
decided to affirm the rulings, findings,' and conclu-
sions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
The Administrative Law Judge found, inter alia,
that Respondent Union had violated Section
8(b)(1)(A) and (2) of the Act by refusing to refer
Ronny Stevens in June 1979 from its exclusive
hiring hall to Respondent Employer because Ste-
vens did not reinstate his lapsed union membership
in a situation where Respondents had no valid
union-security agreement. The Administrative Law
Judge also found that, by demanding that Stevens
pay to reinstate his membership as a condition to
referral, Respondent Union independently violated
Section 8(b)(1)(A) of the Act. Lastly, the Adminis-
trative Law Judge found that Respondent Employ-
er had violated Section 8(a)(3) and (1) of the Act in
June 1979 by knowingly acquiescing in Respondent
Union's illegal conduct and refusing to employ Ste-
vens.
To remedy these violations, the Administrative
Law Judge recommended that Respondents be or-
dered to cease and desist from their unlawful con-
duct. The Administrative Law Judge also recom-
mended that Respondents be ordered jointly and
severally to make Stevens whole for any loss of
wages and other benefits resulting from the unlaw-
'The Charging Party 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 Prod-
urrs Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951). We
have carefully examined the record and find no basis for reversing his
findings
260 NLRB No. 140
ful refusal to refer and hire him. The Administra-
tive Law Judge recommended, however, that the
backpay award comprehend only the amount of
money Stevens normally would have earned as
wages and other benefits from June 15, 1979, the
date he should have begun work, until the date he
normally would have been laid off or terminated at
the completion of the job for which he should have
been hired, less net earnings during that period.
The Administrative Law Judge expressly did not
order that Respondent Union be ordered to refer
Stevens or that Respondent Employer be ordered
to hire him to any further jobs. And the Adminis-
trative Law Judge further denied the General
Counsel's request that Stevens be reimbursed for
the reinitiation fee and a month's dues that he
eventually paid in November 1979 as a condition of
being referred out by Respondent Union. While no
party has excepted to the unfair labor practices
found regarding Ronny Stevens, the General
Counsel excepts to certain aspects of the Adminis-
trative Law Judge's proposed remedy for these
violations. We find merit in certain of these excep-
tions.
1. The General Counsel has excepted to the Ad-
ministrative Law Judge's failure to recommend
that Respondent Union be ordered to give written
notice to Respondent Employer with a copy to
Ronny Stevens that it has no objection to the
hiring of Stevens. We find merit in the General
Counsel's exception since the Board has consistent-
ly required that such notice be given in factually
similar cases.2
2. As noted, the Administrative Law Judge limit-
ed the backpay awarded to Ronny Stevens to the
amount of money less net earnings that he would
have earned in wages and benefits from June 15,
1979, until the date upon which he normally would
have been laid off or terminated from the job for
which he should have been hired by Respondent
Employer. The Administrative Law Judge presum-
ably predicated his backpay award on his finding
that Stevens was ordinarily hired on a job-to-job
basis and was laid off or terminated at the end of
each job. The General Counsel argues, however,
that Respondent Union's backpay liability should
not be tolled until 5 days after Respondent Union
gives notice that it has no objection to the hiring of
Stevens. We find merit in this exception which is in
2 See, e.g., Millwright and Machinery Erectors Local Union No. 740. Dis-
trict Council of New York Citry and Vicinity of the United Brotherhood of
Carpenters and Joiners of America, AFL-CIO (Tallman Constructors, a
Joint ienture), 238 NLRB 159 (1978); Construction and General Laborers'
Union Local 30(4. Laborers' International Union of Vornh America, AFL-
CIO (Wells and Kelly Steel Form Erection Service), 191 NLRB 764 (1971).
1102
C. B. DISPI AY SERVICE, INC
accord with Board precedent. 3 The fact that the
job for which Stevens was denied referral on June
15, 1979, was short term does not end Respondent
Union's liability for subsequent jobs for which Ste-
vens may have been hired but for the unlawful
condition that he reinstate his union membership.
Respondent Union's violation is a continuing one
since it has not yet notified Stevens and Respond-
ent Employer that Stevens' entitlement to employ-
ment may not be conditioned on his reinstating his
union membership. Further, we conclude that Re-
spondent Employer's backpay liability must run
until it offers Stevens employment. 4
3. The General Counsel has excepted to the Ad-
ministrative Law Judge's failure to recommend
that the Board order Respondent Union to reim-
burse Ronny Stevens for the reinitiation fee and
monthly dues he paid Respondent Union in No-
vember 1979. We find merit in the General Coun-
sel's exception.
The Administrative Law Judge found that, in
June 1979, Respondent Union unlawfully refused to
refer Ronny Stevens for employment. The Admin-
istrative Law Judge found that, although Stevens
offered to pay a service fee, Respondent Union de-
manded that he pay a union membership reinitia-
tion fee of $150 plus a month's dues to obtain an
employment referral. Stevens refused to pay the
fees demanded and was not referred for employ-
ment. In November 1979, Stevens returned to the
union hiring hall to obtain an employment referral.
When he tendered the service fee, the union agent
repeated the unlawful condition stated in June. At
that time, Stevens agreed to pay the reinitiation fee
and dues and, in fact, did so.
In refusing to order that Respondent Union reim-
burse Stevens for the fees he paid in November
1979, the Administrative Law Judge noted that the
complaint alleged only violations taking place in
June 1979 and not in November 1979. We con-
' See, e g, International Association of Bridge. Structural. Reinforcing
and Ornamental Iron Workers, Local 75. .4FL-CIO (Bob C Keith. an Indi-
vidual Proprietor d/b/a Tyler Reinforcing), 232 NLRB 1194 (1978); Bar-
nard and Burke, Inc. Construction Division, 238 Nl RB 579 (1978).
'Cf Conductron Corporation, a subsidiary of McDonnell Douglas Corpo-
ration, 183 NLRB 419, 429 (1970)
As noted, the Administrative l.aw Judge concluded that Respondent
Employer hired Stevens on a job-to-job basis. Nonetheless, it is not un-
common in the industry that an employee will be transferred from a com-
pleted project to a new one Hence, while we are aware that, even absent
unfair labor practices, Stevens might have been let go in the normal
course of business at the end of the job, we are not convinced the record
clearly demonstrates this Nor does the record show that if Stevens had
been terminated at the end of the job he would not have been later re-
ferred and hired during the backpas period set out above These are mat-
ters more aptly left to the compliance stage of this proceeding See. gen-
erally, H. S. Brooks Electric, Inc.. K & F Electric Co., Inc, and Waldemar
Nikolai. their agent, 233 NLRB 889 (1977), Amalgamated Meat Cutters
and Butcher Workmen of North America. Local No. 576 (Westfield
Thriftway Supermarket). 201 NLRB 922 (1973): Petersen Construction
Corp., et al., 134 NLRB 1768, 1773 (1961)
elude, however, that reimbursement of the reinitia-
tion fee and a month's dues paid in November is
appropriate and necessary to remedy the June vio-
lations alleged and found. That 5 months passed
before the Union's unlawful June demand was sat-
isfied does not diminish the propriety of this reim-
bursement. The Order's fitness is not predicated on
finding a separate November 1979 violation but in-
stead is necessary to remedy the violation found in
the June demand for such money. 5 Accordingly,
we shall order Respondent Union to reimburse Ste-
vens for the funds he paid in November 1979 plus
interest as stated in the remedy section of this De-
cision.
THE REMEDY
Having found that Respondents have engaged in
certain unfair labor practices, we shall order them
to cease and desist therefrom and to take certain af-
firmative action to effectuate the policies of the
Act.
Having found that Respondent Union unlawfully
refused to refer Ronny Stevens to employment and
that Respondent Employer unlawfully acquiesced
in Respondent Union's action and pursuant thereto
refused to hire him on June 15, 1979, we shall
order that Respondent Union notify Respondent
Employer in writing, and furnish a copy to Ste-
vens, that it has no objection to the employment of
Stevens. Respondent Employer shall also be or-
dered to offer Stevens employment in the job for
which he would have been hired absent the dis-
crimination. Respondents shall be ordered jointly
and severally to make Stevens whole for any loss
of wages and benefits resulting from Respondents'
unlawful refusal to refer and hire him. As stated
above, in the case of Respondent Union, its back-
pay liability shall terminate 5 days after it notifies
Respondent Employer and Stevens that it has no
objection to the employment of Stevens, and, in
the case of Respondent Employer, its backpay lia-
bility shall terminate on the date that Stevens is of-
fered employment.s The amount of backpay shall
I See, e g, Brotherhood of Teamsters & Auto Truck Drivers, Local No.
70. International Brotherhood of Teamsters. Chauffeurs. sWarehou semen &
Helpers of America (Morris Draving Company), 195 NLRB 957 (1972);
Brotherhood of Teamsters & .uto Truck Drivers. Local .Vo. 70, Internation-
al Brotherhood of Teamsters. Chauffeurs, Warehousemen & Helpers of
America (SeaLand of California. Inc.), 197 NLRB 125 (1972).
* We cannot agree with Member Jenkins that the remedy set forth in
Sheet Metal Workers' Union Local 355. Sheet Metal Workers' International
.ssociation. AFL-CIO (Zinsco Electrical Products), 254 NLRB 773 (1981),
is applicable in the circumstances of this case In Zinsco, the Board modi-
fled its remedy in cases where a union acts "in violation of Section
8(b)(l)(A) and (2) of the Act, and there is no culpability on the part of
the employer" The Bosard provided in Zinsco that the respondent union
would be required to make the unlawfully discharged employee whole
fior all losses suffered as a result of the union's discrimination against him
Cointinued
1103
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be computed in the manner set forth in F. W. Wool-.
worth Company, 90 NLRB 289 (1950), with interest
thereon to be computed in the manner prescribed
in Florida Steel Corporation, 231 NLRB 651 (1977).
Having also found that Respondent Union, in
June 1979, unlawfully refused to refer Stevens
unless he paid a reinitiation fee and a month's dues
and that Stevens paid these fees in November 1979.
we shall order that Respondent Union refund to
him any money paid as a result of the unlawful
demand with interest computed as provided in
Florida Steel Corporation, supra. 8
Respondent Employer shall be ordered to pre-
serve and, upon request, make available to the
Board or its agents any and all records necessary
to analyze the amount of backpay due.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied and set out in full below, and hereby orders
that:
A. Respondent Local #631, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Las Vegas, Nevada, its
officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Refusing to dispatch Ronny Stevens or any
other applicant for employment from its exclusive
hiring hall for employment with C. B. Display
Service, Inc., or any other company that uses such
hiring hall, because Ronny Stevens or such other
applicant for employment fails to reinstate his
membership in said Union, under circumstances
where there is no valid union-security clause in
effect.
until the employee is either reinstated by the employer or obtains substan-
tially equivalent employment elsewhere.
In contrast to the situation in Zinsco, here there is "culpability on the
part of the employer." Thus, in the instant case, the Employer was
named as a Respondent and was found to have violated Sec. 8(a)(X3). As
part of the remedy for that violation, we are requiring Respondent Em-
ployer to offer employment to the discriminatee, Ronny Stevens. Under
these circumstances, we believe that Respondent Union's backpay liabili-
ty should terminate 5 days after it withdraws its objection to the employ-
ment of Stevens, as provided above. If at that point Respondent Employ-
er refuses to remedy its own unfair labor practice and employ Stevens,
we believe that it would be inequitable to continue to hold Respondent
Union liable for backpay when it has willingly ceased its past discrimina-
tion. Where there is no respondent employer obligated to employ the dis-
criminatee, Zinsco properly holds that we must look to the respondent
union as the only entity capable of making the injured employee whole.
But we decline to extend the Zinsco remedy to a situation where, as here,
an employer is named as a respondent and is under a remedial duty to
employ the discriminatee.
7 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Member Jenkins would compute the interest due on backpay in accord-
ance with his partial dissent in Olympic Medical Corporation, 250 NLRB
146, 148 (1980).
' Isis Plumbing, supra.
(b) Telling Ronny Stevens or any other applicant
for employment from its exclusive hiring hall that
he will not be dispatched unless he reinstates his
membership in said Union.
(c) In any like or related manner restraining or
coercing employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Notify C. B. Display Service, Inc., in writing,
with a copy furnished to Ronny Stevens, that Re-
spondent Union has no objection to the employ-
ment of Ronny Stevens.
(b) Jointly and severally with C. B. Display
Service, Inc., make Ronny Stevens whole for any
loss of wages or other benefits he may have suf-
fered as a result of the discrimination against him
in the manner set forth in the section of the
Board's Decision entitled "The Remedy."
(c) Refund to Ronny Stevens any money paid to
Respondent Union as a result of its unlawful
demand for the payment of a reinitiation fee and a
month's dues in the manner set forth in the section
of the Board's Decision entitled "The Remedy."
(d) Post at its Las Vegas, Nevada, business of-
fices, hiring hall, and meeting places copies of the
attached notice marked "Appendix A."9 Copies of
said notice, on forms provided by the Regional Di-
rector for Region 31, after being duly signed by
Respondent Union's representative, shall be posted
by Respondent Union 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. Reasonable steps shall be taken by Re-
spondent Union to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Deliver to the Regional Director for Region
31 signed copies of said notice in sufficient number
to be posted by C. B. Display Service, Inc., in all
places where notices to employees are customarily
posted.
(f) Notify the Regional Director for Region 31,
in writing, within 20 days from the date of this
Order, what steps Respondent Union has taken to
comply herewith.
B. Respondent C. B. Display Service, Inc., Las
Vegas, Nevada, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
9 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
1104
C. B. DISPLAY SERVICE, INC.
(a) Acquiescing in the refusal of Local #631, In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, to dis-
patch Ronny Stevens or any other applicant for
employment from its exclusive hiring hall because
Ronny Stevens, or such other applicant for em-
ployment, fails to reinstate his membership in said
Union, under circumstances where there is no valid
union-security clause in effect, or, pursuant to such
acquiescence, refusing to hire Ronny Stevens or
such other applicant for employment.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of their rights guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Jointly and severally with Local #631, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, make
Ronny Stevens whole for any loss of wages or
other benefits he may have suffered as a result of
the discrimination against him in the manner set
forth in the section of the Board's Decision entitled
"The Remedy."
(b) Offer employment to Ronny Stevens in the
job for which he would have been hired absent dis-
crimination.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, 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 Las Vegas, Nevada, facility copies
of the attached notice marked "Appendix B.""o
Copies of said notice, on forms provided by the
Regional Director for Region 31, after being duly
signed by Respondent Employer's authorized rep-
resentative, shall be posted by Respondent Em-
ployer immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent Em-
ployer to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Deliver to the Regional Director for Region
31 signed copies of said notice in sufficient number
to be posted by the above-named Union in places
where notices to members are customarily posted.
(f) Notify the Regional Director for Region 31,
in writing, within 20 days from the date of this
'O See fn. 9, supra.
Order, what steps Respondent Employer has taken
to comply herewith.
IT IS FURTHER ORDERED that those allegations in
the complaint as to which no violations have been
found be, and they hereby are, dismissed.
MEMBER JENKINS, dissenting in part:
I agree with my colleagues that Respondent
Union and Respondent Employer violated the Act
by their actions taken against Ronny Stevens in
June 1979, and that each Respondent should be or-
dered to remedy the violations found in this pro-
ceeding. Contrary to my colleagues, however, I
would not terminate Respondent Union's backpay
liability 5 days after its notification to Respondent
Employer and Ronny Stevens that it has no objec-
tion to Stevens' hire. In Sheet Metal Workers' Union
Local 355, Sheet Metal Workers' International Asso-
ciation, AFL-CIO (Zinsco Electrical Products), 254
NLRB 773 (1981), the Board held that "the proper
and effective realization of the statutory policy ...
requires that a transgressor should bear the burden
of the consequences stemming from its illegal acts."
The majority does not dispute that Respondent
Union unlawfully refused to refer Ronny Stevens
for employment in June 1979 and that this refusal
to refer caused Ronny Stevens not to be hired by
C. B. Display. While Respondent Union was the
motivating force in Ronny Stevens' failure to
secure employment with C. B. Display, my col-
leagues allow Respondent Union to escape further
backpay liability by giving notification that it has
no objection to Stevens' hire. However, since it
was Respondent Union's initial refusal to refer that
set in motion the chain of events that led to Ste-
vens not being hired, I would not toll Respondent
Union's liability for backpay 5 days after tendering
the appropriate notices but thereafter would hold it
secondarily liable to remedy the illegal actions." In
all other respects, I agree with my colleagues' deci-
sion.
" See my partial dissenting opinion in Harsh Investment Corporation
d/b/a The Claremont Resort Hotel and Tennis Club, 260 NLRB 1088
(1982)
APPENDIX A
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to dispatch Ronny Ste-
vens or any other applicant for employment
from our exclusive hiring hall for employment
with C. B. Display Service, Inc., or any other
1105
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
company that uses such hiring hall, because
Ronny Stevens or such other applicant for em-
ployment fails to reinstate his membership in
our Union, under circumstances where there is
no valid union-security clause in effect.
WE WILL NOT tell Ronny Stevens or any
other applicant for employment from our ex-
clusive hiring hall that he will not be dis-
patched unless he reinstates his membership in
our Union.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
their rights guaranteed them in Section 7 of
the National Labor Relations Act, as amended.
WE WILL jointly and severally with C. B.
Display Service, Inc., make Ronny Stevens
whole by paying him backpay, plus interest.
WE WILL make Ronny Stevens whole by re-
funding to him the reinitiation fee and a
month's dues we demanded he pay to be re-
ferred to employment.
LOCAL #631, INTERNATIONAI.
BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND
HEL PERS OIF AMERICA
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILI. NOT acquiesce in the refusal of'
Local #631, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, to dispatch Ronny Ste-
vens or any other applicant for employment
from its exclusive hiring hall because Ronny
Stevens or such other applicant for employ-
ment fails to reinstate his membership in said
Union, under circumstances where there is no
valid union-security clause in effect, nor will
we, pursuant to such acquiesence, refuse to
hire Ronney Stevens or such other applicant
for employment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights guaranteed them in
Section 7 of the National Labor Relations Act,
as amended.
WE WlI.L offer employment to Ronny Ste-
vens in the job for which he would have been
hired absent discrimination.
WE WILL jointly and severally with said
Union make Ronny Stevens whole by paying
him backpay, plus interest.
C. B. DISPLAY SERVICE, INC.
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge:
This case was heard by me in Las Vegas, Nevada, on
January 29, 1980. The charges in Cases 31-CA-9090 and
31-CB-3318 were filed on June 18, 1979, by Billy Floyd
Stephens, an individual. An order consolidating those
cases and a complaint issued on September 18, 1979. The
complaint alleges that C. B. Display Service, Inc., herein
called the Company, violated Section 8(a)(3) and (1) of
the National Labor Relations Act, as amended, herein
called the Act, and that Local No. 631, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Union, violat-
ed Section 8(b)(l)(A) and (2) of the Act.
Issues
The primary issues are
1. Whether the Union violated Section 8(b)(1)(A) and
(2) of the Act by refusing to refer Ronny Stevens and
Billy Stephens for employment with the Company from
the Union's exclusive hiring hall because those individ-
uals were not members in good standing of the Union.
2. Whether the Company violated Section 8(a)(3) and
(1) of the Act oy acquiescing in the Union's conduct and
refusing to hire those individuals.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs
which have been carefully considered were filed on
behalf of the General Counsel and the Union.
Upon the entire record of the case and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF ITHI COMPANY
The Company, an Illinois corporation with an office
and principal place of business in Las Vegas, Nevada, is
a service contractor engaged in the business of installing
exhibits at convention centers. The Company annually
sells and ships goods or services valued in excess of
$50,000 directly to customers located outside the State of
Nevada and annually derives gross revenues in excess of
$500,000. The Company is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
11. THE LABOR ORGANIZATION INVOVEDI
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
1106
C. B. DISPLAY SERVICE, INC.
III. THE ALLEGED UNFAIR I.ABOR PRACTICES
A. Background
The Company and the Union are parties to a collec-
tive-bargaining agreement that is effective from April 1,
1976, through April 1, 1981, and which covers such em-
ployees as display men, decorators, and exhibit builders.
Nevada is a right-to-work State and the contract does
not contain a union-security clause. The contract con-
tains an exclusive hiring hall provision. The Company
obtains its employees through referrals from the hiring
hall pursuant to that provision. ' The hiring hall provision
of the contract states in part:
. . . the selection of workmen for referral to jobs
shall be on a non-discriminatory basis and shall not
be based on, or in any way affected by, union mem-
bership by-laws, rules, regulations, constitutional
provisions, or any other aspect or obligation of
union membership, policies or requirements.
The contract provides and the practice of the parties is
that an employer can request an employee by name and
that employee will be referred by the Union if the em-
ployee had been laid off or terminated by the employer
within 270 calendar days before the request.
The services of the hiring hall are available to appli-
cants if the applicant is a member of the Union or if the
applicant pays a service fee (referred to as a dobie fee)
for the use of the hall. At the times material herein the
dobie fee was $17 and a dobie fee permit was valid for
30 days from the date of payment. During December
and January of each year between 800 and 1,000 people
pay dobie fees. During the remainder of the year about
450 people pay such fees each month.
On June 14, 1979, the Company requested that the
hiring hall refer Ronny Stevens and his three brothers,
Billy, Mark, and Austin Stephens, for employment with
the Company at the Las Vegas convention center at 8
a.m. on June 15, 1979. Ronny Stevens and Billy Stephens
were not referred by the Union or hired by the Compa-
ny. The complaint alleges that the failure to refer and
hire constituted a violation of the Act.2
B. The Incidents Involving Ronny Stevens
1. The facts
Ronny Stevens worked as a convention display laborer
for the last 5 or 6 years on a show-by-show basis. During
that time he has worked for the Company and for other
employers. For each show he has been referred from the
hiring hall on the basis of a request from the employer.
Sometime in 1978 he became a member of the Union.
Prior to his membership he paid dobie fees and received
referrals for work on the basis of his dobie permit. At
the end of 1978, he stopped paying union dues and 3
'The parties stipulated that the Union operates an exclusive hiring
hall
2 Mark Stephens was referred and was hired The complaint does not
allege that Austin Stephens was discriminated against. Counsel for the
General Counsel stated on the record that Austin was not named in the
complaint because he did not qualify under the collective-bargaining
agreement for reference, referral, or priority referral
months later he was suspended from the Union for non-
payment.
For sometime before June 1979, Ronny Stevens was
away from the Las Vegas area. On June 10, 1979, he re-
turned to Las Vegas and on the following day he called
Dennis Birsa, the assistant secretary-treasurer of the
Company, 3 to see whether he could obtain employment
with the Company. Birsa told him that a convention was
coming in on June 14 or 15, 1979, but that he did not
know when the freight would arrive. On June 13 Ronny
Stevens went to Birsa's office. He was accompanied by
his brother Mark Stephens. Birsa told them that he had
them on a callout list which he would send to the Union
and that they could start work on June 14 or 15. From
there Ronny Stevens and Mark Stephens went to the
union referral hall. They arrived there about 1 p.m. The
ordinary procedure for a nonmember of the Union who
does not have a current dobie receipt is to go to the
window in the union office, pay his dobie fee, and re-
ceive a current dobie receipt. The receipt is then taken
to the dispatch window. If the applicant has been re-
quested by an employer or is otherwise eligible for im-
mediate referral the dispatcher then gives a referral slip
to the applicant. Ronny Stevens went to the window at
the union office and spoke to acting dispatcher Gladys
Williamson. 4 Ronny Stevens told Williamson that he
wanted to pay his dobie fees and that he was on the
Company's callout list. She asked him for his last dobie
receipt and he showed it to her. She then said that he
had to pay a reinitiation fee of $150 plus 1 month's dues
because he was a member and that he could not go to
work until he paid it. He said that he did not have the
money and she repeated that he could not go to work
until he paid.
On the following day, June 14, Ronny Stevens called
Birsa and asked whether he should come to work that
day or the next day. He did not tell Birsa what had oc-
curred at the union hall the day before. Birsa replied that
the freight had not come in but that they could go to
work Friday morning at 8 o'clock Also on June 14, Birsa
sent a written request that 16 named individuals, includ-
ing Ronny Stevens and his 3 brothers, be dispatched for
employment with the Company at the convention center
at 8 a.m. on June 15.
At 7:45 a.m., on June 15, Ronny Stevens and his
brothers Billy, Austin, and Mark Stephens went to the
convention center and spoke to Birsa. Ronny Stevens
told Birsa that he (Ronny) and Billy Stephens were not
allowed to pay their dobie fees and could not get refer-
rals. He told Birsa that he tried to pay his dobie fees but
as he was a suspended member the Union required him
to pay a reinitiation fee plus a month's dues in order to
go to work and he could not afford to do that. He also
told Birsa that Austin Stephens had been allowed to pay
his dobies but had not been given a referral and that
Mark Stephens had been allowed to pay his dobies and
a It was stipulated, and I find, that Birsa was an agent of the Company
within the meaning of Sec 2(131) of the Act
4 It was stipulated, and I find, that Gladys Williamson was the Union's
acting dispatcher and was an agent of the Union within the meaning of
Sec 2(1 ) of the Act
1107
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been given a referral to go to work. He asked Birsa
whether Birsa could still use them. Birsa replied that he
had received a phone call from James Rice s who told
him that people without referrals were not to be put to
work. Mark Stephens went to work. Ronny Stevens and
his other two brothers then left.
The next time that Ronny Stevens worked at the con-
vention center was in mid-November 1979.6 At that time
another employer, Greyhound Exposition Services, re-
quested the referral hall to dispatch Ronny Stevens. He
went to the hall and spoke to Gladys Williamson. He
told her that he wanted to pay his dobie fees and she re-
plied that he would have to pay a reinitiation fee of $150
plus 1 month's dues of $19. He agreed to make those
payments in three installments, and she gave him the dis-
patch. Later he made those payments.
2. Analysis and conclusions
The applicable law with regard to the Union's respon-
sibility is set forth in Bricklayers' and Stonemasons' Inter-
national Union, Local No. 8, B.M. & PI. U. of America
(California Conference of Mason Contractors Associations,
Inc.), 235 NLRB 1001, 1005 (1978),' in which the Board
adopted the Decision of the Administrative Law Judge
which held:
An exclusive hiring hall gives a great deal of au-
thority over the hiring process to a union, but such
authority is not in itself violative of the Act.7 How-
ever, under such a hiring hall system a union cannot
lawfully refuse to refer an applicant because of
union considerations unless that refusal is based on a
valid union-security clause.8 A union may lawfully
refuse to refer an applicant in a situation where that
union could, pursuant to a lawful union-security
clause, require immediate discharge of that employ-
ee for failure to pay dues under a contract govern-
ing his employment,9 but the applicant cannot be re-
quired to pay back dues for a period when dues
were not validly required as a condition of employ-
ment. '1
' Local 375. International Brotherhood of Teamsters. Chauffeurs,
Warehousemen and Helpers of America [Los Angeles-Seattle Motor
Expressl v. N.L.R.B., 365 U.S. 667 (1961).
* Seafarers International Union of North America, Atlantic. Gulf
Lakes & Inland Waters Districtr. AFL-CIO (Isthmian Lines Inc.i,
202 NLRB 657 (1973), enfd. 496 F.2d 1363 (C.A. 5, 1974). In addi-
tion, referral may be conditioned on the payment of a reasonable
nondiscriminatory hiring hall fee. Boston Cement Masons and As-
phalr Layers Union No 534 (Duron Maguire Eastern Corp.), 216
NLRB 568 (1975), remanded 526 F.2d 1189 (C.A 1). However,
there is no contention in this case that Waters failed to pay any
"dobie" fees required of him.
a Mayfair Coat & Suit Co., 140 NLRB 1333 (1963)
It was stipulated, and I find, that James Rice was secretary-treasurer
of the Union and was an agent of the Union within the meaning of Sec
2(13) of the Act.
The record does not indicate whether Ronny Stevens made any ef
forts to obtain work at the convention center between June 15 and mid
November 1979
7 See also International Longshoremen's and Warehousemen'i Union.
Local 13 (Pacific Maritime Association), 228 NLRB 1383, 1385 (1977),
enfd. 581 F.2d 1321 (9th Cir. 1978).
iO Cf. Fishermen A Allied Workers' Union, Local 33, Internation-
al Longshoremen's and Warehousemen's Union (S. G. Guiseppe Fish-
ing, Inc.), 180 NLRB 851 (1970), enfd. 448 F.2d 255 (C.A. 9, 1971);
Bricklayers' etc., Local No. 11 (Rochester Floors. Inc.), 221 NLRB
133 (1975).
In the instant case the Company and the Union main-
tained an exclusive hiring hall arrangement both by con-
tract and by practice. Under the terms of the contract
the Union could not use union considerations as a basis
for referral. The dobie fee arrangement for the use of
that hall was lawful. However, Ronny Stevens tendered
his dobie fees and they were rejected. There is no con-
tention that he was denied referral because of a failure to
pay those dobie fees. The uncontradicted evidence estab-
lishes that Ronny Stevens was denied referral because he
was a suspended union member and he refused to pay a
$150 fee to reinstate him to membership and a month's
dues. That denial of referral was based on union consid-
erations. There was no union-security clause in the con-
tract.8 By refusing to refer Ronny Stevens for employ-
ment with the Company on June 15, 1979, the Union
violated Section 8(b)(1)(A) and (2) of the Act.
Assistant dispatcher Williamson's statement to Ronny
Stevens on June 13, 1979, that Stevens could not go to
work unless he paid the $150 reinitiation fee and the
month's dues constituted a separate violation of Section
8(b)(1)(A) of the Act.
The applicable law with regard to the Company's re-
sponsibility is set forth in Bechtel Power Corporation, 223
NLRB 925, 933 (1976), enfd. 597 F.2d 1326 (10th Cir.
1979), in which the Board adopted the decision of the
Administrative Law Judge that held:
Where an employer has contracted to use and
does use a union's exclusive hiring hall, the employ-
er will be held to have violated the Act when the
union unlawfully refuses to refer an applicant be-
cause of union considerations. 8
'i Castleman and Bates, Inc., 200 NLRB 477, enfd 502 F.2d
1161 (C.A I, 1974) As the Second Circuit Court of Appeals held
in Morrison-Knudsen Company, Inc., 275 F. 2d 914 (1960), cert.
denied 366 U.S. 909 (1961):
But regardless of the extent of their knowledge we agree with
the Board that an employer may not avoid liability for viola-
tions of the Act by the hiring hall when he has turned over to
it the task of supplying the men to be employed. The Local
acted as agent for the petitioners in selecting the men to be
hired. Its discriminatory acts, which unlawfully encourage
membership in Local 545, are properly chargeable to the
agent's principal as discnminatory acts by it.
In the instant case the Company undertook, both by con-
tract and practice, to obtain employees through the
Union's exclusive hiring hall. The Company is therefore
responsible for the Union's unlawful refusal to refer
Ronny Stevens for work with the Company. The Com-
pany knew that Ronny Stevens was not referred because
he had not reinstated his membership. Birsa was told that
by Ronny Stevens on June 15. By acquiescing in the
a Such a clause would have been unlawful if it existed because of Ne-
vada's right-to-work law and Sec. 14(b) of the National Labor Relations
Act, as amended
1108
C. B. DISPLAY SERVICE, INC.
Union's unlawful conduct and, pursuant thereto, refusing
to employ Ronny Stevens on June 15, 1979, the Compa-
ny violated Section 8(a)(3) and (1) of the Act.
C. The Incidents Involving Billy Stephens
Billy Stephens worked as a convention decorator for
the Company and other employers for the last 6 years.
He has never been a member of the Union, but he has
been dispatched from the hiring hall on the basis of a
dobie permit on many occasions when he was requested
by an employer. The incidents in question here took
place in mid-June 1979. On at least 20 occasions prior to
that date, he went to the referral hall and paid his dobie
fees. On some of those occasions it was Susan Thom 9
who accepted the fees on behalf of the Union. There is
no contention that he had difficulty in paying the fees or
in receiving referrals before mid-June 1979. There is also
no contention that he was prevented from paying his fees
and receiving referrals after the mid-June 1979 incident.
In early December 1979, he was informed that an em-
ployer had called for him by name and he went to the
union hall, paid his dobie fees, and picked up his clear-
ance. On that occasion he spoke to Susan Thom. Thom
asked him for his previous receipt and he said that he
had lost it. She said that it was all right and asked him
for the dobie fee. He paid her and she gave him a re-
ceipt. From there he went to the dispatch window and
received his clearance. Billy Stephens acknowledged in
his testimony that in the past he had been permitted to
pay his dobie fees even though he did not have his re-
ceipt for the last payment.
The General Counsel contends that on or about June
13, 1979, Billy Stephens tendered his dobie fee to Susan
Thom and that Thom refused to accept it with the result
that Billy Stephens was not dispatched for work with the
Company on June 15. the Union contends that Billy Ste-
phens did not tender his dobie fee and that the Union
never rejected that fee. If the Union's contention is cor-
rect there was no violation of the Act as to Billy Ste-
phens. The dobie fee system was unlawful and if an ap-
plicant for employment who is not a member of the
Union fails to tender the fee for a current dobie permit
the Union has no obligation to dispatch him. Billy Ste-
phens had been using the dobie permit system for many
years and there can be no contention that he was un-
aware of the fact that a dobie fee had to be tendered
before the dispatch would be made. There is a sharp
conflict in testimony on the issue of whether Billy Ste-
phens tendered his dobie fee on or about June 13, 1979.
Billy Stephens testified to the following incident. He
heard that he and his brothers were being called out by
the Company for referral from the hiring hall. On June
13 or 14 °0 he went to the hiring hall to pay his dobie fee
and pick up his clearance. He went to the front window
and spoke to Susan Thom." He told Thom that he had
I Thom was an office clerical and bookkeeper for the Union and part
of her duties was to collect dobie fees
'0 He testified that he went into the hall on Wedensday, June 14
Wednesday was June 13.
" He testified that he could only recall her first name. However, later
in his testimony he identified the person he spoke to as one of the people
sitting in the hearing room. That person was Susan Thom.
lost his last receipt and she told him to talk to acting dis-
patcher Gladys Williamson at the dispatch window. He
went to the dispatch window and told Williamson that
he could not find his last receipt. She told him to go
back to the front window and pay his dobie fees. Instead
of going back to the front window he left the hiring hall
and tried to find his past receipt. He was unable to do so.
He went back to the hiring hall and spoke to Thom a
second time. He told her that he could not find his last
receipt but that he wanted to pay his dobie fee anyway.
He also told her that he had talked to the dispatcher.
Thom told him that he would not be allowed to pay his
fees. He asked her why and she would not give him any
reason. He then went back to the dispatch window and
asked Williamson for clearance. Williamson asked him
for his current receipt and he said he did not have one.
Williamson then said that she could not give him a refer-
ral to go to work. At that point he left the union hall.'2
Thom testified that she did not remember any specific
incident involving Billy Stephens. She adamantly insisted
in her testimony that she never refused to accept dobie
fees from anyone. 13
There is no evidence that Williamson did anything to
unlawfully discriminate aqainst Billy Stephens. Accord-
ing to Billy Stephens' testimony, Williamson told him to
go back to the front window and pay his dobie fee and
she later told him that she would not refer him unless he
had a current receipt. The critical question is whether
Thom refused to accept his dobie fee.
Thom was a convincing witness and in addition many
of the surrounding circumstances lend credence to her
testimony. Billy Stephens had been paying dobie fees and
using the hiring hall for years before the incident in
question and there is no indication that he had had any
problems. He acknowledged that he was permitted to
pay his dobie fees even when he did not have his prior
receipt. After the incident in question he was again per-
mitted to pay his dobie fees and again there was no prob-
lem. Mark Stephens testified that in mid-June he had dif-
ficulty in paying his dobie fees and in receiving a referral
because he could not find his prior receipt. However, he
could not recall who it was who gave him the difficulty
and he was permitted to pay the dobie fee and he did
receive his referral so that he could go to work for the
Company on June 15. Thom credibly testified that her
practice was to ask for the prior receipt in order to assist
her in finding the applicant's records but that if the
person did not have that receipt she wrote down the
name and social security number, found the information
on the office computer, and gave that person a current
receipt. She credibly averred that she sometimes sent the
applicant to the dispatch window to obtain some of the
records but the applicant did not have to possess a prior
receipt in order to obtain a current dobie permit. Billy
Stephens testified that he could think of no reason why
2 As is set fiorth in more detail above with regard to the incident in-
volving Ronny Stevens, Billy Stephens went to the convention center on
June 15 where he was denied employment by Birsa.
a" She averred that the only exception to that was a situation where an
applicant had paid the dobie fees within the past 30 days and there was
no need to pay an additional amount because a valid dobie permit was
outstanding.
1109
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the prior receipt would be useful to the Union other than
to determine whether payment had been made within the
last 30 days. He averred that he was under the impres-
sion that the Union discriminated against him because his
brother Austin got into an argument with one of the girls
at the union hall. However, Austin was allowed to pay
his dobie fees even though Austin was not given a refer-
ral. 4 There is no contention that Billy Stephens was
denied referral because the Union had a dispute with his
brother Ronny Stevens. In the case of Ronny Stevens,
the Union was attempting to require a suspended
member to reinstate his membership before referral. Billy
Stephens had never been a member and he was in the
same category as some 450 other nonmember applicants
who used the dobie fee system at that time of the year.
Billy Stephens testified that on occasions prior to mid-
June 1979 he tried to pay his dobie fee to Thom when he
did not have his last receipt; that Thom then would tell
him to talk to the dispatcher; that the dispatcher would
tell him to pay his dobie fee; and that Thom would then
take his dobie fee. However, he testified that in mid-June
when he tried to pay his dobie fee to Thom without
having his prior receipt she told him to talk to the dis-
patcher, and when the dispatcher told him to pay his
dobie fee he left the union hall to look for his receipt. In
light of his prior experience it is difficult to understand
why Billy Stephens left the union hiring hall to look for
his prior receipt instead of immediately going back to
Thom and tendering her the dobie fee. His testimony
that he left the hiring hall to look for his last receipt
shed some cloud on his credibility.
In sum, I credit Thom rather than Billy Stephens and I
find that the General Counsel has not established by a
preponderance of the credible evidence that Billy Ste-
phens tendered his dobie fee on June 13 or 14, 1979, or
that the Union refused to accept his dobie fee at that
time. I therefore recommend that the portion of the com-
plaint that alleges that the Company and the Union vio-
lated the Act with regard to their treatment of Billy Ste-
phens be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Union and the Company, as set
forth in section III, above, occurring in connection with
the business operations of the Company set forth in sec-
tion 1, above, have a close, intimate, and substantial rela-
tionship to trade, traffic, and commerce among the sev-
eral States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that the Union has engaged in unfair
labor practices within the meaning of Section 8(b)(l)(A)
and (2) of the Act and that the Company has engaged in
unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act, I recommmend that they be
" As is set forth above, Austin Stephens is not alleged as a discrimina-
tee and the General Counsel acknowledged that he was not named in the
complaint because he did not qualify for referral
ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
Having found that the Union unlawfully refused to
refer Ronny Stevens to employment and that the Com-
pany unlawfully acquiesced in the Union's action and
pursuant thereto refused to hire him on June 15, 1979, I
recommend that the Union and the Company be ordered
jointly and severally to make him whole for any loss of
wages and other benefits resulting from that refusal to
refer and hire him by payment to him of a sum of money
equal to the amount he normally would have earned as
wages and other benefits from June 15, 1979, until the
date upon which he normally would have been laid off
or terminated at the completion of the job for which he
should have been hired, less net earnings during that
period. The amount of backpay shall be computed in the
manner set forth in F. W Woolworth Company, 90 NLRB
289 (1950), with interest thereon to be computed in the
mannner prescribed in Florida Steel Corporation, 231
NLRB 651 (1977).'5
As the evidence established that Ronny Stevens was
hired by the Company only on a job-to-job basis and that
he was laid off or terminated at the end of each job, I do
not recommend that the Union be ordered to refer him
or that the Company be ordered to hire him at this time.
The cease-and-desist provisions of the proposed Order
will proscribe any discrimination against him in the
future.
The unfair labor practices found herein occurred in
mid-June 1979. Counsel for the General Counsel, in her
brief, argues that the Union should be required to reim-
burse Ronny Stevens for the $150 reinitiation fee and the
monthly dues he paid the Union on or after mid-Novem-
ber 1979. In her brief, counsel for the General Counsel
contends that the Union's mid-November actions were
violative of the Act. The complaint alleges violations in
mid-June 1979 and does not allege any violations in mid-
November 1979, 5 months later. During the hearing
there was no hint by the General Counsel that reim-
bursement of moneys paid the Union in mid-November
1979 would be requested. There is no indication that the
Union was given any notice that it would have to meet
that contention during the hearing and there is no way
of knowing whether that matter was fully litigated. I
shall not recommend that the Union be ordered to make
those payments to Ronny Stevens.
I further recommend that the Company be ordered to
preserve and, upon request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, timecards, per-
sonnel records and reports, and all other records neces-
sary to analyze the amount of backpay due.
CONCI.USIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
' See, generally, Isis Plumbing d Heating Co.. 138 NLRB 716 (1962).
1110
C. B. DISPLAY SERVICE, INC.
3. By refusing to dispatch Ronny Stevens from its ex-
clusive hiring hall for employment with the Company on
June 15, 1979, because he did not reinstate his member-
ship in the Union by payment of a $150 reinstatement fee
and a month's dues, under circumstances where there
was no valid union-security clause, the Union violated
Section 8(b)(l)(A) and (2) of the Act.
4. By telling Ronny Stevens on June 13, 1979, that he
would not be dispatched unless he made such payments,
the Union violated Section 8(b)(1)(A) of the Act.
5. By acquiescing in the Union's unlawful refusal to
refer Ronny Stevens and, pursuant thereto, refusing to
hire him on June 15, 1979, the Company violated Section
8(a)(3) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
MII