Cell-Crete Corp.

National Labor Relations Board - Board Decisions

Mar 29, 1988

288 N.L.R.B. 262 (N.L.R.B. 1988)

262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Cell-Crete Corporation and Fernando L. Chaves
Laborers' Union Local 304, Laborers' International
Union of North America, AFL-CIO and Fer-
nando L. Chaves. Cases 32-CA-8361 and 32-
CB-2418
March 29, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND BABSON
On July 29, 1987, Administrative Law Judge
Clifford H. Anderson issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief. The Respondent Union filed limited
cross-exceptions and a brief in support thereof and
in opposition to the General Counsel's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 1 and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that the Respondent Laborers
Local 304 did not violate Section 8(b)(1)(A) and
(2) of the Act by seeking the termination of Charg-
ing Party Fernando L. Chaves and therefore the
Respondent Employer Cell-Crete did not violate
Section 8(a)(3) of the Act by discharging Chaves
pursuant to such request. We disagree.
Cell-Crete employs laborers, cement masons, and
drivers at construction jobsites in the San Francis-
co Bay area of California. Its Hayward, California
business office in Alameda County covers work
performed in this area. The Respondent Laborers
Local 304 represents laborers employed in Alame-
da County.
At all relevant times Cell-Crete and Laborers
Local 304 operated under the terms of a collective-
bargaining agreement between the Associated Gen-
eral Contractors of California and the Northern
California District Council of Laborers. This con-
tract contained an exclusive hiring hall arrange-
ment requiring an employer to request employees
from the local union having work and area juris-
diction. The local then furnished qualified work-
In agreement with the judge, we find no merit in the Respondent
Union's exceptions urging deferral to the parties' contractual- grievance-
arbitration machmery. Deferral is inappropriate because of the adversity
of interests between the aggrieved employee Fernando Chaves and the
Respondent Union which would be excepted to represent him. In addi-
tion, there is no evidence that the Respondent Employer would represent
Chaves' rights in lieu of the Umon. See Laborers Northern California
Council (Baker Co ), 275 NLRB 278, 287-288 (1985); and cases cited
there
men by written referral according to their place-
ment on the out-of-work register. The labor agree-
ment also permitted employers to request regis-
trants by name for up to a 50-percent level of the
jobsite work force, without regard for registration
order. In addition, the labor agreement gave any
local union discretion to permit an employer to
exceed the 50-percent limit.
Cell-Crete had obtained virtually all its laborer
employees by sending a written by-name dispatch
request to Local 304. Local 304 honored each dis-
patch request and did not enforce the contractual
by-name request limit. Local 304 agents Pete
Moreno and Julian Vega did complain to Cell-
Crete's agents throughout the first 4 months of
1986 that Cell-Crete was overusing the by-name re-
quest procedure and they suggested that Cell-Crete
should be requesting unemployed applicants from
the out-of-work register.
A few employees were dispatched by other La-
borers locals to Cell-Crete jobsites located in coun-
ties within their jurisdiction. Local 304 Recording
Secretary Douglas Whitt testified that in his opin-
ion full-time, multijob employees and Alameda
County jobsite employees are contractually re-
quired to be dispatched to Cell-Crete through
Local 304. The parties stipulated that no employee
who has worked for Cell-Crete has received more
than one referral from a union and that only one
union local has been involved in dispatching each
employee.
In late February 1986 2 Chaves solicited employ-
ment with Cell-Crete and was hired as a truckdriv-
er at a Santa Clara County jobsite. Chaves was a
member of Teamsters Local 70, which was not in-
volved in the construction industry. Sometime
prior to April 23, 1986, Chaves twice visited the
office of Teamsters Local 291, a construction in-
dustry union, explained that he was employed by
Cell-Crete, and requested a transfer from Local 70.
The requests were denied by Local 291 officials
who informed Chaves that Local 291 had men out
of work and that he was supposed to use its hiring
hall. Shortly thereafter these Teamsters officials
challenged Cell-Crete's right to employ Chaves be-
cause he had not been properly dispatched through
Local 291. They also generally denigrated Chaves
as an employee. Cell-Crete's agents considered dis-
charging Chaves but eventually agreed to retain
him as a laborer instead of a driver.
Thereafter, Chaves telephoned Laborers Local
304 to arrange for membership. Chaves told Whitt
that he "wanted to join the union for Cell-Crete."
According to Chaves' credited testimony, Whitt
2 All dates are in 1986 unless otherwise stated.
288 NLRB No. 32
CELL-CRETE CORP. 263
said, "Yeah, you can get in the union, but Cell-
Crete's going to have to hire 500 people before
they hire you," and hung up the phone. Chaves
conveyed the message to Cell-Crete's production
manager Victoria Cassady, who told him that
Whitt had informed Cell-Crete that the Laborers
would audit the Company's payroll records and
fine them $500 per diem for each employee hired
"off the street." Cassady prepared a by-name dis-
patch request for Chaves to Laborers Local 270 in
Santa Clara county. On April 22, Chaves thereby
obtained a dispatch to a Santa Clara jobsite.
Chaves became a member of Local 270 and there-
after worked as a laborer in several counties in the
San Francisco Bay area.
Even after Chaves joined Local 270 as a laborer,
Teamsters Local 291 agents continued to complain
about Chaves' employment. Cassady credibly testi-
fied that minutes after one such telephonic com-
plaint, Local 304 official Whitt also phoned to
challenge the validity of Chaves' referral from the
Santa Clara local and any employment arising
therefrom.
In July 1986 Chaves telephoned Local 304 Busi-
ness Manager Peter Moreno to discuss an overtime
claim against Cell-Crete. During their conversation
Chaves told Moreno that he was a member of
Local 270 because Whitt had refused him member-
ship in Local 304.
In August 1986 Chaves became involved in an-
other overtime dispute while working at a Mann
County jobsite. Chaves again discussed his dispute
with Moreno, who promised to investigate. Later
that day Whitt and another Local 304 representa-
tive visited Cell-Crete's Hayward office. Whitt
spoke with several laborer unit employees who cre-
dibly testified that Whitt challenged the validity of
Chaves' employment, denigrated his character, and
announced his intention to cause Chaves' dis-
charge. Whitt thereafter met with Cell-Crete repre-
sentatives, resolved Chaves' wage dispute in
Chaves' favor, and obtained Chaves' discharge.3
Although Whitt had opposed Chaves' efforts to
obtain membership and a dispatch through Local
304 in April, Local 304 had permitted three by-
name request dispatches within a few months prior
to that time. It also dispatched laborers to Cell-
Crete pursuant to by-name dispatch requests on 30
June and 8 December. Chaves is the only Cell-
Whitt testified that in seeking Chaves discharge, he relied on subsec
3B, par 4, of the collective-bargaining agreement which states that-
The individual employer shall contact the appropriate hinng hall of
the Local Union having work and area Jurisdiction for all men as he
or it may from tune to time need, and the Local Union shall furnish
to the individual employer the required number of qualified and
competent workmen for the classifications needed by the individual
employer in accordance with the provisions of this Subsection 3B, if
such men are available
Crete laborer whose discharge has been requested
by Local 304 in opposition to a by-name request
procedure.
The judge accepted Whitt's interpretation that
the contract generally required job dispatching
through Local 304's hiring hall based on Cell-
Crete's home office in Alameda County, with only
temporary out-of-county dispatches allowable
through other locals with jobsite jurisdiction.
Therefore, Chaves' Local 270 dispatch was valid
only for his original Santa Clara County employ-
ment. Chaves' subsequent employment after the
Employer's failure to obtain such a dispatch
through Local 304 was a continuing violation of
the agreement. The judge rejected the contention,
however, that Cell-Crete was contractually re-
quired to submit a written request to Local 304 for
a by-name dispatch of Chaves. He found such
action would have been futile in light of Whitt's
prior statements to Chaves and Cassady.
The judge further found that Chaves was the
first individual whose dispatch status was at issue
under Local 304's new determination to invoke the
50-percent contractual restriction on by-name re-
quests. He concluded that the Union permissibly
abandoned its discretionary past practice of acqui-
escing in excessive by-name requests and asserted a
new policy restricting Cell-Crete to the contractual
limit. Evidence that Local 304 had permitted three
by-name request dispatches within a few months
prior to Whitt's refusal to dispatch Chaves and had
also subsequently permitted one by-name dispatch
on 30 June and another on 8 December was
deemed insufficient to undermine the finding that
the , Union had in fact changed its policy and prac-
tice. Finally, the judge rejected the General Coun-
sel's contention that Local 304's actions toward
Chaves were based on arbitrary, invidious, or
unfair reasons. While acknowledging Whitt's hostil-
ity toward Chaves, the judge found the evidence
insufficient to establish that such hostility resulted
from reasons other than Chaves' and Cell-Crete's
circumvention of the hiring hall system. Thus, the
judge concluded that Local 304's request that
Chaves be discharged and Cell-Crete's compliance
with that request were not improper.
We disagree with the judge's analysis. We find
that the judge erroneously concluded that a change
actually took place in Local 304's referral policies.
We find instead that its actions concerning Chaves
constituted a single arbitrary refusal to permit
work pursuant to the contractual by-name request
procedure. Chaves was the only employee that
Local 304 had refused to dispatch or had requested
Cell-Crete to discharge based on the by-name re-
quest limitation. By permitting additional by-name
264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
requests before and after Whitt had refused Chaves
a dispatch, without utilizing any objective criteria
to justify such disparate treatment, Local 304 dem-
onstrated that it had not in fact revoked its consent
to excessive requests by name.4
Evidence of Local 304's inconsistent handling of
Chaves' situation demonstrates there was no clear
change in dispatch procedures nor a legitimate jus-
tification for Local 304's conduct in seeking his dis-
charge. Although Whitt strongly opposed Chaves'
April efforts to secure membership and dispatch
through Local 304, he admitted that Chaves' dis-
patch through Local 270 to the Santa Clara jobsite
was valid. Notwithstanding Whitt's view that any
work by Chaves at other jobsites had to be cleared
by Local 304, it is obvious that the Local permitted
a breach of this procedure while Chaves worked at
several other Cell-Crete jobsites. Moreno, one of
the Local 304 officials who had complained earlier
in the year about Cell-Crete's by-name requests,
knew in July about the circumstances of Chaves'
employment yet apparently did nothing about it. In
light of this conduct by Local 304's own agents,
we conclude that Whitt's subsequent conduct in de-
manding Chaves' discharge was palpably arbitrary.
Alternatively, even if we were to accept the
judge's finding that Local 304 in fact changed its
policy and practice of acquiescing in Cell-Crete's
excessive by-name requests, we would fmd that
such arbitrary departure from established exclusive
hiring hall procedures was violative of the Act. A
union which operates an exclusive hiring hall must
represent all individuals seeking to utilize that hall
in a fair and impartial manner. 5 In this regard, the
Board has held that notwithstanding the absence of
specific discriminatory intent, "any departure from
established exclusive hiring hall procedures which
results in a denial of employment to an applicant
. . . inherently encourages union membership,
breaches the duty of fair representation owed to all
hiring hall users, and violates Section 8(b)(1)(A)
and (b)(2)," absent demonstration of a legitimate
justification. 6 In addition, the failure to give timely
notice of a significant change in referral procedures
is a breach of a union's duty to represent job appli-
cants fairly.7
Applying the foregoing principles to this case,
we note the absence of any evidence that Local
304 ever notified Chaves or any other job applicant
4 In this regard, we do not agree with the judge's rejection of the
other by-name request referrals as too few to be significant.
5 E g., Boilermakers Local 169 (Riley Stoker Corp.), 209 NLRB 140,
149-150 (1974)
6 Operating Engineers Local 406 (Ford Construction Corp.), 262 NLRB
50, 51 (1982), enfd 701 F 2d 505 (5th Cm 1983), and see Plumbers Local
392 (Kaiser Engineers), 252 NLRB 417 (1980)
7 Operating Engineers Local 406, supra, 262 NLRB at 51, enfd. 701
F.2d at 510.
that it was departing from its practice of allowing
specific by-name requests in excess of the 50-per-
cent limitation. The failure to give notice of such a
change about a development critical to potential
employment constituted a breach of Local 304's
duty to represent Chaves fairly.
Local 304 has also not established that an alter-
ation of the established hiring and dispatch proce-
dures was legitimately necessary to the effective
performance of its representative function. Not-
withstanding the apparent existence of numerous
hiring hall registrants, the record establishes that
Local 304 continued to sign by-name dispatches for
Cell-Crete before and after its refusal to dispatch
Chaves. Moreover, if Local 304's change was
indeed designed or intended to benefit its member-
ship as a whole, it is reasonable to assume that it
would have given timely notice of its new hiring
and dispatch procedures to all hiring hall regis-
trants. As previously noted, the evidence indicated
that it gave no notice.
Based on the foregoing, we conclude that Re-
spondent Local 304 violated Section 8(b)(1)(A) and
(2) of the Act by demanding Chaves' discharge.
We further find that Respondent Cell-Crete violat-
ed Section 8(a)(3) and (1) by discharging Chaves
pursuant to Local 304's demand.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusions of Law
3 and 4.
"3. Respondent Union violated Section
8(b)(1)(A) and (2) of the Act when it requested the
discharge of Fernando L. Chaves in August 1986.
"4. Respondent Employer violated Section
8(a)(3) and (1) of the Act by discharging Fernando
L. Chaves pursuant to the Respondent Union's
demand in August 1986."
THE REMEDY
Having found that the Respondent Employer
and the Respondent Union have engaged in certain
unfair labor practices, we shall order them to cease
and desist and to take certain affirmative action to
effectuate the policies of the Act.5
Having found that the Respondent Employer
Cell-Crete unlawfully discharged and failed to rein-
state Fernando L. Chaves, we shall order the Re-
, spondent Employer to offer Chaves immediate and
8 The General Counsel has requested that the Order include a visita-
tonal clause authorizing the Board, for compliance purposes, to obtain
discovery from the Respondents under the Federal Rules of Civil Proce-
dure under the supervision of the United States court of appeals enforc-
ing this Order. Under the circumstances of this case, we find it unneces-
sary to include such a clause Accordingly, we deny the General Coun-
sel's request See Cherokee Marine Terminal, 287 NLRB 1080 (1988).
CELL-CRETE CORP. 265
full reinstatement to his former position or, if that
position is no longer in existence, to a substantially
equivalent one, without prejudice to his seniority
or other rights and privileges.
Having found that the Respondent Union Labor-
ers Local 304 unlawfully caused Cell-Crete to dis-
charge Fernando L. Chaves, we shall order the
Respondent Union to notify Chaves and Cell-Crete
in writing that it has no objection to the employ-
ment of Chaves by Cell-Crete.
The Respondents shall be ordered jointly and
severally to make Chaves whole for any loss of
earnings resulting from his unlawful discharge. The
Respondents shall also be ordered to preserve and,
on request, make available to the Board or its
agents any and all records necessary to analyze the
amount of backpay due. In the case of the Re-
spondent Union, its backpay liability shall termi-
nate 5 days after it notifies the Respondent Em-
ployer and Chaves that it has no objection to
Chaves' employment and, in the case of the Re-
spondent Employer, its backpay liability shall ter-
minate on the date that Chaves is offered employ-
ment. The amount of backpay shall be computed] in
the manner set forth in E W. Woolworth Co., 90
NLRB 289 (1950), with interest thereon to be com-
puted in the manner prescribed in New Horizons for
the Retarded, 9 and accrued to the date of payment,
minus tax withholdings required by law.
ORDER
The National Labor Relations Board orders that:
A. Respondent Cell-Crete Corporation, Hay-
ward, California, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating
against employees to encourage membership in La-
borers Union Local 304, or any other labor organi-
zation in violation of Section 8(a)(3) and (1) of the
Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Jointly and severally with the Respondent
Union, make whole with interest, Fernando L.
Chaves for any loss of earnings he may have suf-
9 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 U.S.C. § 6621. Interest on
amounts accrued prior to January 1, 1917 (the effective date of the 1986
amendment to 26 U.S.C. § 6621), shall be computed in accordance with
Florida Steel Corp., 231 NLRB 651 (1977)
fered by reason of the discrimination against him,
in the manner set forth in the remedy section of
this Decision and Order.
(b) Offer employment to Fernando L. Chaves in
the job he held prior to the unlawful conduct di-
rected against him or, if that job no longer exists,
in a substantially equivalent position.
(c) Preserve and, on 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 place of business in Hayward,
California, and all other places where it customari-
ly posts notices to employees, copies of the at-
tached notice marked "Appendix A."" Copies of
the notice, on forms provided by the Regional Di-
rector for Region 32, after being signed by Re-
spondent Cell-Crete's authorized representative,
shall be posted by Respondent Cell-Crete immedi-
ately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent
Cell-Crete to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps Respondent Cell-Crete has taken to comply.
B. Respondent Laborers' Union Local 304, La-
borers' International Union of North America,
AFL-CIO, Alameda County, California, its offi-
cers, agents, and representatives, shall
1. Cease and desist from
(a) Causing or attempting to cause Cell-Crete
Corporation or any other employer to discharge or
otherwise discriminate against employees in viola-
tion of Section 8(a)(3) and (1) of the Act.
(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Jointly and severally with Cell-Crete Corpo-
ration, make whole, with interest, Fernando L.
Chaves for any loss of earnings which he may have
suffered by reason of the unlawful discrimination
against him in the manner set forth in the remedy
section of this Decision and Order.
/ 0 If 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all seniority lists, attendance records, or
records showing starting times, job assignments,
and hours worked, and all other records necessary
for the determination of the amount of backpay
due under the terms of this Order.
(c) Notify Fernando L. Chaves and Cell-Crete,
in writing, that it has no objection to Chaves' em-
ployment by Cell-Crete and that he may have full
use of the Union's hiring hall facilities without dis-
crimination in connection with referrals for em-
ployment.
(d) Post at its business office in Alameda County,
California, and any other location where it custom-
arily posts notices to members, copies of the at-
tached notice marked "Appendix B." 11 Copies of
the notice, on forms provided by the Regional Di-
rector for Region 32, after being signed by an au-
thorized representative of Respondent Union, shall
be posted by Respondent Union immediately upon
receipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to members are customarily posted. Reasona-
ble steps shall be taken by Respondent Union to
ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Forward signed copies of the notice to the
Regional Director for posting by Cell-Crete at all
locations where notices to employees are customar-
ily posted.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order, what
steps have been taken to comply.
" See fn lb supra.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT discharge or otherwise discrimi-
nate against employees unlawfully to encourage
membership in Laborers' Union Local 304, Labor-
ers' International Union of North America, AFL-
CIO or any other labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, jointly and severally with Laborers'
Union Local 304, make whole, with interest, Fer-
nando L. Chaves for any loss of earnings suffered
as a result of the discrimination against him.
CELL-CRETE CORPORATION
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT cause or attempt to cause discrim-
ination against Fernando L. Chaves or any other
applicants by Cell-Crete Corp., in violation of Sec-
tion 8(a)(3) and (1) of the Act.
WE WILL NOT in any like or related manner re-
strain or coerce employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
WE WILL, jointly and severally with Cell-Crete
Corp., make whole Fernando L. Chaves for any
loss of earnings he may have suffered by reason of
our discrimination against him on August 22, 1986,
with interest.
WE WILL notify Fernando L. Chaves and Cell-
Crete Corp., in writing, that we have no objection
to Fernando L. Chaves' employment as a laborer,
and that he may have full use of the hiring hall fa-
cilities without discrimination in connection with
referrals for employment.
LABORERS' UNION LOCAL 304, LA-
BORERS' INTERNATIONAL UNION OF
NORTH AMERICA, AFL-CIO
Douglas Gallop, Esq., for the General Counsel.
Michael .1. Berg, Esq., of San Francisco, California, for
the Employer.
Victor .L Van Bourg and David Rosenfeld, Esqs. (Van
Bourg, Weinberg, Roger & Rosenfeld), of San Francisco,
California, for the Union.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. I
heard these consolidated cases in trial on 8 and 16 Janu-
ary 1987. The cases arose as follows. On 8 September
1986, Fernando L. Chaves filed a charge docketed as
Case 32-CA-8361 against Cell-Crete Corporation (Re-
spondent Employer or the Employer) and a second
charge on that same day docketed as Case 32-CB-2418
against Laborers' Union Local 304, Laborers' Interns:
CELL-CRETE CORP. 267
tional Utuon of North America, AFL-CIO (Respondent
Union, the Union or Local 304). On 31 October 1986 the
Regional Director for Region 32 of the National Labor
Relations Board issued an order consolidating cases, con-
solidated complaint, and notice of hearing regarding the
two charges.
The consolidated complaint alleges that the Union
over the period mid-April through 22 August 1986 de-
manded that the Employer discharge employee Fernan-
do L. Chaves and that on 22 August 1986 the Employer
did so. The complaint alleges through these acts and
conduct the Union violated Section 8(b)(1)(A) and (2) of
the Act and the Employer violated Section 8(a)(1) and
(3) of the Act. The Employer and the Union filed an-
swers denying that they have in any way violated the
National Labor Relations Act.
All parties were given full opportunity to participate
at the hearing, to introduce relevant evidence, to call, ex-
amine, and cross-examine witnesses, to argue orally, and
to file posthearing briefs. On the entire record, including
a brief from the General Counsel and oral agrument
from the Employer and the Union, and from my obser-
vation of the witnesses and their demeanor, I make the
followingl
FINDINGS OF FACT
I. JURISDICTION
At all times material, Respondent Employer has been a
California corporation with an office and place of busi-
ness in Hayward, California, where it has been engaged
in the nonretail sale and installation of cement roof
decks, sound installation materials, and floors. At rele-
vant times on an annual basis, Respondent Employer in
the conduct of its business operations sold and shipped
goods and provided services valued in excess of $50,000
directly to customers located outside the State of Califor-
nia. Accordingly, Respondent Employer is, and has been
at all times material, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. LABOR ORGANIZATION
Respondent Union is now, and has been at all times
material, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III, THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent Union is a constituent local union of the
Laborers' International Union of North America, AFL-
CIO. It represents employees employed in Alameda
County, California. At relevant times, the following indi-
viduals were agents of Respondent Union:
1 The preponderance of evidence introduced at the hearing was un-
challenged. When not otherwise noted the findings are based on the
pleadmgs, stipulations of counsel, or ci edible unchallenged documentary
and testimonial evidence.
Pete Moreno Business Manager
Julian Vega Secretary-Treasurer
Douglas Whitt Recording Secretary
Respondent Employer is engaged in the construction
industry in the State of California and other States. At
relevant times the following individuals were agents of
the Employer at its Hayward, California operations:
Louis C. G Fisher President
Wayne Wilburn Operations Manager
Victoria Cassady Production Manager until
June 1986
Tim Shea Salesman and Operations
Manager during and after
June 1986
Richard Jack
Foreman
Respondent Employer employs persons in various con-
struction trades in the greater bay area including labor-
ers, cement masons, and teamsters. Respondent Employ-
er has been signatory to memorandum agreements adopt-
ing multiemployer contracts with various trade unions
including the Northern California District Council of La-
borers (District Council), one of whose constituent mem-
bers is Respondent Union. The most recent collective-
bargaining agreement between the Employer and the
District Council expired by its terms on 15 June 1986.
The parties at all relevant times were operating under
the terms of that agreement.
The agreement recognizes the District Council and its
constituent locals as representatives of Respondent Em-
ployer's laborers. The contract has a union-security
clause and provides for a union operated hiring hall. The
agreement's hiring hall provisions state, in part:
Section 3—Employment and Discharge
B. Employment
(1) The Union or Local Union shall maintain
open and non-discriminatory hiring halls for the use
of workmen desiring employment on work covered
by this Agreement and such workmen shall be enti-
tled to use such hiring halls. It is mutually agreed
by the Employer and the Union to fully comply
with all of the provisions of Title 7 of the Civil
Rights Act of 1964, Presidential Executive Order
#11246, and California Fair Employment Practices
Section [sic], to the end that no person shall, on the
grounds of sex, race, color, or national origin, be
excluded from participation in, be denied the bene-
fits of, or be otherwise subjected to discrimination
by not having full access to the contents of Section
3 of this Agreement.
. . . .
(4) The individual employer shall contact the ap-
propriate hiring hall of the Local Union having
work and area jurisdiction for all men as he or it
may from time to time need, and the Local Union
shall furnish to the individual employer the required
number of qualified and competent workmen for
the classfications needed by the individual employer
268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in accordance with the provisions of this Subsection
3B, if such men are available.
. . . .
(6) The appropriate hiring hall of the Local
Union of the Union having work and area jurisdic-
tion, will furnish in accordance with the request of
the individual employer such qualified and compe-
tent workmen of the classifications needed from
among those entered on said lists to the individual
employer by use of a written referral . . .
Persons shall be referred in the order in which
they are registered, if their registration indicates
that they are qualified for and desirous of taking
such referral unless they are not available for refer-
ral, subject to the following conditions:
First, (a) notwithstanding any other provision of
this Agreement, the individual employer may re-
quest a person by name, out of order, and such
person must be dispatched if such person is regis-
tered on the out-of-work list and if such person was
employed previously by such individual employer
or member of a joint venture within three years
prior to such request within the territorial jurisdic-
tion of the appropnate Local Union of the Union.
(b) In addition to requests permitted by the pro-
vision of Subsection 6(a), the individual employer
may request any person registered on the out-of-
work list out of order for any reason; provided,
however, that at no time shall any job contain more
than 50% of persons requested under Subsection
6(b).
(c) Any Local Union may, at its option, permit a
percentage of individual requests greater than 50%
on any job. Such permission shall not be deemed a
violation of this Agreement.
(d) No persons shall be dispatched pursuant to
the provisions of Subsections 6(a), 6(b), or 6(c) of
this section unless the individual employer request is
in writing, dated, is signed by an appropriate man-
agement representative, specifies whether the
person is a rehire and names the job for which
rehire is requested.
B. The Contractual Dispatch Procedures and Practices
of Parties
1. Documentary evidence
Dispatch records introduced into evidence for the
period 1983 to the events in question concerning Chaves
indicated the following. The Employer made general re-
quests of Local 304 for laborers on only four or five oc-
casions. In each instance the Employer determined the
referred applicant was unsatisfactory and on no occasion
was the referred individual hired. With the exception of
requests made of other District Council locals, discussed
infra, the Employer obtained all its laborer employees by
sending a by-name dispatch request on company station-
ery to Local 304. 2 With a single exception, each of these
2 These dispatch requests generally stated, albeit sometimes untruthful-
ly, that the named applicant had immediately become or was soon to
become a laborer employee of the Employer
dispatch requests signed by the Employer's agents identi-
fied the "job" to which the applicant was to be dis-
patched as located at the Employer's main office in Hay-
ward, California. In every instance, Local 304 honored
the dispatch request and issued a dispatch to the request-
ed individual. Thus, at least until the events at issue, the
Union had not enforced the by-name request limits con-
tained in the contract.3
A few employees were dispatched by other District
Council locals. One dispatch was obtained from Laborers
Local 270 located in Santa Clara County for an individ-
ual to be sent to a Santa Clara County jobsite in 1983.
Two individuals were dispatched by Local 326, a Solano
CoUnty Local, to a jobsite within that county in May
19,86. It is not clear if these were general or name re-
quest dispatches. Fisher testified the Solano County dis-
patches were required by the Employer's contract with
the jobsite general contractor.
In addition to the documentary evidence of dispatches
described above, the parties stipulated that the parties'
records indicated that no employee had received more
than one referral and, consistently, only one local union
had been involved in dispatching each employee. Fur-
then Chaves testified without contradiction that to his
knowledge, during his employment with the Employer,
all other employees in the Employer's laborers' bargain-
ing unit were members of Local 304.
2. Testimony concerning dispatch practices
Whitt testified at great length regarding his interpreta-
tion of contract dispatch procedures as they applied to
the Employer. He took the position, and represented that
Local 304 acted consistently with his position, that all re-
quests for job dispatches by the Employer were required
to go to Local 304 for: (1) Alameda County work and
(2) for all job applicants who would be based at the Hay-
ward office, i.e., hired as full-time multijob rather than
single jobsite employees. Whitt stated that Local 304's
jurisdiction did not extend to jobsites outside of Alameda
County. Therefore work at those out-of-county jobsites
was not of concern to him save that, he insisted, dis-
patches to those jobsites by other local unions did not
entitle those job applicants who became employees on
those jobsites to transfer their employment to Alameda
County sites without obtaining a new dispatch from
Local 304. Thus, under Whitt's interpretation, the con-
tract in practice required full-time employees and Alame-
da County jobsite employees to be dispatched through
Local 304's offices. Only those employees who were to
work exclusively at a jobsite or jobsites outside Alameda
County were exempt from this obligation under the con-
3 There was uncontradicted evidence that the Union eventually formed
an intention to enforce the contract limits and informed the Employer of
this intention. Local 304's agent, Moreno, commencing about January
1986, and continuing through April 1986, complained to the Employer's
agents that the Employer was overusing the by-name request procedures
and that, because the Union had unemployed registrants on the out-of-
work list, the out-of-work list should be utilized by the Employer. Julian
Vega complained to Cassady on several occasions of the number of
people on the Union's out-of-work list and asserted that the Employer
should be requesting applicants from the out-of-work list rather than
using the by-name request procedure
CELL-CRETE CORP. 269
tract. Implicit in the testimony of Whitt was the propoSi-
tion that laborer employees of the Employer working at
jobsites outside Alameda County would be regarded as
properly dispatched and employed under the contract if
dispatched by Local 304 because the Employer's main
facility or yard was located in Alameda County. There is
some evidence in the record that laborer locals outside
Alameda County did not challenge laborer employees of
the Employer working outside of Alameda County based
on an original Local 304 dispatch.
C. The Events Concerning Chaves
The Employer employs truckdrivers under a coll&-
tive-bargaining agreement or agreements with the Inter-
national Brotherhood of Teamsters and certain of its
constituent local unions including Local 291 whose juris-
diction includes Santa Clara County, California. Presum-
ably the relevant agreement contains an exclusive hiring
hall provision. In late February 1986, Fernando L.
Chaves had occasion to learn of a possible job opportuni-
ty with the Employer at a jobste in Santa Clara County.
Consequently, Chaves visited the Employer and solicited
employment as a truckdriver. Chaves was interviewed
by Production Manager Victoria Cassady, who asked
Chaves if he "was in the Union." Chaves at the time was
a member of a Teamsters local not involved in the con-
struction industry, Local 70. Chaves presented his duei
card to Ca ssady and was hired to commence work the
following day. Sometime before 23 April 1983, Chaves
went to the office of Teamsters Local 291 and spoke
with Richard Durossette, an official of Local 291.
Chaves informed the official that he was an employee of
Cell-Crete Corporation and wished to transfer from
Local 70 to Local 291. Durossette said, in Chaves' testi-
mony, "Cell-Crete. What the hell's Cell-Crete doing, you
know, hiring a man you know. You guys are supposed to
use . . . you're supposed to use my hiring hall." Chaves
left without obtaining a transfer. A few days later
Chaves visited Steven Marenkovich, a Local 291 official
who had previously been a business agent with Local 70.
Chaves informed Marenkovich he wished to transfer into
Local 291. Marenkovich declined his request telling him
he had "men here out-of-work."
Although he failed in transferring Teamsters locals,
Chaves continued his employment with the Employer at
the Santa Clara County jobsite as a truckdriver, appar-
ently also doing laborer's work. Soon thereafter Duros-
sette initially, and later accompanied by Marenkovich,
went to the Employer's facility, and (1) challenged the
Employer's right to employ Chaves when he had not
been properly dispatched through Local 291, (2) asserted
that Local 291 would not allow Chaves to transfer into
Local 291 under the circums Lances presented, and (3)
generally denegrated Chaves as an employee.
The Employer's agents, evidently acting on the com-
plaints from the Teamsters representatives, considered
discharging Chaves but, holding the view that he was a
good worker, determined first to offer him employment
as a laborer. Chaves was told by the Employer's agents,
including Cassady, that he could not work in the Team-
sters' bargaining unit but, if he would agree to become a
laborer, he could be retained. Chaves agreed.
The evidence regarding Chaves' contacts with Local
304 at this point is somewhat confused. Cassady testified
that she did not prepare the by-name request letter the
Employer had uniformly used up to this time to obtain a
by-name dispatch from Local 304. Rather, she testified
that Chaves volunteered to go to Local 304 and arrange
for membership. 4 Chaves testified that he telephoned
Local 304 and spoke with Whitt:
I told him my name, told him I wanted to join the
union for Cell-Crete. He said—he started yelling,
said he had 500 people down here without work.
He said, "Yeah, you can get in the union, but Cell-
Crete's going to have to hire 500 people before they
hire you. I told the man—I go, I've already been
working for a month or two, and tried to talk to
him. He hung up the phone and that was that."5
Chaves testified he reported the substance of this tele-
phone call to Cassady. 6 At that point Cassady offered
Chaves a transfer with the Company to Los Angeles,
which offer Chaves declined. Chaves then suggested that
he join Laborers Local 270 in Santa Clara County and
by that means continue working for the Employer. Cas-
sady agreed and prepared a by-name dispatch request to
Local 270. About 22 April Chaves presented the dis-
patch request to Laborers Local 270 and obtained a dis-
patch to a then-current Santa Clara jobsite. He paid his
membership fees and dues to Local 270 and maintained
his membership at all relevant times thereafter. After
being dispatched by Local 270, Chaves worked initially
at the Santa Clara site and thereafter in seven or eight of
the counties in the greater San Francisco Bay Area as a
laborer being paid the laborers' contract rate.
Cassady testified that even after Chaves joined Local
270, Teamsters Local 291 agents continued to complain
about Chaves' employment at the Santa Clara jobsite.
Cassady testified that Durossette telephoned her on at
least one occasion and asked her why Chaves was still
being employed. Cassady responded, in her testimony,
that Chaves was in fact "in a union," at which point she
transferred the call on to other officials of the Employer.
She testified that a few minutes later Whitt called com-
plaining that the Employer was employing somebody not
in Local 304. Cassady responded to Whitt that Chaves
was in Laborers Local 270. Whitt challenged the validity
of a referral by the Santa Clara local. At this point Cas-
4 It was clear that by this tune Moreno and Vega had been complain-
ing to Cassady regarding the Employer's overuse of the by-name request
process. See fn. 2 infra.
5 Whitt denied ever having such a conversation with Chaves. I credit
Chaves both on demeanor and on the belief that he would not fabricate
such a conversation Whitt, who did not know Chaves at the time, may
simply have forgotten the call
6 Chaves further testified that Cassady told him in this conversation
that she had also had a conversation with Whitt in which Whitt had told
her that Cell-Crete "could not hire anyone off the street and that Labor-
ers were going to audit the company's payroll records and fine them
$500 per day for each day [Chaves] worked there" Although Cassady
did not corroborate this testimony in all its circumstances, I credit it.
Again. Chaves would not likely misrecall such a conversation.
270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sady transferred Whitt's call to other officials of the Em-
ployer. 7 These other individuals did not testify.
Matters continued without further event until July
1986. At that time Chaves telephoned Moreno to discuss
an overtime claim against Cell-Crete. During the course
of this conversation Chaves told Moreno that he was a
member of Local 270 rather than Local 304. When
Moreno asked him why this was so, Chaves responded
that it was because Whitt had refused to allow him to
join Local 304. Moreno, in Chaves' testimony, asked
why this had happened and Chaves replied that he did
not know and the conversation turned to other matters.8
Again in August 1986, Chaves became involved in a
wage dispute with the Employer concerning work at a
Mann County jobsite. On 22 August 1986 Chaves, ac-
companied by fellow employee Richard Jack, went to
Local 304's offices. Moreno was not there but an office
employee reached him by telephone and Chaves spoke
with him. Chaves related his wage dispute to Moreno
and Moreno said he would investigate the matter and
contact Chaves later that day. Later in the day Whitt ar-
rived at the Employer's facility in Hayward with another
Local 304 representative. Whitt initially spoke to several
of the Employer's laborer unit employees including
Richard Jack and Jack Franklin Apparently in a bellig-
erent mood, Whitt queried these individuals regarding
their union membership, challenged the validity of
Chaves' employment status, attacked Chaves' personal
character, and announced his intention to cause Chaves'
discharge. Whitt, in Franklin's memory, related that
Chaves had attempted to obtain a dispatch through
Local 304 months before and, when thwarted, turned to
Local 270 and obtained an improper dispatch.8
Whitt thereafter met with agents of management and
resolved the Chaves grievance in Chaves' favor. Whitt
complained again of the impropriety of the Employer's
means of obtaining the Local 270 dispatch regarding
Chaves and, through those complaints as admitted in the
answer, sought and obtained Chaves' discharge."
Chaves has not been employed by the Employer since
nor has the Union changed its position that Chaves was
improperly employed by the Employer in August as a la-
borer.
D. Analysis and Conclusions
1. Issues and positions of the parties
It is undisputed that the Union sought the discharge of
Chaves, and the Employer, acquiescing in that request,
discharged Chaves. Respondents argue initially that the
entire matter should be deferred to arbitration, a position
opposed by the General Counsel. The Union and the
Employer further assert that the discharge was proper
7 There is a dispute regarding the timing of this conversation and who
initiated the call. It is clear, however, and I find, that Whitt challenged
the validity of a referral from Local 270 and any employment arising out
of it
Moreno did not testify Chaves' version is credited.
9 Whitt demed he made the statements attributed to him I credit the
employees involved pnmanly on demeanor grounds.
10 Chaves later learned from Employer's agents that the Union had
challenged the propnety of his initial dispatch as a laborer for the Em-
ployer.
because, as of the time of the discharge, Chaves was em-
ployed as a laborer in counties other than' Santa Clara
and therefore his initial dispatch was obtained in viola-
tion of the contract. The General Counsel challenges this
latter defense with a number of arguments. First, the
General Counsel argues that the contract on its face or
by interpretation and practice allows an employee once
dispatched to a job by any District Council local under
the collective-bargaining agreement to continue his em-
ployment relationship in any bay area county without
being redispatched. Thus, the General Counsel directly
challenges the contractual defense of Respondent.
Second, the General Counsel argues that, even if the
contract either facially or through practice did not allow
Chaves' Santa Clara dispatch to justify continued em-
ployment in other counties, including Local 304's juris-
diction, Respondents' contract argument was not in fact
the true motive for Local 304's efforts to cause Chaves'
termination. Rather, the General Counsel asserts that
Local 304's true motivation was the apparent, although
less than fully defined, "troublemaker" status of Chaves
while a member of Local 70 of the Teamsters. The Gen-
eral Counsel argues such "troublemaker" status is an ar-
bitrary, invidious, and illegal basis for discrimination
against Chaves.
It is appropriate to discuss these issues seriatim.
2. The issue of deferral
Respondents assert the following contract clauses as a
basis for deferring the instant action to arbitration:
(17) Any person aggrieved by the operation of
the hiring hall shall submit his grievance to the per-
manent hiring hall neutral arbitrator provided that
such submission is made in writing stating the rea-
sons for the grievance, within ten (10) working days
after the occurrence of the grievance. The Arbitra-
tor shall have full power to adjust the grievance,
and his decision thereon shall be final and binding
upon the person submitting the grievance and all
parties hereto. Forms for the submission of any such
grievance shall be available at all times in the office
of the Union in each Local Union.
(18) The permanent hiring hall neutral arbitrator
shall be Adolph Koven and notices required by this
Section shall be mailed or delivered to 304 Green-
wich Street, San Francisco, California 94133. The
date of postmark and/or date of delivery of the
grievance, whichever is later, shall toll the running
of the ten (10) day period. The cost of arbitration
shall be borne equally by the Employer and Union
regardless of who the Local Union or individual
employer is.
Respondents expressly waived any right to assert the
time limitations in the contractual provisions as a bar to a
claim filed by the Charging Party regarding the matters
underlying the instant action.
Counsel for Respondent Union in his oral argument
frankly acknowledged the Board's refusal to date to
defer to arbitration when the interest of the Charging
Party differs from the parties to the contract. See, e.g.,
CELL-CRETE CORP. 271
' 1 -
Iron Workers Local 433 (AGC)„ 228 NLRB 420 (1977);
Iron Workers Local 118 (Bostrom-Bergen), 219 NLRB 467
(1975); Electrical Workers IBEW Local 67,5 (S & M Elec-
tric), 223 NLRB 1449 (1977). Although acknowledging
the existence of those cases, counsel argued that the in-
stant case "presents the best case for deferral in a hiring
hall referral situation that can exist." Thus, counsel for
the Union argued that the contract creates independent
rights of action in users of the hiring hall and further
provides a convenient means of initiating that procedure.
Counsel argues that the contract provides an arbitrator
with as much independence and continuity of service
during the life of the contract as can be arranged
through contractual agreement. Thus, argues counsel,
any inherent disharmony of the positions of the Employ-
er and the Union as opposed to a person allegedly ag-
grieved under the hiring hall system is minimized and the
opportunity for fairdecision by an independent arbitrator
is maximized. The General Counsel opposes the deferral
relying primarily on the Board cases cited supra.
The simple answer to Respondents' motion to defer is
that the Board cases cited are determinative of the ques-
tion unless and until the Board modifies its position.
Without challenging counsel for Respondent Union's
characterization of the contract as the "purest" contrac-
tual procedure for justifying deferral of a claim brought
by a hiring hall user against both the Employer and the
Union, it remains clear that the Board regards the con-
flict between the positions of the parties to the contract,
who pay the arbitrator, and the Charging Party as fatal
to deferral. If Respondents seek to obtain a change in
Board law in this area, they must take their arguments to
the Board itself. An administrative law judge is bound to
apply, not modify, Board law.
3. Was the discharge of Chaves justified by the
contract?
En deciding whether a union and an employer violate
Section 8(b)(2) and Section 8(a)(3) of the Act by causing
the discharge of an employee, the threshold issue is the
propriety of the union's discharge demand.
As the General Counsel has shown in an eloquent
marshaling of the authorities on brief, a union that seeks
the discharge of an employee for violation of hiring hall
regulations starts in a hole. The Supreme Court has held
that a union may request that an employee hired in viola-
tion of valid hiring hall procedures be discharged. Team-
sters Local 357 v. NLRB, 365 U.S. 677 (1961). The Board
has held, however, that a union's power in operating a
hiring hall is so great that any union action preventing
an employer's hire or causing the termination of an em-
ployee is presumed to violate the Act. Operating Engi-
neers Local 18 (Murphy), 204 NLRB 681 (1973). See also
Iron Workers Local 433 (AGC), 228 NLRB 1420 (1977),
enfd. 600 F.2d 770 (9th Cir. 1979); Carpenters Local 25
(Mocon Corp.), 270 NLRB 623, 630 (1984 enfd. 769
F.2d 574 (9th Cir. 1985). Thus, in this case the burden of
proof in justifying their conduct is explicitly on Re-
spondents. In this sense no presumption of innocence
exists in the hiring hall discharge context.
Here the relevant question presented is whether the
contract language, quoted supra, and the evidence relat-
ing to the Union's dispatch procedures and practices are
sufficient to constitute a justification for the Union's re-
quest that Chaves be terminated. The initial contract
issue to be resolved is whether a dispatch by a laborers'
local in a county other than the home base county of the
employer, i.e., Local 304, is sufficient to allow general
employment in all the counties covered by the contract.
Considering the contract, the testimony of both the
Employer's and Union's agents regarding the actual op-
eration of the hiring hall, as well as the documents intro-
duced that record previous dispatches under the con-
tract, I find that Respondents have met their burden of
proof in showing that the contract has been applied, ex-
cepting the Chaves' incident, so that a dispatch from the
Santa Clara local 1 ' was valid only for the period of time
the dispatched employee was working at a Santa Clara
jobsite. The contract is not sufficiently clear on its face
to require this interpretation nor is it in any way incon-
sistent with such an interpretation. I discern nothing in
this interpretation inconsistent with the realities of multi-
county construction nor inimical to the Board's deci-
sional law.
Thus, I find that the contract has been interpreted to
require general job dispatching to occur at the employ-
er's home base local with only temporary out-of-home-
county jobsite staffing occurring through other locals
with jurisdiction over the particular jobsite involved. I
find no significant evidence in the record to suggest that
this has not been the practice of the Employer and Local
304 or, for that matter, other laborers' local under the
contract during relevant periods. Thus, Chaves testified
without contradiction that all laborer unit employees of
the Employer, saving only himself, were members of
Local 304. The parties stipulated that no laborer unit em-
ployee of the Employer had received more than a single
job dispatch. Whitt testified without contradiction that
he believed Chaves was the first individual who had
sought to parlay an out-of-county jobsite dispatch into
permanent multicourity jobsite employment with the Em-
ployer. Although the dispatch records do reveal a few
out-of-county laborers' local union jobsite dispatches,
there was no evidence offered to suggest that those job-
site dispatches were for other than specific jobsite work
of limited duration and that those individuals employed
• under those dispatches did not terminate their employ-
ment at the conclusion of that jobsite work. It is also
clear from at least some of the dispatches in evidence
that, when the Employer undertook dispatch requests
through Local 304, the individuals were dispatched to
full-time employment rather than to temporary or jobsite
employment and that they were carried on the Employ-
er's personnel records as permanent employees and sent
from jobsite to jobsite without concern for the jobsite's
geographic location in one county or another. Further,
there is some record evidence to suggest that laborers'
locals outside of the Alameda County jurisdiction of
Local 304 recognized and respected this procedure.
" I do not find, nor do I believe Respondents contend, that the Santa
Clara local dispatch was invalid for Santa Clara County work
272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Given the above, it is clear that Chaves' Local 270 dis-
patch was valid only for his original Santa Clara County
employment. It is also clear and I find that the contract
as interpreted and applied by the Employer and the
Union required that Chaves be dispatched by Local 304
when his Santa Clara County employment ended as a
condition precedent to Chaves' employment in other
counties. The Employer's failure to obtain such a dis-
patch was a violation of the agreement. Chaves' employ-
ment thereafter was a continuing violation of the agree-
ment.
The second thrust of the General Counsel's attack on
Respondents' contract defense goes, not to the contract's
dispatch procedures nor to the validity of Chaves' Local
270 dispatch in justifying his continued employment but,
rather, to the Union's apparently consistent past practice
of allowing the Employer to employ essentially any indi-
vidual it desired as a laborer under any circumstances
simply by the means of a by-name request for the dis-
patch of that individual." Thus, the General Counsel
argues that, because the Union's consistent practice had
been to dispatch anyone the Employer wanted until
Chaves, it lost the right to insist on Chaves being dis-
patched through its hall."
The record is clear that, until the Chaves events, the
Employer had in essence ignored the restrictions of the
hiring hall provisions by utilizing the technique of re-
questing individuals by name through Local 304 in virtu-
ally all instances. Although there is some evidence that a
few nonspecific requests were made by the Employer
-since 1983, none of the individuals dispatched pursuant
to such requests had been hired. The General Counsel
emphasizes the Union had, until the Chaves matter, no
practice of asserting the 50-percent restriction quoted
`supra. Respondent Union admits that it was only when
the Chaves events came to pass that the Union sought to
specifically assert its right to limit the Employer's by-
name request of laborers.
There is other record evidence, however, that the
Union beginning in early 1986 was becoming dissatisfied
with the Employer's exclusive utilization of by-name re-
quest hiring. Indeed, Respondent Union's agents, Whitt
and Moreno, were each increasingly opposed to the Em-
ployer's excessive use of by-name requests when the
Union's out-of-work list contained numerous individuals
who were seeking dispatch." These union protestations
took on increasing vigor and reached a peak coincident
with the Employer's efforts to transfer Chaves to laborer
status. Based on this evidence, I find that Chaves was the
first individual whose dispatch status was at issue under
the Union's new determination to invoke the contract's
restrictions on by-name request hiring.
12 Because the contract allows the Union to acquiesce in an employer's
request of named individuals in excess of 50 percent, the General Counsel
does not contend that the parties violated the contract's terms.
13 The General Counsel's argument that the Union's asserted reasons
for opposing Chaves were mere pretext offered to cloak other, impermis-
sible, motivations is discussed infra,
14 By-name requests presumably do not draw from the out-of-work list
or, at the very least, do not take applicants in the order of priority set
forth in the contract.
Given these preliminary findings, the question remain-
ing is whether the Union could abandon its previous ac-
quiescence in the Employer's hiring practices and, in the
case of Chaves; for the first time assert the letter of the
contract to restrict by-name dispatch requests."
Without dealing with the question of an arbitrary or
invidious reason for the assertion, a matter to be dis-
cussed infra, I find that it is permissible for a union to
abandon a past practice of acquiescing in an employer's
excessive by-name requests and to assert the more re-
strictive provisions of the contract. I find that such a
change to a more restrictive view is not per se an unrea-
sonable or arbitrary action even when, inevitably, it op-
erates to deny, for the first time, a dispatch to an individ-
ual who would have obtained such a dispatch but for the
Union's new vigor in applying the terms of the contract.
Thus, I do not fmd the Union's change in its past prac-
tice to a new practice of holding the Employer to the
50-percent limit in by-name requests, and consequently
refusing Chaves a dispatch, was per se a violation of Sec-
tion 8(b)(2) by the Union."
4. Was the Union's opposition to Chaves based on
improper reasons?
-I have found, supra, that neither the contract by its
terms nor in its application by the Union, including the
Union's previous generous treatment of by-name requests
15 Counsel for Respondent Union in arguing the case orally at the con-
clusion of the hearing suggests that this question is not before me on the
facts of the case because the Employer never submitted a written request
for a by-name dispatch of Chaves as required by the contract and as pre-
viously done by the Employer I reject this argument. The submission of
a by-name request by the Employer on the facts of this case would have
been a futility. The Union's agent Whitt clearly informed both the Charg-
ing Party and Cassady, the Employer's agent, that Chaves could not be
dispatched pursuant to a by-name request under the contract because the
Employer was beyond the 50-percent limit and there were numerous ap-
plicants on the out-of-work list dispatch with dispatch priority over him
Thus, I view this case, contrary to the arguments of counsel for Re-
spondent Union, as no different than one where an employer had submit-
ted a written request for a by-name dispatch for an employee and the
union had refused to issue such a dispatch asserting that the employer
was in violation of the 50-percent limitation under the contract that
breach the Union was, for the first time, declining to waive.
16 The General Counsel also argues that by permittmg the Employer
to make by-name requests after Whitt had refused Chaves' dispatch, Re-
spondent Local 304 demonstrated that it did not, in fact, ever change its
previous practice of allowing unlimited by-name requests by the Employ-
er. Thus, the General Counsel argues the Chaves refusal was not the first
act.of a new policy but rather a one-time affair and "probably arbitrary
in nature." Although it is true that a few by-name dispatch requests of
the Employer were granted by the Union after Whitt had refused to dis-
patch Chaves, I do not find this evidence sufficient to undermine my
finding that the Union had in fact changed its policy and practice. This is
so because the actual dispatch procedure itself is managed by agents
other than Whitt so that it was possible for Whitt to be exhorting Re-
spondent Employer to restrict its by-name requests at the same time the
dispatchmg officials, ignorant of Whitt's actions, were granting them.
Second, it is also possible that the Union, in contemplation of the instant
litigation, may have been taking a "safe" position that would minimize
potential exposure to liability until the instant litigation was concluded.
Thus, it would avoid the danger of applicants similarly situated to
Chaves' filing new charges and new complaints issuing. Primarily, how-
ever, my resolution in finding the Union's change in attitude was sincere
and not limited to Chaves is grounded on the undisputed evidence that
Local 304's agents asserted such Intention both before Chaves was hired
by Respondent Employer and, m Whitt's case, before he knew Chaves'
identity.
CELL-CRETE CORP. 273
'Er
by the Employer and its subsequent limitation with con-
sequential adverse consequences to Chaves, supports a
finding of a violation of Section 8(b)(2) of the Act. The
General Counsel argues futher on brief:
In cases where the agreement permits or implies
discretion [to seek discharge], the Board still pre-
sumes a violation, and requires the charged party to
show "by evidence of a compelling or overriding
character" that its discretion was exercised in good
faith, not in an arbitrary manner, free of personal
and political animus and consistent with the pur-
poses of the agreement. [Glaziers Local 558 (PPG
Industries), 271 NLRB 583, 585 (1984).]
The General Counsel cites a host of cases in which the
Board has held that a union's exercise of such contrac-
tual discretion to cause an employee's discharge motivat-
ed by arbitrary, irrelevant, or invidious considerations
violates the Act, including Carpenters Local 1016 (Ber-
tram Construction), 272 NLRB 539 (1974) (employee
considered "bad news," a "troublemaker"); Carpenters
Local 720 (Stone & Webster), 274 NLRB 1506, 1511
(1975) (employee "aggravating" union representative);
Glasgow, Inc., 233 NLRB 126 (1977) (animus due to em-
ployee's role in jurisdictional work dispute).
'The General Counsel's argument is that for some
reason, and the General Counsel at no time was specific
in identifying that reason," the Teamsters and through
them Local 304 took dislike to Chaves as a result of per-
haps interunion or other protected conduct while repre-
sented by Teamsters Local 270. In the General Counsel's
theory the animus of Teamsters Local 270 agents was
conveyed to Whitt and others at Local 304. Under this
theory Local 304's agents, based on this hostility, dis-
criminated against Chaves initially by denying him an
initial dispatch or transfer in April and later by demand-
ing and obtaining his discharge in August 1986.
The General Counsel's evidence in support of the
theory includes statements attributed to Teamsters
agents, as set forth supra, which were made to the Em-
ployer's representatives and Whitt's remarks to the Em-
ployer's employees and agents in April and August.
Crediting employee Franklin's testimony, I have found
that, in fact, Whitt was actively hostile to Chaves during
his August trip to the Employer's premises and, as noted
supra, referred to Chaves as a troublemaker and other-
wise indicated a hostility to Chaves. I have also found
Whitt called Cassady immediately after the Teamsters
called to complain of Chaves.
The General Counsel's arguments regarding the basis
for this animus against Chaves is, however, not only
vague and without specific origin, it is also inconsistent
with critical elements of the uncontradicted evidence.
Thus, when Chaves first con lacted Durossette of the
Teamsters, a time when on this record there is no sug-
gestion that Durossette knew anything about his past,
Durossette took severe umbrage with Chaves' attempts
" Chaves was not asked and did not testify regarding any belief or
even supposition he might have why either the Teamsters agents or
Local 304's agents would be hostile to him as an individual or as a
member of a class or group.
to obtain employment with Cell-Crete by bypassing the
hiring hall dispatch system. Thus, the first clear evidence
of hostility to Chaves, which is later similarly manifested
in perhaps more abusive form by other Teamsters and
Laborers agents, occurred at a time when no possible
knowledge could have existed of any other activities or
opinions Chaves held save his willingness to bypass the
hiring hall process and obtain a job "off the street." I
find substantial evidence to support and little basis to
doubt a finding that the union agents' ongoing hostility
to both Chaves and Cell-Crete was based entirely on that
ground. Thus, both Teamsters agents in their contacts
with the Employer, while hostile to Chaves in a more
general sense, addressed primarily both his and the Em-
ployer's impropriety in seeking to bypass the hiring hall
system at a time when there were many individuals on
the out-of-work list seeking an opportunity to be dis-
patched. Without suggesting that it is impossible for
labor organization officials to form adverse judgments of
individuals based on their internal union political views,
on jurisdictional disputes or on any of the numerous
bases the Board has held violates a union's obligations
under Section 8(b)(1)(A) and (2) of the Act and the cited
cases, it is also true that some labor organization officials
do form adverse judgments of individuals who attempt
to bypass contractual hiring hall provisions. On the facts
of this case, the General Counsel is suggesting that the
animus directed toward Chaves is based on something
other than such a view. Yet the General Counsel: (1)
made no specific reference to other Chaves' acts, opin-
ions, or status that would have engendered improper
hostility, (2) did not call the Teamsters agents to inquire
about the basis of their hostility to Chaves, and (3) failed
to adduce evidence from Chaves regarding even specula-
tion about the basis of the animosity that the General
Counsel advances as improper. Whitt to the contrary
denied any hostility to Chaves other than that resulting
from his participation with the Employer in a scheme for
bypassing the hiring hall system. Contrasted to the lack
of evidence supporting the General Counsel's theory,
there is uncontradicted evidence that the union officials
involved reacted hostilely to Chaves and the Employer's
attempts to bypass the hiring hall system before Chaves
was otherwise known to them. Further, those individuals
have been exhorting Respondent Employer's agents to
utilize the contractual hiring hall process well before
Chaves was employed by Respondent in any capacity.
Based on all the above, I am unable to sustain the con-
tention of the General Counsel that the actions of Re-
spondent Union in this case were based on arbitrary; in-
vidious, or unfair reasons. Rather I find, on this record,
the General Counsel has failed to establish that there was
any other reason for hostility toward Chaves than the
belief Chaves was the undeserving beneficiary of the
Employer's improper manipulation of the hiring hall pro-
cedures, a manipulation which, in Local 304's view, was
in violation of the contract and adverse to the hiring hall
registrants to whom the union agents felt an obligation.
Accordingly, based on all the above and the record as a
whole, I find the Union did not seek Chaves' termination
from the Employer for arbitrary or invidious reasons.
274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Union's actions in seeking Chaves' discharge was
therefore not improper.
5. Summary and conclusions
I have found above that the contract provides a sound
basis both by its terms and in its application for the
Union's denial of Chaves a dispatch and the subsequent
seeking of his termination from Respondent Employer. I
have also found that it was not improper for the Union
to have changed its practices regarding limitation of the
Employer's use of by-name dispatch requests. I have fur-
ther found that there was no improper motive for the
Union in seeking Chaves' discharge. It follows, therefore,
that the Union did not violate Section 8(b)(1)(A) or (2)
of the Act by its conduct and I shall dismiss the com-
plaint with respect to Local 304.
An employer, such as Respondent Employer, when it
acquiesces in a union's request for the discharge of an
employee for being in violation of hiring hall procedures,
it is at risk if the union has violated the Act in making
such a request. If a union has a valid reason for making
its discharge request, it is not a violation of Section
8(a)(1) and (3) of the Act for an employer to accede to
such a request. I have found such to be the case here.
Accordingly, I find that the Employer did not violate
Section 8(a)(1) and (3) of the Act when it discharged
Chaves in accordance with the Union's demand. This
being so, the Employer has not violated the Act and I
shall dismiss the complaint with respect to it.
On the foregoing findings of fact, and the entire
record, I make the following
CONCLUSIONS OF LAW
1. Respondent Employer is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent Union did not violate Section 8(b)(1)(A)-
and (2) of the Act when it requested the discharge of
Fernando L. Chaves in August 1986.
4. Respondent Employer did not violate Section
8(a)(1) and (3) of the Act by discharging Fernando L.
Chaves in August 1986.
5. Respondents have not otherwise violated the Act.
[Recommended Order for dismissal omitted from pub-
lication.]