Carpenters Local Union No. 1080

National Labor Relations Board - Board Decisions

Mar 19, 1981

255 N.L.R.B. 80 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lower Ohio Valley District Council of Carpenters,
Millwrights Local Union No. 1080, United
Brotherhood of Carpenters and Joiners of
America, AFL-CIO and Timothy Louis Axley
and Burch & Lamb Corp., Party to the Con-
tract, and Evansville, Indiana, Area and Owens-
boro, Kentucky, Area Mechanical Contractors,
Party to the Contract. Case 25-CB-3998
March 19, 1981
DECISION AND ORDER
On December 1, 1980, Administrative Law
Judge Robert A. Giannasi issued the attached De-
cision in this proceeding. Thereafter, the Respond-
ent filed exceptions and a supporting brief, and the
General Counsel filed a brief in support of the Ad-
ministrative Law Judge's Decision.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Lower Ohio Valley District Council of Carpenters,
Millwrights Local Union No. 1080, United Broth-
erhood of Carpenters and Joiners of America,
AFL-CIO, its officers, agents, and representatives,
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
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.
In finding that the Respondent violated Sec. 8(b)(1)(A) by failing to
deal fairly with Axley's request for information about its referral list, the
Administrative Law Judge relied on Local No. 324. International Union of
Operating Engineers. AFL-CIO (Michigan Chapter. Associated General
Contractors of America. Inc.), 226 NLRB 587 (1976), in which Chairman
Fanning dissented. Chairman Fanning agrees with the Administrative
Law Judge because he finds this case distinguishable from Local No. 324.
where the requested information was given but not in the form in which
it was requested, whereas here, the information was refused without
giving any reason for the refusal. Cf. Laborers' International Union of
North America. Local 252. AFL-CIO (Seattle and Tacoma Chapters of the
Associated General Contractors of America. Inc.), 233 NLRB 1358. fn. I
(1977).
2 We agree with the Administrative Law Judge that the Respondent,
in failing to refer Axley, did not act in reliance on an incident in which
Supervisor Dale Goodman allegedly laid off Axley and another employee
for taking too long to perform a particular job. We do not adopt the Ad-
ministrative Law Judge's finding that the incident was "fabricated after
the fact." While this incident apparently occurred, there is no credited
evidence that the Respondent knew of it before the date of the hearing
herein.
shall take the action set forth in the said recom-
mended Order, as so modified:
1. Delete from paragraph (b), the word "reason-
ably" where it appears before the final words, "re-
lated to the failure to refer a particular applicant."
2. Delete from paragraph 2(b), the word "reason-
ably" where it appears before the final words, "re-
lated to the failure to refer a particular job referral
applicant."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE
To ALL MEMBERS AND OTHER APPLICANTS
FOR JOB REFERRALS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT operate our exclusive hiring
hall in a manner which discriminates against
job referral applicants because they are not
members of Lower Ohio Valley District
Council of Carpenters, Millwrights Local
Union No. 1080, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO.
WE WILL NOT arbitrarily refuse to provide
job referral applicants with copies of the
names, addresses, and telephone numbers of
employees on our referral list and their dates
of layoff where such information is related to
our failure to refer such applicants.
WE WILL NOT refuse or fail to refer Timo-
thy Louis Axley or any other qualified job re-
ferral applicant through our exclusive hiring
hall because such applicant is not a member of
Lower Ohio Valley District Council of Car-
penters, Millwrights Local Union No. 1080,
United Brotherhood of Carpenters and Joiners
of America, AFL-CIO.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
their rights under Section 7 of the Labor Act.
WE WILL make Timothy Louis Axley whole
for any loss of pay, plus interest, he may have
suffered because of our discrimination against
him because he was not one of our members.
WE WIll maintain permanent records of our
hiring and referral operations which will be
255 NLRB No. 14
80
CARPENTERS LOCAL UNION NO. 1080
adequate to disclose fully the basis upon which
referrals are made and, upon request, make
those records available to the National Labor
Relations Board and to job referral applicants
where such information is related to the failure
to refer a job referral applicant.
WE WILL inform all job referral applicants
that we maintain an out-of-work or referral
register in connection with our exclusive
hiring hall, which is and will be available to all
qualified applicants whether or not they are
one of our members.
LOWER OHIO VALLEY DISTRICT
COUNCIL OF CARPENTERS, MILL-
WRIGHTS LOCAL UNION No. 1080,
UNITED BROTHERHOOD OF CARPEN-
TERS AND JOINERS OF AMERICA,
AFL-CIO
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge:
This case was heard on June 23 and 24, 1980, in Evans-
ville, Indiana. The complaint alleges that Respondent
violated Section 8(b)(1)(A) of the National Labor Rela-
tions Act, as amended, herein called the Act, by operat-
ing an exclusive hiring hall in a discriminatory manner,
by failing to refer Timothy Louis Axley for employment
since July 1, 1979, because of his nonmembership in Re-
spondent and for other unlawful reasons, and by refusing
to provide Axley with information concerning Respond-
ent's referral register. Respondent denied the essential al-
legations in the complaint. The parties filed briefs.
I The complaint alleges that the operation of the hiring hall and the
failure to refer Axley were violative of the Act not only because they
were discriminatory on the basis of lack of membership in Respondent,
but also because of other unspecified arbitrary and discriminatory criteria,
including "adherence to the desires and policies of the officers of the Re-
spondent." This latter theory was not developed or articulated at the
hearing and indeed seems to have been abandoned by counsel for the
General Counsel nor was it presented in the brief of the General Counsel
which was limited to esablishing that the referral procedure, in general
and as specifically applied to Axley, discriminated against nonmembers.
Although the brief alludes to the confusing testimony of Respondent's of-
ficials concerning operation of the referral system, the General Counsel
did not contend that Respondent utilized any unlawful criteria other than
union membership in referring workers. There was no reference in the
brief to the line of cases which establish a violation by virtue of a union's
operation of an exclusive hiring hall without any objective criteria or
standards. See Local 394. Laborers' International Union, 247 NLRB No. 5,
fn. 2 (1980).
I do not believe such a theory was fully or adequately litigated on this
record notwithstanding the broad language of the complaint. Certainly
the parties did not focus on this theory. In any event, were I to reach the
issue, I would conclude that the General Counsel had not proved the al-
legations by a preponderance of the evidence. The hiring hall was estab-
lished by contract and ostensibly operated in accordance with the objec-
live standards set forth in the contract. Moreover, Respondent did utilize
referral slips, work ledgers, and an out-of-work or referral register which
purported to follow the contractual referral procedure. Although the tes-
timony of Respondent's representatives, Keown and Rideout, indicated
that the referral procedure was operated in a less than precision-like
manner, their testimony was very unclear and ambiguous. They testified
Upon the entire record, including the testimony of the
witnesses and my observation of their demeanor, I
hereby make the following:
FINDINGS OF FACT
I. THE LABOR ORGANIZATION
Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Facts
1. Background: operation of the hiring hall
Respondent is a millwright local and one of five locaJ
unions which comprise the Lower Ohio Valley District
Council of Carpenters. The remaining four local unions
are carpenter locals. Respondent has about 170 members.
The Council has about 750 members. Respondent is a
signatory to collective-bargaining agreements with the
Evansville Area and Owensboro Area Mechanical Con-
tractors. The agreement for the period May 30, 1979, to
April 30, 1980, contains a hiring procedure which has
been in effect for many years and was retained in the
parties' new agreement which was recently negotiated.
During the past few years Respondent has contracted
with four major local contractors: Burch & Lamb Corp.,
Lloyd Mechanical Erection, Harpe & Sons, and Brunner
Mechanical Erection.
The contract provides for a referral procedure and an
exclusive hiring system operated by Respondent. 2 Arti-
cle III of the contract reads as follows:
that they accommodated employers who recommended nonmembers for
employment or who asked for referrals by name or by skill. In and of
itself, this evidence does not controvert the contractual procedure or es-
tablish nonadherence to objective criteria. Likewise, evidence that Ri-
deout, particularly, referred employees from his home on an emergency
basis or referred people without also filling out a referral slip is insuffi-
cient to establish a violation. There is no evidence that such referrals
were incompatible with the objective procedure established in the con-
tract, except insofar as they discriminated against nonmembers of Re-
spondent. On that point, Respondent's apparent failure to make available
to nonmembers its out-of-work or referral register is best resolved in the
context of the issue of whether Respondent discriminated against non-
members. Accordingly, I would conclude that the General Counsel has
not established by a preponderance of the evidence that the referral pro-
cedure in general or as it impacted on Axley was violative of the Act
because it was operated in an arbitrary manner or in the absence general-
ly of objective criteria.
2 Although Respondent made a feeble argument at the hearing to the
effect that, despite the contractual language, its hiring system was not ex-
clusive. it has not repeated this contention in its brief. Its brief contains
arguments that Respondent was required by the contract to furnish com-
petent journeymen and to permit the employers, under certain circum-
stances, to request individuals by name or skill. Thus, Respondent essen-
tially relies on the contractual provisions governing the operation of the
hiring system to argue that it was not operated discriminatorily. The evi-
dence, however, fully supports the finding, which I make, that the hiring
system was operated as an exclusive hiring hall in accordance with the
contract. Notwithstanding that employees were sometimes recommended
for hire by the employer or that the employer asked for particular em-
ployees by name or skill, the employers called the Respondent prior to
hiring any employees. Kenneth Butler, vice president of Burch & Lamb.
made this clear in his testimony. He has never hired people on his own.
He testified. "i deal through the Local." Other employer representatives
testified essentially to the same effect.
81
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hiring Procedures
District Council United Brotherhood of Carpen-
ters and Joiners of America agrees to furnish com-
petent Journeymen selected for reference to jobs
upon a non-discriminatory basis, such furnishing to
be made upon request of the Employer and with the
Employer retaining the right to reject or accept the
applicants for employment.
I. The District Council shall establish and main-
tain open and non-discriminatory employment lists
for the use of individuals desiring employment.
2. All individuals desiring employment shall reg-
ister at the District Council office by appearing per-
sonally and shall indicate name, address, telephone
number and Social Security account number, quali-
fications and type of work desired.
3. Employers shall first call upon the District
Council and submit job orders. District Council
then calls the Local Union having area jurisdiction
of work indicating the number of individuals de-
sired, qualifications of each individual, and location
of the job, and the reporting date and time. If an
Employer requests individuals by name pursuant to
Section 5, hereof, he shall advise the District Coun-
cil of the location of the last job worked and the
termination date thereof, with respect to such indi-
viduals. Job orders shall be submitted not less than
forty-eight (48) hours (Saturdays and Sundays and
recognized holidays excluded) prior to the hour
when the Employer wishes them to report for
work.
4. If the District Council is unable to refer the
number of individuals desired within forty-eight
(48) hours after the submission of such job order,
the Employer may procure additional Employees
up to the desired number from any other source,
provided however, that the Employer shall immedi-
ately notify the Local Union of the names of the
Employees hired and the job location.
5. Individuals available and qualified to fill the
job order shall be referred in the following order:
(a) First, individuals in the order of their regis-
tration who within two (2) years immediately
preceding the job order performed work of the
type covered by the Collective Bargaining
Agreement in the geographical area of the Local
Union.
(b) Next, all other individuals, in the order of
their registration.
(c) Provided, an Employer may request by
name individuals formerly employed by him on
work performed in the geographical area of the
District Council, who within two (2) years imme-
diately preceding the job order performed work
of the type covered by the Collective Bargaining
Agreemment in the geographical area of the Dis-
trict Council.
6. Available for employment means that the indi-
vidual shall be currently registered and shall be
either present at the Local Union office or present
at a location where he can be reached by telephone.
7. Dispatching hours shall be from 7:30 a.m. to
10:00 a.m. daily. (Saturdays, Sundays, and recog-
nized holidays excluded)
8. Each individual, upon being referred, shall re-
ceive a referral slip to be transmitted to the Em-
ployer representative at the job site.
9. To insure the maintenance of the registration
list, all individuals shall re-register as soon as possi-
ble after the termination of their current employ-
ment.
10. Individuals shall be removed from the regis-
tration list for the following reasons:
(a) When an Employee is dispatched to job-
except that any individual who is rejected by the
Employer, or fails to complete two (2) full days
work shall retain his position on said list.
(b) Failing to accept suitable employment one
(1) time during the current week at the time of
dispatch. Employment which cannot be reached
by an individual because of lack of transportation
shall not jeopardize his standing on the Employ-
ment list.
(c) Any individual dispatched to a job who
fails to report to work.
Individuals removed from the registration list
must re-register promptly in order to be considered
available for employment.
11. Any individual who believes he has been dis-
criminated against with respect to the operation of
these procedures shall be entitled to appeal there-
from within twenty-four (24) hours of the alleged
discrimination by filing in writing with an impartial
arbitrator, selected by the Local Union and the Em-
ployer.
12. The impartial Umpire shall consider the
appeal and render a decision which shall be final.
He is authorized to modify any provisions of these
procedures.
13. A copy of procedures shall be posted at the
Local Union Office and at each job site covered by
the Collective Bargaining Agreement.
The foregoing is applicable in all jurisdictions
subject to the Taft-Hartley Act.
In effectuating its referral procedure, Respondent uti-
lizes an out-of-work book or referral register which is lo-
cated at its Owensboro office. Employees sign the regis-
ter along with their date of layoff. There is a separate list
for apprentice members of Respondent. There is no other
book or register whereby out-of-work employees can
notify Respondent of their status and of their availability
for work.
Employees are referred generally in order of their ap-
pearance in the referral register by either Respondent's
representatives, J. C. Keown, Charles Lanny Rideout, or
the secretary, Connie Puckett. Puckett makes most of the
referrals. According to Keown, she is the only person in
the office at all times and she "runs" the office "most of
the time." She is fully knowledgeable of Respondent's
referral procedures and answers incoming calls. She also
issues working permits to employees who are not mem-
82
CARPENTERS LOCAL UNION NO. 1080
bers of Respondent. In these circumstances, I find that
Puckett is an agent of Respondent within the meaning of
Section 2(13) of the Act.
There is testimony, primarily from Keown and
Rideout, that employers with whom Respondent has
contracts often call Respondent not only for a specific
number of men for a job but also for specific named indi-
viduals and for people with specific skills. The contract
requires Respondent to provide qualified employees, but
it also provides that requests by employers of named em-
ployees be for individuals formerly employed by them
who within the prior 2 years performed millwright work
in the jurisdiction. However, the evidence shows that
often an employer will call Respondent and recommend
the hiring of a particular individual who is not a member
of Respondent or otherwise known to Respondent. In
such a case Respondent invariably refers the recom-
mended individual and takes care that the individual ob-
tains a working permit for which he pays a fee.
Referrals are memorialized by referral slips which are
usually issued by the secretary pursuant to referrals made
by either Keown or Rideout and in accordance with
contractual referral procedures, including reference to
the referral register. Referrals are also found in ledger
books kept by Respondent for the purpose of recording
working assessments. Such assessments are paid by each
employee who works for a covered employer for over 2
days. The ledger books show not only the referral dates,
as do the referral slips, but also the layoff date. Individ-
uals who sign the referral register also place their layoff
date in that book.
Portions of Respondent's referral register were placed
into evidence. The entries for late 1978 and most of 1979
show over 100 names, most of whom were referred.
Only five of those individuals, excepting apprentices, do
not also appear on Respondent's membership list. There
is no indication as to whether the others were travelers
from other jurisdictions, i.e., members of other mill-
wright locals, or members of other carpenter locals
which comprise the District Council.3
The above figures support the inference that the refer-
ral register was utilized only for members who were out
of work. This inference is supported by other evidence.
Tim Axley, a permit man, spoke to Puckett and she told
him there was no list for permit men to sign for work.
Both Keown and Rideout spoke to Axley during periods
when he was seeking work and they admittedly never
told him about the existence of an out-of-work or refer-
ral register. Keown himself first identified the referral
register as being for members. He later changed his testi-
mony and both he and Rideout were ambiguous and eva-
sive in testifying about the availability of the register to
nonmembers to indicate their desire for work. In these
circumstances, and considering the specific evidence con-
cerning the refusal and failure to refer Tim Axley, a
s of the five nonmembers, Rudd Hale and Kenny Beckman sometimes
had the notations "will call" after their names. Micky Hall appears once
on the out-of-work list. A person named Horn had the notation "suspend-
ed 1-31" after his name. Tony Owens shows up on several occasions with
the notation "will call" after his name. There is an individual on the
membership list named Herbert Owens. It is unclear whether this is the
same person as Tony Owens or whether they are related.
permit man and a nonmember of Respondent, I find and
conclude that Respondent's referral register, from which
it referred millwrights pursuant to its exclusive contrac-
tual referral procedure, was generally available only to
members of Respondent and was not generally available
to permit men and nonmembers.
There is also testimony from Kenny Butler, vice presi-
dent of Burch & Lamb, that he had an understanding
with Respondent's officials Keown and Rideout that the
order of layoff on a particular job would be as follows:
(I) white card men, whom he identified as belonging to
no union; (2) permit men whom he identified as being
members of other millwright locals; and (3) members of
Respondent. Support for this testimony comes from Dale
Goodman, a supervisor for Burch & Lamb, who testified
that he had never laid off bookmen while permit men
were retained. Keown and an employer representative,
Don Lloyd, disputed this testimony. Lloyd said he had
laid off members before white card men, but he did not
elaborate. His testimony is suspect because later, on
cross-examination, he conceded he had no way of know-
ing whether an individual was a permit man or a white
card man. He also exhibited, in my view, a propensity to
support Respondent's position when he testified in an ex-
aggerated manner as to the numbers of individuals he re-
quests from Respondent by name. Keown professed sur-
prise at Butler's testimony and denied any such arrange-
ment. I credit Butler who appeared to me to be an
honest witness who had no real interest in the outcome
of this proceeding. Keown, on the other hand, was eva-
sive on this and other issues. His answers to Butler's tes-
timony were an unresponsive quip that "I don't think
Mr. Butler knows when a layoff is going to occur" and
an equally unresponsive and quixotic statement that "he
has laid off as many as 10 people on one job and has
called the hall for five on another job." Keown's testimo-
ny that the referral register was available to Axley was
equally evasive and unbelieveable. Accordingly, I credit
Butler's testimony that Respondent had a discriminatory
layoff policy which gave preference to members and
which was enforced among employers with whom Re-
spondent had contractual relations.
2. The treatment and employment history of Tim
Axley
Tim Axley was initially referred by Respondent to a
job with Burch & Lamb after Burch & Lamb's supervi-
sor, Larry Luttrull, Axley's half brother, recommended
him for employment. Someone from Burch & Lamb
called Respondent's office and Respondent agreed that
Axley could be hired. Axley went to Respondent's office
in Owensboro to pick up his working permit and referral
slip. He also made appropriate payments to Respondent
for the working permit and a special assessment. At his
first job, Axley, who had been an aviation mechanic in
the Navy, performed various functions including weld-
ing. He provided his own handtools. When he was laid
off in late September or early October, he called Re-
spondent's office and the secretary told him there was no
work available.
83
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Axley was referred by Respondent on October 3,
1978, to a job for Acco Construction Company. He
worked for a few days and was laid off. He again called
Respondent's hall for work, and, after about a 10-day
hiatus, was referred to a job for Burch & Lamb. He
worked until January 10, 1979, for Burch & Lamb at
various jobsites. He performed general duties, but also
precision work and welding. After another layoff, he
was again referred by Respondent to Brunner, receiving,
as in all referrals, a referral slip and a work permit.
Axley paid all fees, dues, and assessments required of a
so-called permit man, that is a person who worked out of
Respondent's jurisdiction who was not a union member.
He never joined Respondent.
Axley was laid off from Brunner on February 27,
1979. He was not referred again by Respondent until
July 31, 1979. Many other individuals were referred by
Respondent during this period. Axley called Respond-
ent's office, as he had in the past, and talked to Respond-
ent's secretary, Connie Puckett. He called three or four
times a week beginning on the Monday after he was laid
off. In this respect, Axley's testimony is corroborated by
documentary evidence of long-distance calls from his
home to Respondent's office in Owensboro. In response
to his inquiries about referrals, Puckett told him that
"book men" were "on the bench" and that "permit men"
like Axley could not be referred until after the "book
men." Another permit man, John Holloman, Axley's
cousin, testified that he received the same response from
Respondent's secretary when he called the office. On
one occasion, Axley asked if there were a book which
permit men could sign to get referrals and Puckett re-
plied there was no such book. This testimony was not
contradicted. Puckett was not called by Respondent as a
witness.
Axley went to Wyoming on May 11, 1979, to look for
work. He returned on June 30, 1979. Upon his return, he
resumed his calls to Respondent's office for work. He re-
ceived the same reply from Puckett or whoever an-
swered the phone, namely, that there was no work, that
book men were "on the bench," and that permit men
could not be referred until after the book men were re-
ferred.
On July 31, 1979, Axley called Vice President Kenny
Butler of Burch & Lamb. He told Butler he was looking
for work and asked if Butler needed any help. Butler
said he did and he agreed to call Respondent on Axley's
behalf. Shortly thereafter and as a result of Butler's re-
quest, Axley was referred by Respondent to a Burch &
Lamb job. He worked for a couple of weeks and then
was laid off. He was referred once again for 3 or 4 days
but was finally laid off for the last time on August 20,
1979. Thereafter, Axley continued, as before, to call Re-
spondent's office and he received the same response from
Puckett as he had in earlier calls, namely, that there
were "book men on the ben.:h" and thus there was no
work for him. In early October, Axley went to Respond-
ent's office in Owensboro with his father. He talked to
Rideout about Respondent's failure to refer him. Rideout
said he received complaints whenever he failed to put a
permit man to work.
3. Axley's attempt to obtain information
In early November 1979, Axley called Respondent's
office and asked Puckett for a copy of the applicable col-
lective-bargaining agreement. She said there was only a
limited supply available and that they were for members
only. Later in November, he wrote a letter to Respond-
ent requesting a copy of the contract and Respondent re-
sponded by letter that there were limited copies and
failed to provide him a copy.
On January 10, 1980, Axley prepared and mailed a
letter to Respondent requesting information concerning
the names, addresses, and phone numbers of all employ-
ees on Respondent's referral list together with their dates
of layoff. Respondent replied that it could not provide
such information and the information was never pro-
vided. At the hearing, Respondent did not deny receiv-
ing the letter and did not give any reason for failing to
provide Axley with the requested information.
Axley was never referred by Respondent from August
20, 1979, to the time of the hearing in this case.
4. Documentary evidence of referrals during
periods when Axley was looking for work
Documentary evidence showed that many members of
Respondent who were laid off after Axley in 1979 were
referred to jobs by Respondent at times when Axley was
available for work but was not referred despite his fre-
quent calls to Respondent's office. The evidence also
showed that other individuals who were apparently
members of other unions or other locals were also re-
ferred during these periods. Burch & Lamb Vice Presi-
dent Butler testified that his firm had work available
after August 20, 1979, of the type for which Axley was
qualified. Some of the documentary evidence is set forth
below.
Documentary evidence, including referral slips and en-
tries in the referral register and the ledger, shows that
the following members were referred during the period
Axley was seeking work even though they were laid off
after Axley:
Name Date of Layoff
Michael Dickinson
John Bell
Ronald Goetz
Garmon Porter
H. T. Kennedy, Jr.
David E. Isabell
Hugh W. Harper
Date of
Referral
3/2/79 3/5/79
3/6/79 3/7/79
3/14/79
3/14/79
between 2/28 &
3/7/79
between 2/28 &
3/12/79
3/12/79
3/12/79
3/12/79
Tony Gist
Ronnie Pope
Tom Morris
Howard Moran
Steve Sunderland
3/12/79
3/15/79
3/8/79
3/12/79
3/12/79
3/7/79
3/12/79
3/14/79
3/14/79
3/14/79
3/20/79
3/20/79
3/14/79
3/21/79
3/17/79
3/17/79
3/17/79
84
CARPENTERS LOCAL UNION NO. 1080
Name Date of Layoff Date of
Jerry L. Tudor 3/22/79 3/22/79
These members were laid off subsequent to Axley and
referred while he was seeking employment. Respondent
has not established that any of them were requested by
name. The parties stipulated that Ronnie Pope had not
been referred to Burch & Lamb, where he was referred
on March 21, 1979, in the 2-year period prior to March
19, 1979.
The March 1979 referrals also show the referral of at
least seven individuals4 who do not appear on the refer-
ral register, but who appear to be members of other local
unions. Their names, with the exception of Miller, appear
on Respondent's ledger with the notation of a number on
the left-hand side which appears to be the number of a
local union. Except for Miller, none of these individuals
had been referred by Respondent in the years 1977, 1978,
or 1979. 5 Thus, it was not contractually permissible for
the employer to request them by name.
Referral information concerning individuals referred
for work in July 1979 shows the following members
were referred even though the documentary evidence
shows they were laid off after Axley:
Name
Terry Tudor
John Bell
Michael Ziemer
(apprentice)
John Strobel, Jr.
Billy Strobel
Richard Jones
Corbitt Rather
Gary C. Popp
Larry Moore
Elwood Rogers
Darryl Warren
Jerry Jackson
Tony Gist
Leonard Sigler
Dinzle Rogers
Date of Layoff
7/3/79
6/20/79
7/20/79
7/19/79
7/20/79
7/23/79
7/25/79
7/25/80
7/25/79
7/6/79
7/5/79
7/11/79
7/16/79
7/19/79
Date of Referral
Axley was not referred until July 31, 1979, and then only
after he had called Butler who in turn apparently asked
for Axley. Respondent did not show that any of these
employees were requested by name. The parties stipulat-
ed that Terry Tudor had not been referred to Logan
Conveyor, where he was referred July 5, 1979, in the
4 Toney Embrey, referred 3/5; William Rigdon, referred 3/5; Tim
Lamb, referred 3/5; Carl Muffett, referred 3/14; Larry Miller. referred 3/
14; Wmin. Case, referred 3/14; and George Boone, referred 3/21.
5 Their names appear on a document, Jt. Exh. 2. which states that they
were not referred in 1977 or 1978 and the 1979 ledger sheets do not list a
prior referral in 1979.
prior 2 years. Thus, he could not have been referred,
under the contract, on the basis of a request by name.
The July referrals also show two individuals who
appear to be members of other local unions. Their names
did not appear in the referral register but they were re-
ferred in July 1979. Robert Hodge and M. L. McIntyre
have Georgia addresses and the notation "Local #256"
on their ledger sheets. Neither had been referred by Re-
spondent in 1977, 1978, or in 1979 previous to their July
referrals to Burch & Lamb. Their referrals thus could
not have been permissible requests by name.
Similar referral patterns appear in documentary evi-
dence showing the referral of Respondent's members in
late August, September, and early October at times when
Axley was looking for work. In addition, McIntyre and
Hodge, members of other locals, continued to be re-
ferred during this period even after their layoffs on
August 21, 1979. Hodge was referred to a job on August
28 and McIntyre on September 5. Axley, who had been
laid off earlier, on August 20, was not referred despite,
as the record shows, his calls to Respondent on August
27, 30 and September 4, 1979.
B. Discussion and Analysis
It is well settled that a union violates Section
8(b)(1)(A) if it operates an exclusive hiring hall in a fash-
ion which discriminates against nonmembers. See Iron
Workers Local Union No. 290, International Association of
Bridge, Structural and Ornamental Iron Workers, AFL-
CIO (Mid-States Steel Erection Company, et al.), 184
NLRB 177 (1970), enfd. 443 F.2d 383 (6th Cir. 1971);
United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States
and Canada, Local 633, AFL-CIO, 178 NLRB 398, 399
(1969), enfd. 436 F.2d 1386 (6th Cir. 1971).
In the instant case, the evidence shows that Respond-
ent operated its hiring hall in a discriminatory fashion.
Respondent's agent Puckett made clear in responses to
Axley's inquiries for work that permit men, that is, non-
members, could not be referred as long as "book men,"
members, were "on the bench." This was repeated not
only to Axley, but also to Holloman, Axley's cousin,
who also called Respondent's office for work. Respond-
ent's own records show that Axley was not referred and
members who were laid off after him were referred. In
addition, Puckett told Axley there was no procedure
whereby a permit man could sign an out-of-work book.
Keown's testimony concerning the unavailability of the
referral register for nonmembers and his failure to even
mention the existence of such a register to Axley when
he spoke to Axley on several occasions when Axley was
looking for work confirms that it was utilized only for
union members. The notations in the register itself for
late 1978 and most of 1979 illustrate that few, if any,
nonmembers signed the book. Finally, Respondent's
policy of forcing employers to lay off nonmembers
before union members establishes a discriminatory
motive in employment matters which confirms the other
evidence of discriminatory referrals. In these circum-
stances, I find that Respondent violated Section
8(b)(1)(A) of the Act, as alleged in the complaint, by op-
85
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
erating a referral procedure which discriminated against
nonmembers.
The evidence discussed above also establishes a viola-
tion of the Act with respect to the failure to refer Tim
Axley from July 1 to July 31, 1979, and after August 20,
1979. Axley made numerous calls to Respondent's office
asking for work and was told of Respondent's discrimi-
natory referral policy. In addition, documentary evi-
dence shows that numerous members of Respondent who
were laid off after Axley were referred during the period
he was seeking referrals. Although some may have been
requested by skill and by name it is unlikely that all of
them were. Significantly, Respondent has failed to show
that this was the case in any of the referrals of union
members. Moreover, the evidence shows that some of
the members could not have been requested by name
under the collective-bargaining agreement because they
had not worked for the employer within the prior 2
years. Indeed, it appears that even members of other
local unions were referred in advance of Axley during
periods when he was seeking referrals. 6
Respondent defends the allegation that it discriminated
against Axley on two grounds: First, that employers re-
quested individuals by name or skill and thus Axley was
not referred, and, secondly, that he was not a qualified
millwright. Both contentions are without merit.
Respondent has failed to show that any of its referrals
during the periods when Axley was seeking work was a
response to a request for a named employee or a particu-
lar skill which would be permissible under the collective-
bargaining agreement. There was no specific showing
that employees assigned in preference to Axley were re-
quested by name. All Respondent has shown is that, as a
general matter some employers do, at times, request em-
ployees by name or by skill. Three employer witnesses
testified concerning requests by name. The testimony of
Kenneth Butler, who was the most reliable of the three
and who testified candidly and in detail, said that when-
ever he would call the union hall for a referral he would
get the man from the top of the list. The testimony of
the other two employer witnesses, on which Respondent
chiefly relies, was less reliable and does not even support
Respondent's position as a general matter. Wendel Harpe
testified that since January 1979 he had not asked for em-
ployees by name because of the contractual requirement
that they must have worked for the Employer in the past
2 years. Don Lloyd did testify to asking for individuals
by name on direct examination, but, on cross, he conced-
ed that on an upcoming project which required 50 mill-
wrights about 28 would not be called for by name. Nor
was Respondent's Representative Rideout's testimony re-
liable. His assertion that at times local contractors would
call for individuals by name 75 percent of the time was
self-serving and unsupported by any other believable wit-
6 Some of the evidence of discriminatory referrals related to periods
prior to July 31, 1979, when Axley was last referred to Burch & Lamb.
The evidence shows that Axley was available for employment between
February 27, 1979, when he was laid off, until July 31, except for the
period he was in Wyoming in May and June 1979. The complaint alleges
a violation for the failure to refer after July 1, 1979. Evidence of discrim-
ination prior to July 1, 1979, is relied on as background to show Re-
spondent's discriminatory conduct in July 1979 and after August 20,
1979.
ness. His testimony on this point was also generalized,
conclusory, and ambiguous. In any event, none of the
testimony showed that the referrals which were made
during the period Axley was seeking work were contrac-
tually permissible referrals by name or skill.
Respondent's contention that Axley was not referred
because he was not qualified is also without basis. Re-
spondent first attacked the adequacy of Axley's tool
complement. However, Rideout admitted that he re-
ceived many reports from his stewards that journeymen
and other millwrights lacked tools. Nor is there any evi-
dence that any employer complained to Rideout or any
other official of Respondent about any perceived tool de-
ficiency on Axley's part. Indeed, although Respondent
attempted to show Axley was not a competent mill-
wright, it failed to establish that any employer com-
plained about Axley's work to Respondent until the de-
velopment of this litigation. Rideout claimed that he was
told by a Burch & Lamb supervisor, Dale Goodman,
that Axley and another employee, Lohman, a member of
the District Council, had taken too long to perform a
particular job and were laid off for that reason. This tes-
timony was exposed as false when Goodman denied he
told anyone-not Rideout and not even Axley-why
these employees were laid off until the day of the hear-
ing in this case. Nor is it likely that the layoffs were for
such reason since Lohman was referred to Burch &
Lamb within a few days of the alleged work deficiency.
I perceive this alleged incident was fabricated after the
fact, but, in any event, Respondent was not notified of it.
Nor was Axley told by Respondent or its officials of his
alleged lack of competence even though he called Re-
spondent's office numerous times and talked to Keown
and Rideout during this period of time. What he was
told was that he could not be referred because there was
no work, and, when there was, bookmen would be re-
ferred before him. Finally, even assuming, as Respondent
alleges, that Axley was qualified only for unskilled or
"bullwork," the testimony of three employers, Harpe,
Lloyd, and Butler, indicates that over half of their jobs
required such workers. Butler testified quite clearly that
after August 1979, when Axley was seeking work, Burch
& Lamb had work of the type Axley could perform.
Butler also testified that he had never turned down a re-
ferral of Axley and was not dissatisfied with his work. In
short, Respondent has failed utterly to show that it failed
to refer Axley because he was not a competent employ-
ee.
Finally, it is uncontested that Respondent failed to
provide Axley with requested information concerning
the collective-bargaining agreement and individuals who
had been referred by Respondent. The latter request,
which was the subject of the complaint allegation, asked
for a list of names, addresses, and telephone numbers of
employees on the referral list and their dates of layoff.
Respondent gave no adequate reason for either refusal.
Respondent claimed only limited copies of the contract
were available and that those were for union members.7
' Significantly, art. Ill of the collective-bargaining agreement provides
for an impartial umpire to consider allegations of discriminatory oper-
Continued
86
CARPENTERS LOCAL UNION NO. 1080
It failed to provide information about the referral list. In
the circumstances of this case, Respondent was required
to provide Axley with such information in aid of his ef-
forts to determine whether Respondent was operating its
contractually established hiring hall in a proper manner.
Axley had used the referral system in the past and was a
member of the bargaining unit. He was not referred de-
spite his frequent attempts to seek employment. Thus,
the information requested was reasonably related to the
question of whether Axley was being properly treated in
the matter of referrals either under the applicable collec-
tive-bargaining agreement or under the Labor Act's re-
quirements that such referrals do not discriminate in
favor of union members. Respondent's failure to provide
such information in the circumstances of this case was a
violation of Respondent's duty to fairly represent all em-
ployees who are subject to its referral procedures and to
its collective-bargaining agreement. See Local No. 324,
International Union of Operating Engineers, AFL-CIO
(Michigan Chapter, Associated General Contractors of
America, Inc.), 226 NLRB 589 (1976) (see also discussion
at 595-599).
CONCLUSIONS OF LAW
1. By operating its exclusive hiring hall in a manner
which discriminated against nonmembers, Respondent
violated Section 8(b)(1)(A) of the Act.
2. By failing to refer Timothy Louis Axley for em-
ployment during July 1979 and after August 20, 1979,
because he was not a member of Respondent, Respond-
ent violated Section 8(b)(1)(A) of the Act.
3. By refusing to supply Timothy Louis Axley with
names, addresses and telephone numbers of employees on
Respondent's referral list and their dates of layoff, Re-
spondent violated Section 8(b)(1)(A) of the Act.
4. The above violations are unfair labor practices
which affect commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
I shall recommend that Respondent cease and desist
from the unfair labor practices found in this case and
take certain affirmative action which is necessary to ef-
fectuate the purposes of the Act. A significant factor in
the implementation of Respondent's unlawful conduct
was its failure to make its referral or out-of-work register
available for signature by nonmember job referral appli-
cants. In addition, Respondent refused to provide infor-
mation in the register on other employees to Axley in
order for him to determine whether he was being dis-
criminated against or whether Respondent was living up
to its obligations in operating its exclusive hiring hall.
Accordingly, I shall order Respondent to inform appli-
cants of the availability of its register and information
therein where it reasonably relates to the failure to refer
them.
ation of the hiring hall. The contract also provides that a copy of the
hiring procedures be posted at the Union's office and at each jobsite. Be-
cause Axley was never given a copy of the contract, he was obviously
unaware of the manner in which he could contest the failure to refer him.
Since work was available for Axley through Respond-
ent's hiring hall and since he was not referred because of
Respondent's unlawful conduct, Respondent will be re-
sponsible for paying Axley what he would have earned
had he been referred in a nondiscriminatory fashion by
Respondent in July 1979 and after August 20, 1979, less
net earnings during that period with interest thereon to
be computed in accordance with F. W. Woolworth Com-
pany, 90 NLRB 289 (1950), and Florida Steel Corporation,
231 NLRB 651 (1977).8
Upon the foregoing findings of fact and conclusions of
law, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER 9
The Respondent, Lower Ohio Valley District Council
of Carpenters, Millwrights Local Union No. 1080,
United Brotherhood of Carpenters and Joiners of Amer-
ica, AFL-CIO, its officers, agents, and representatives,
shall:
1. Cease and desist from:
(a) Operating its exclusive hiring hall system in a
manner which discriminates against applicants for job re-
ferrals because they are not members of Respondent.
(b) Arbitrarily refusing to provide applicants for job
referral under Respondent's exclusive hiring system,
upon request, information concerning the names, address-
es, telephone numbers, and dates of layoff of employees
on Respondent's referral register where such information
is reasonably related to the failure to refer a particular
applicant.
(c) Refusing and failing to refer Timothy Louis Axley
or any other qualified person for employment through its
exclusive hiring system because that person is not a
member of Respondent.
(d) Failing to inform job referral applicants that Re-
spondent maintains an out-of-work or referral register
which is available for signature and use to all qualified
applicants regardless of membership in Respondent.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them under Section 7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Make whole Timothy Louis Axley for any loss of
pay he may have suffered by virtue of the discrimination
practiced against him as set forth in the Remedy section
of this Decision.
(b) Maintain permanent written records of its hiring
and referral operations which will be adequate to dis-
close fully the basis on which referrals are made and,
upon request, of the Regional Director for Region 25 or
his agents, make available, at reasonable times, any re-
cords relating in any way to the hiring and referral
8 See, generally, Isis Plumbing d Hearing Co., 138 NLRB 716 (1962).
In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
87
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
system. Such records shall also be made available, on re-
quest, to job referral applicants where such information
is reasonably related to the failure to refer a particular
job referral applicant.
(c) Inform all job referral applicants who are not mem-
bers of Respondent that Respondent maintains an out-of-
work or referral register which is available on a nondis-
criminatory basis to qualified job applicants whether or
not they are members of Respondent.°
(d) Post at its principal office and its hiring hall copies
of the attached notice marked "Appendix." Copies of
10 The collective-bargaining agreement provides that a copy of the
hiring procedures be posted at the Union's office.
' 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-
said notice, on forms provided by the Regional Director
for Region 25, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to members and other
applicants for referral are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
88