DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Construction, Production & Maintenance Laborers'
Local 383, Laborers' International Union of
North America, AFL-CIO (Arizona Building
Chapter, Associated General Contractors, et al.)
and Gustavo Gutierrez. Cases 28-CB-1919 and
28-CB-1948
2 June 1983
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
JENKINS AND HUNTER
On 16 December 1982 Administrative Law
Judge Clifford H. Anderson issued the attached
Decision in this proceeding. Thereafter, Respond-
ent filed exceptions and a supporting brief, and the
General Counsel filed a brief in answer to Re-
spondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order.
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 and
hereby orders that the Respondent, Construction,
Production & Maintenance Laborers' Local 383,
Laborers' International Union of North America,
AFL-CIO, Phoenix, Arizona, its officers, agents,
and representatives, shall take the action set forth
in the said recommended Order.
i 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.
2 We do not agree with the Administrative Law Judge's analysis of the
6 May 1982 incident in which Respondent Union deleted the name of
Gustavo Gutierrez from its out-of-work list. We find it unnecessary,
however, to determine whether Respondent Union violated Sec.
8(b)(1)(A) and (2) by this action Any remedy we would order if we
were to find a violation in this incident swould merely be cumulative and
would not affect the remedy already provided
DECISION
STATEMENT OF THE CASE
CIAlFFORD H. ANDERSON, Administrative Law Judge:
This consolidated matter was heard before me in Phoe-
266 NLRB No. 164
nix, Arizonia, on September 30, 1982. The matter arose
as follows. On March 25, 1982,1 Gustavo Gutierrez, an
individual, filed a charge docketed as Case 28-CB-1919
against Construction, Production & Maintenance Labor-
ers' Local 383, Laborers' International Union of North
America, AFL-CIO (the Union or Respondent), and
amended that charge on May 5. On May 6 the Regional
Director for Region 28 of the National Labor Relations
Board (Regional Director) issued a complaint and notice
of hearing based on the amended charge. On May 25,
Gutierrez filed a charge, docketed as Case 28-CB-1948,
against Respondent. On June 16 the Regional Director
issued a complaint based on Case 28-CB-1948 and an
order consolidating cases consolidating the two com-
plaints for a common hearing. Thereafter appropriate
orders setting and rescheduling the time of the hearing
issued.
The complaints allege that the Union in March and
May adversely affected the placement of Gutierrez'
name on the Union's out-of-work list used in dispatching
applicants to jobs under the hiring hall provisions of col-
lective-bargaining agreements with area employers. The
complaints allege that the Union took these actions be-
cause of Gutierrez' efforts with other members to oppose
the Union's incumbent administration, and therefore vio-
lated Section 8(b)(1)(A) and (2) of the Act. The Union
denies that it has violated the Act.
FINDINGS OF FACT
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.
Upon the entire record herein, including briefs from
the General Counsel and Respondent, 2 and from my ob-
servation of the witnesses and their demeanor, I make
the following findings of fact.3
1. JURISDICTION
At all times material herein, the Arizona Building
Chapter, Associated General Contractors, and the Asso-
All dates refer to 1982 unless otherwise indicated.
2 The due date for filing of posthearing briefs pursuant to the Board's
Rules and Regulations, Sec 102.42, was set by me at the hearing as No-
vember 4, 1982. Thereafter the due date for filing was extended to De-
cember 3, 1982 The Union's brief was timely received although it lacked
the statement of service on other parties required by the rules. The Gen-
eral Counsel's brief included such a statement but was not received until
December 6, 1982. The General Counsel's brief was transmitted by first
class certified mail and mailed on December 2, 1982. At the hearing I
specifically noted that the parties were obligated to select a means of
transmission for their briefs which would reasonably be expected to
achieve delivery by the time set. I further noted that briefs sent by regu-
lar mail from Arizona should be mailed 2 days before the due date. Thus,
in my view counsel for the General Counsel, after being sepcifically
warned, failed to take reasonable care to insure timely delivery of her
brief I find the posthearing submissions of the parties were each defec-
tive under the rules and that each was accordingly susceptible to being
stricken. However, since there were defects in each party's post-hearing
submission, I deem it appropriate to receive both
3 Where not otherwise noted, these findings are based on stipulations,
admitted pleadings, or unchalleged credible testimonial or documentary
evidence The unopposed motion of the General Counsel to correct the
transcript is hereby granted.
934
LABORERS LOCAL 383
ciated General Contractors, Arizona Chapter (hereinafter
collectively referred to as the Associations), have each
been associations of employers which exist for the pur-
pose of, inter alia, engaging in collective bargaining on
behalf of their respective employer-members with Re-
spondent, negotiating collective-bargaining agreements,
and resolving grievances arising in connection with col-
lective-bargaining agreements among the employees of
their respective employer-members.
During the past calendar year, which period is repre-
sentative of their annual operations generally, the em-
ployer-members of each of the Associations, who are pri-
marily engaged in performing services in the building
and construction industry, during the course and conduct
of their respective business operations, have collectively
purchased goods and materials valued in excess of
$50,000 and have caused the same to be transported in
interstate commerce and delivered to their respective
places of business within the State of Arizona, directed
from States of the United States other than the State of
Arizona.
II. LABOR ORGANIZATION
Respondent is now, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union and the Associations have at all relevant
times maintained collective-bargaining agreements which
provide, inter alia, for the operation of an exclusive
hiring hall by the Union. The contracts obligate employ-
ers to request laborers from the hall in accordance with
the Union's hiring hail procedures.
The hiring hall referral procedures include provisions
for employer requests of specific individuals and for re-
quests for general applicants. Calls for general referents
without specification by name are filled by the Union
from names on the out-of-work list on a first-in first-out
basis. An individual on the out-of-work list who has risen
to the top of the list may not refuse to accept an employ-
ment referral without having his or her name dropped
from the list. An exception to this procedure exists
where requests are made for individuals with special
skills which the particular referral applicant is not quali-
fied to perform. These specialized requests are filled by
referral of the highest individual on the list possessing
the necessary skills or qualifications.
In 1979 the following referral rule was adopted by the
Union:
Any person dispatched who fails to appear as dis-
patched and who willfully has by his/her action
denied other registrants the right to a dispatch, shall
be considered as worked and shall be placed at the
bottom of the proper respective list.
Any such aggrieved person upon appeal, under
the provisions of the collective-bargaining agree-
ment, will be granted a hearing so that his/her
action may be reviewed and justified.
The individual who had been dispatched would normally
sign at the bottom of the list upon conclusion of employ-
ment. In circumstances where the job received does not
last more than a day, the referent may have his or her
name returned to its previous position at the top of the
list upon request.
B. The Individuals and Companies Involved Herein
At relevant times, John Moya, Sr., was the business
manager and secretary-treasurer of the Union. He had
overall responsibility for the operation of the Union and
the hiring hall procedures. Librada "Libby"' Rodriguez
was the dispatcher for the Union. Her duties included
the operation of the dispatch process. She received and
recorded requests for referents by employers, made job
referral announcements in the hall, maintained the
Union's out-of-work or dispatch lists, and maintained and
prepared other records necessary to the hiring hall func-
tion at the Union.
Gustavo Gutierrez is a man of substantial physical pro-
portions. During relevant times he was a classic example
of a militant union dissident. He was a former union busi-
ness agent, an active reformist, and leader of a portion of
the membership openly opposed to the personalities and
policies of the Union's leadership. By publicity, organiza-
tion, litigation, charges with the Board, intraunion politi-
cal campaigns, and complaints to the Union's governing
International, and by various other means, Gutierrez
sought to resist the Union's incumbents, change their
policies, rally support in opposition against them, and ul-
timately to replace them. In these ongoing disputes, at
least through the events in question herein, Gutierrez
was an active and public leader of the Union's opposition
forces.
Bell Bottom Foundation of Arizona (Bell Bottom),
with an office located in Phoenix, is an employer who
utilizes the Union's hiring hall. Among the types of la-
borers requested through the hall, Bell Bottom had occa-
sion to request caisson cleaners, whose function was to
enter and clean out the caissons used by Bell Bottom in
constructing building foundations. While the skills of
such individuals are not necessarily specialized, any la-
borer undertaking the work must be unusually diminu-
tive so as to be able to pass through the narrow openings
and passages in the equipment.
C. Events
Antonio Moreno, a longtime member of the Union and
regular user of the hiring hall, testified that he received a
job dispatch on March 24 after his name had worked its
way to the top of the out-of-work list. The dispatch was
for a job starting on March 25 at an employer with a
Phoenix address. Moreno was unable to locate the em-
ployer when attempting to report to work on March 25.
He called the employer and was told that the correct lo-
cation of the worksite was in Mesa, a separate city. He
was also told by the employer that the job was going to
be canceled and he would not be able to work. Moreno
then returned to the union hall and spoke to Rodriguez.
He told her that he could not find the location of the job
listed on the referral. He also asked her if he would be
935
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paid "show-up time." She answered, in Moreno's
memory, that he would not because he did not physical-
ly go to the job. Moreno asked Rodriguez if he would
keep his place on the out-of-work list and she replied
that he would retain his former position. He did so.
That same day, March 25, Moreno obtained a new dis-
patch calling for a March 26, 6:30 a.m., report at Bell
Bottom. Moreno testified that he listened closely for any
job call because he knew he was first on the list. Rodri-
guez called out a job for two men and then announced
his name and another's. While he could not recall at
which point she made the statement, Moreno testified
that Rodriguez told him the job referral was to Bell
Bottom for cleaning bottom holes. She did not mention
the size of the holes. Moreno testified that he never did
learn what type of holes were involved in the Bell
Bottom job.
Gutierrez testified that on the afternoon of March 25
he knew he was second on the out-of-work list. He was
waiting at the hall when he heard Rodriguez call out
two jobs for Bell Bottom and then call Moreno's name
and his own. Consistent with normal procedure, he stood
behind Moreno at the dispatcher's window while
Moreno obtained his dispatch slip. He testified he over-
heard Moreno ask Rodriguez if he would be bypassed if
he did not take the job.4 Rodriguez said he would.
Thereafter Gutierrez obtained his dispatch slip from Ro-
driguez without engaging in any conversation.
Rodriguez testified that on March 25 she received a
telephone request from Bell Bottom requesting two cais-
son cleaners. She knew from experience that workers for
such jobs must be small. She announced the job to the
waiting referral applicants, recalling that she said that
two caisson hold cleaners were requested and that they
should be small. She testified that Moreno and Gutierrez
came to her window and were issued dispatches to the
job. She also testified that she knew that the job call re-
quired small workers, but that when Gutierrez came to
the window for his referral slip she issued it to him with-
out comment based on the assumption that he was more
knowledgeable about job requirements than she.
The next morning Gutierrez and Moreno independent-
ly left their homes and attempted to locate Bell Bottom.
The morning was quite dark and the weather was in-
clement. Moreno had some trouble finding the job and
arrived late. He was told by Ralph Blehm, Bell Bottom's
assistant manager, that the rain made the job too wet.
Blehm told him to go home and come back later to pick
up his show-up time. Moreno left and telephoned Bell
Bottom around noon. He was told it was still too wet to
work. He returned to the job and picked up his show-up
wages and his referral slip which reflected that his work
was completed. Moreno then went to the hiring hall at
or around 3 p.m. He testified that he turned in his refer-
ral slip to Rodriguez and told her that the job had been
canceled. She returned Moreno to his previous place on
the out-of-work list and soon thereafter he was referred
to another job. Rodriguez testified that she had no recol-
lection of these events but did not dispute their occur-
rence.
4 Bypassing an individual on the list results in the loss of his position
on the list.
Gutierrez had great difficulty locating the jobsite that
morning and decided to telephone the job for directions.
He also had trouble locating the correct telephone
number for the site but finally reached Blehm. Gutierrez
testified that Blehm told him that the employer had can-
celed the order for men because of the rain. Gutierrez
told Blehm that he had to have his referral slip signed by
the employer so that he could get back on the out-of-
work list. He obtained directions to the site and went to
the job. Blehm testified that Gutierrez called him and
told him he could not find the site. Blehm told Gutierrez
it did not matter because the weather made work impos-
sible. Blehm recalled Gutierrez then stated he wanted his
slip signed and Blehm gave him directions to the site.
Blehm testified that after this conversation with Gu-
tierrez he looked in his desk for termination slips and
could not locate any. He then called the union hall. He
first spoke to Rodriguez and then to John Moya. Fol-
lowing a discussion regarding union referral slips and
how they were to be used, Blehn told Moya that Gutier-
rez said he needed his termination slip signed for the
union hall records. He continued telling Moya that the
job was canceled due to rain and that there had only
been I day's work for the requested men. Moya testified
that he recalled a telephone conversation with Blehm but
did not remember Blehm making any reference to Gu-
tierrez by name. Rather, he recalled that Blehm told him
that he had received a call from one of the laborers who
had not shown up at the site and that the laborer had
asked for a referral slip that stated he had been terminat-
ed because of job completion. Moya recalled Blehm
asked him what he should put on the referral slip and
that Moya told him to put down the truth.
Gutierrez testified that he went to the Bell Bottom
office and there spoke to Blehm who referred him to Art
Rollinson, another official of the company. Gutierrez
spoke to Rollinson but was interrupted by a phone call,
apparently from Moreno reporting in to Rollinson. Gu-
tierrez overheard Rollinson tell the caller to come in and
pick up his show-up pay. After the call the conversation
resumed. Gutierrez asked Rollinson to fill out his referral
slip so that he could get back on the out-of-work list.
Gutierrez indicated he thought he was being blackballed
by the Union. Rollinson started to fill out the slip writing
that Gutierrez could not locate the job. Gutierrez pro-
tested that he was at the job and Rollinson crossed out
the notation and entered "Is to [sic] large for cleaning
holes. "5 Rollinson told Gutierrez that he could not climb
inside a caisson either. Gutierrez then left without asking
for or receiving show-up pay.
Gutierrez then returned home but later went to the
hiring hall. He went to the dispatch window and there
spoke to Rodriguez. He testified he gave her the filled-in
referral and his union membership card. She opened the
out-of-work registry and entered his name, not at its pre-
vious location, but at the bottom of the list. Gutierrez
testified that he asked her why she was putting his name
at the bottom of the list and that she answered, in his
I There was no doubt that Gutierrez' substantial dimensions made it
impossible for him to physically enter and clean caisson holes-which are
some 22 inches in diameter.
936
LABORERS LOCAL 383
memory, "Because Mr. Moya told me so." Gutierrez was
taken aback by this and retreated for a brief time. Then
he spoke to a nearby fellow member, Walter "Bud"
Beasley, and asked him to be his witness. The two re-
turned to the dispatch window. The following events
were testified to by Beasley:
So we approached the windows, double window
and [Gutierrez] was at one and I was at the other.
He asked Libby if Mr. Moya told her to put him on
the bottom of the list and she said, "Yes."
Then Gus said, "Well, what reason did he give
you?" And she said, "He didn't have to give me a
reason," just more or less he paid the bills so she
said, "He didn't have to give me a reason."
This version of events was corroborated by Gutierrez.
Rodriguez however testified that she had no recollection
of speaking to Gutierrez at this time. Nor did she recall
receiving his referral slip. Both Moya and Rodriguez
denied that they had spoken together about Gutierrez'
place on the list. Indeed, Moya denied knowing anything
about Gutierrez' dispatch or his out-of-work list place-
ment difficulties at the time.
Moya, however, in a signed sworn statement given on
April 20, 1982, stated:
Because of the information I received that Gutier-
rez had not reported for work at Bell Bottom, I ad-
vised the dispatcher to put him at the bottom of the
list in accordance with the long standing practice at
Local 383 that employees who accept work and fail
to report will lose their place on the hiring hall
absent some good excuse for not reporting. When
an employee is ill or has car trouble, he will gener-
ally not lose his place on the list for reporting to
work. Such was not the case, however, with Gu-
tierrez.
Moya's recollection on the stand was not refreshed by
reading the above quotation. He did not attack the truth
of the statement but rather asserted he simply had no
current memory of the events it recited. Gutierrez testi-
fied that he filed the instant original charge that after-
noon.
Sometime thereafter Gutierrez again signed the out-of-
work list placing his name at the bottom. On or about
May 6 Gutierrez checked the out-of-work list and noted
that his name had been removed. Gutierrez testified that
he then asked Rodriguez why his name was not on the
list. She answered that he had missed roll call. 6 Gutier-
rez denied this and told her he had witnesses. Rodriguez
walked away briefly and soon returned, whereupon she
restored Gutierrez' name to its former position on the
list. No referrals were lost as a result of this temporary
removal of Gutierrez' name. Rodriguez' memory of the
event was not clear. She testified that she seemed to
recall that Gutierrez had missed roll call but later that he
had restored his name to the list.
' For a referral applicant to retain his or her position on the out-of-
work list, the applicant must he present at periodic roll calls
D. Analysis and Conclusions
1. Arguments of the parties
The General Counsel, citing unchallenged Board doc-
trine, argues that a union cannot properly discriminate
against a hiring hall applicant because of his internal
union activities. Further, the General Counsel argues a
union may not deviate from its regular hiring hall proce-
dures in a manner which denies employment opportuni-
ties to applicants without inherently encouraging union
membership and thus violating the Act, citing N.L.R.B.
v. Iron Workers Local 433, 598 F.2d 154, fn. 5 (9th Cir.
1979), quoting with approval Electrical Workers Local
592 (United Engineers & Construction Co.), 223 NLRB
899, 901 (1976).
Counsel for the General Counsel notes the activities of
Gutierrez in organizing opposition to the Union's incum-
bents must be judged as more threatening to the Union
than the relatively limited strength of that opposition.
Thus, the preceived threat, not the reality, is advanced as
relevant. She also argues that the March events were the
first opportunity that the Union had to adversely influ-
ence Gutierrez' employment prospects. The General
Counsel also argues that, irrespective of any findings of
animus, Respondent must be found to have violated the
Act because it failed to follow its regular hiring proce-
dures, as illustrated by the treatment of Moreno, to Gu-
tierrez' detriment. In this connection it is argued that the
May events must be viewed as a followup act of discrim-
ination, a "potent jab to the memory," reminding Gutier-
rez and others of the Union's unlawful control over em-
ployment opportunities.
Respondent challenges several contentions of the Gen-
eral Counsel. First, while conceding the active dissident
conduct of Gutierrez and the protected status of that
conduct under the Act, the Union notes the paucity of
evidence that Moya or current union agents have made
threats or shown animus against Gutierrez. Counsel for
the Union argues that Gutierrez was simply not per-
ceived as a realistic threat by Moya and the union lead-
ership given the lack of member support for him as re-
flected in the 1982 union election. The Union also argues
that, contrary to the General Counsel's assertions at
hearing, there was neither evidence that the Union and
Gutierrez had difficulties which came to a head in 1982,
nor evidence of previous illegal union discrimination
against Gutierrez. Second, the Union argues, based on
the testimony of Rodriguez, noted supra, that Gutierrez
did not return to the hiring hall on March 26 to explain
the earlier events of the day. Had he done so, counsel
for the Union argues, Gutierrez still would not have
been eligible to retain his place on the list because he
failed to timely show up for work as required by his dis-
patch to Bell Bottom.
With respect to the May delisting allegation, the
Union argues that its error was inadvertent, merely cleri-
cal, and was corrected immediately upon its discovery.
Counsel for the Union notes the agreement of all parties
that Gutierrez suffered no loss of employment opportuni-
ties as a result of the error and further argues that any
violation which occurred is at best technical.
937
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Resolution of credibility
Few directly contradictory versions of events appear
on the record. Moreno was essentially uncontradicted
and was a highly credible witness with a sound demean-
or and no apparent interest in shaping his testimony. I
fully credit his testimony. Blehm was a forthright witness
with an excellent demeanor and a good memory of
events. He, too, had no apparent reason to shade his an-
swers. I fully credit his testimony even where it was at
variance with Moya as to the substance of their tele-
phone conversation. Beasley's brief testimony was
straightforward and unambiguous. I was impressed by
his apparent honesty and guileless demeanor. I fully
credit him.
Moya and Rodriguez testified that they did not recall
certain events testified to by others. Thus, Rodriguez did
not recall seeing Gutierrez on March 26 nor having the
two conversations described by Gutierrez. Beasley's cor-
roboration of Gutierrez' account of the second conversa-
tion convinces me that both Gutierrez and Beasley were
correct and that Rodriguez has suffered a failure of
recollection. Moya expressed no recollection of having
had knowledge of Gutierrez' activities on March 26. He
denied issuing orders to Rodriguez to drop Gutierrez'
name from the hiring hall list. I have credited Blehm's
version of the Moya-Blehm telephone call on the morn-
ing of March 26, therefore I find Blehm identified Gu-
tierrez to Moya. I further credit the pretrial affidavit of
Moya that he learned of Gutierrez' difficulties from
Blehm and told Rodriguez to drop Gutierrez from the
hiring hall list. Indeed, Moya did not dispute his earlier
written statement; rather, he merely testified he had no
recollection of the actions as of the time of the hearing.
It is therefore not necessary to specifically discredit
Moya's testimony to find that the events of March 25
and 26 occurred as noted in his affidavit 7 and in Blehm's
and Gutierrez' testimony. I do so here.
These findings require that I discredit Rodriguez'
denial that Moya told her to remove Gutierrez' name
from the list. I do so without hesitation given the cred-
ited testimony by Beasley and Gutierrez as to what she
said and did. Like Moya I believe that Rodriguez has
suffered a failure of recollection.
Gutierrez has been credited, supra, where his testimo-
ny was in conflict with others. The bulk of his testimony
was not contradicted and is also credited. His demeanor
was impressive. One portion of his testimony, however,
is inconsistent with other evidence and is discredited.
Gutierrez testified that, after his altercation with Rodri-
guez on March 26, he went to the Board offices and filed
a charge. The original charge in Case 28-CB-1919 was
filed on March 25 and is time-stamped as received at the
Board offices at 11:26. Thus, it is clear that the charge
was filed on the day before. At that time Gutierrez had
not received his dispatch to Bell Bottom. There is no
record evidence that any other charge was filed by Gu-
tierrez on March 26. It is clear therefore that Gutierrez
was mistaken in his testimony. More likely he went to
the Board the afternoon of March 26 to report that day's
7 Moya's affidavit is receivable substantively because it is not hearsay
as defined in the Fed. R. Evid 801(d)(1)(A) and 801(d)(2).
events as part of his evidence in support of his March 25
charge.
3. Analysis
I have considered the uncontradicted evidence and the
legal and factual arguments of counsel in light of the
credibility resolutions made, supra, and the record as a
whole. For the reasons which follow, I conclude that the
Union violated Section 8(b)(l)(A) and (2) of the Act
when it dropped Gutierrez' name from the hiring hall list
on March 26 rather than restoring his name to the posi-
tion it enjoyed at the time of his Bell Bottom dispatch. I
further conclude that the Union also violated Section
8(b)(1)(A) of the Act when it temporarily deleted Gu-
tierrez' name from the out-of-work list in May. As to this
latter violation, however, I also find, in agreement with
the Union, that the violation does not affect the remedy
ordered in the cases.
Turning initially to the March 26 events, it is clear and
I have found that Moya ordered Rodriguez to drop Gu-
tierrez' name based on the information gleaned in Moya's
phone call with Blehm. It is also clear that it was rare
for Moya to interfere with Rodriguez in her operation of
the referral process. I have credited Blehm that he told
Moya of the cancellation of the Bell Bottom job and of
the job's maximum 1-day duration. Either circumstance
would properly require reinstatement or retention of Gu-
tierrez' name on the list under the Union's procedures
and practice. Rodriguez, who had authority to and regu-
larly did reinstate referents' names on the list when the
initial job was canceled due to weather, or when the job
was no more than I day in duration, did not act on Gu-
tierrez' representations to her on the afternoon of the
26th. Yet she did restore Moreno's name to its previous
position. Rather she merely told Gutierrez she had re-
ceived orders from Moya to drop his name. This was
done even though Gutierrez had a slip from Bell Bottom
which stated that Gutierrez was too large for the job.
She thus failed to restore his place on the list, apparently
due to Moya's orders, despite evidence supplied by Gu-
tierrez which justified his restoration under the Union's
rules.
I reject the argument of the Union that Gutierrez
properly lost his place because of his late arrival at the
Bell Bottom job. The assertion is not supported by the
1979 union resolution quoted supra, which by its terms
penalizes only those that fail to appear as dispatched and
also "denied other registrants the right to a dispatch."
Second, the assertion is completely inconsistent with the
Union's hiring hall practices as evidenced both by Mor-
eno's experiences and by Moya's testimony regarding the
relative ease with which the name-dropping was amelior-
iated for applicants who claimed extenuating circum-
stances. While the Union asserts Gutierrez could have
come to Moya and explained his situation, I have found
Moya knew of the critical extenuating factors before he
instructed Rodriguez to drop his name.
I am in general agreement with the Union that the ex-
tensive evidence offered by the General Counsel regard-
ing Gutierrez' activities against the Union's incumbent
officers must be heavily discounted by the paucity of evi-
938
LABORERS LOCAL 383
dence of discrimination or threats against Gutierrez by
Moya or other union agents at relevant times. Clearly it
may not be simply assumed that union reform advocates,
howsoever active and even strident they are, inevitably
engender sufficient animus on the part of the trade union
officers to stimulate illegal discrimination. Given the un-
usual circumstances of March 26 found above however, I
am satisfied that counsel for the General Counsel has
met her burden of proof and has shown that the conduct
of the Union in denying Gutierrez his former place on
the list was in violation of Section 8(b)(1)(A) and (2) of
the Act. The Union's actions on that occasion were so
unusual, arbitrary, and unreasonable as to require the in-
ference, which I draw, that they were taken because of
Gutierrez' dissident union activity. I make this finding
even without greater evidence of animus by the Union.
Indeed, even without evidence of animus, as the General
Counsel argues, the Union's disregard for its precedures
would sustain the General Counsel's allegations herein
under current Board law.
The May name deletion event could arguably have
been an innocent clerical error. The Union did not dis-
pute the existence of an error either to Gutierrez at the
time he complained or at the hearing. Rather, the Union
correctly asserts that the error was quickly remedied and
that there is little evidence it was other than as a result
of inadvertence. While I agree that the consequences of
the deletion were minimized by the subsequent restora-
tion of Gutierrez' name to its proper place on the list, I
cannot find the error mere inadvertence given the con-
text of events herein. On this record the General Counsel
may rely on the circumstances of the earlier illegal act,
as found supra, to carry the May allegation where there
is no contrary evidence offered to support the Union's
claim of innocent error. In this sense, the burden of
going forward as to May had been shifted to the Union
by the findings as to March. The Union failed to affirma-
tively prove that the May event was but innocent error.
I therefore find the May name deletion was also a viola-
tion of Section 8(b)(1)(A) of the Act. It is clear, howev-
er, that the brief deletion of Gutierrez' name from the list
had no adverse effect on his employment prospects. Fur-
ther, as but a second violation of Section 8(b)(1)(A) of
the Act, the violation does not expand the appropriate
remedy ordered, infra.
Upon the foregoing findings of fact and the entire
record herein, I make the following:
CONCLUSIONS OF LAW
1. The Associations are employers engaged in com-
merce within the meaning Section 2(2), (6), and (7) of
the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Union violated Section 8(b)(1)(A) of the Act by
deleting the name of Gustavo Gutierrez from the Union's
hiring hall out-of-work list in March and May 1982, be-
cause of his internal union activities.
4. The Union violated Section 8(b)(2) of the Act by
deleting the name of Gutierrez from the Union's hiring
hall out-of-work list in March 1982 thereby preventing
him from being dispatched to employment with an em-
ployer because of his union activities, thereby causing
that employer to discriminate against Gutierrez in viola-
tion of Section 8(a)(3) of the Act.
THE REMEDY
Having found that the Union engaged in certain unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
I shall recommend that the Union make Gutierrez
whole for any loss of earnings he may have suffered as a
result of the denial of his dispatching opportunities. I
shall further require the Union to make him whole for
any loss of nonwage benefits he would have earned had
he been dispatched in accordance with a nondiscrimina-
tory application of hiring hall procedures including ac-
crued hours used for group eligibility under the dispatch
classifications and loss of nonwage fringe benefits. Back-
pay shall be computed in accordance with Board policy
as described in F W. Woolworth Co., 90 NLRB 289
(1950), and Isis Plumbing & Heating Co., 138 NLRB 716
(1962). Moneys due shall accrue interest in accordance
with Board policy as described in Florida Steel Corp., 231
NLRB 651 (1977). The Union will also be ordered to
preserve and, upon request, provide to the Regional Di-
rector or his agents, for inspection and copying, all
records necessary to determine the amount of backpay
due under the terms of this Order and to ensure that its
terms have been fully complied with.
I shall also require the Union to post customary reme-
dial notices. The Union shall also be required to submit
appropriate signed copies of the notice to the Regional
Director for submission to the Association for posting,
should it be willing.
There is some evidence that communication with all of
the Union's membership would be best assured by provi-
sion of bilingual notice. 8 The General Counsel has not
asked for such a remedy beyond asking for an "appropri-
ate" notice on brief. The Board has held in Doral Hotel
& Country Club, 240 NLRB 1112, fn. 3 (1979), that bilin-
gual notices shall not be provided where the record does
not reflect that the employees involved do not speak
English or primarily speak another language. I am of the
view that the need to effectively communicate the mean-
ing and content of the Board's notice to employees is of
sufficient importance to direct bilingual posting even
where evidence of need is slight.9 I shall do so here.
I Gutierrez' intraunion literature was bilingual; i e., both in Spanish and
English.
9 The Board normally orders its notices posted in "customary" loca-
tions without greater specificity. The Regional Director in the compli-
ance stage of the proceeding normally determines the number and loca-
tion of notices for posting. See, e.g., National Labor Relations Board
Case-handling Manual, sec. 10526.3. So, too, when ordering the posting
of bilingual notices, the Board issues only an English language notice and
the Regional Director causes that notice to be translated into the appro-
priate additional languages. Thus, the Regonal Director determines the
exact language used on the non-English notices This delegation of dis-
cretion by the Board to the Regional Director in regard to notices has
not in my experience caused much dispute or litigation It also seems ap-
propriate to allow the Regional Director, in his or her informed discre-
lion, a similar latitude or discretion to determine if notice posting should
Continued
939
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I issue the follow-
ing recommended Order:
ORDER' °
The Respondent, Construction, Production & Mainte-
nance Laborers' Local 383, Laborers' International
Union of North America, AFL-CIO, Phoenix, Arizonia,
its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Deleting, dropping, or otherwise removing referral
applicants' names from the Union's hiring hall out-of-
work list because of their internal union activities.
(b) Causing or attempting to cause the Associations
and their member-employers to discriminate against em-
ployees in violation of Section 8(a)(3) of the Act because
of the employees' internal union activities.
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative acton which is
deemed necessary to effectuate the policies of the Act:
(a) Make Gustavo Gutierrez whole for any loss of
earnings and other benefits he may have suffered by
reason of the discrimination against him together with
appropriate interest in the manner set forth in the section
of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
records, reports, work lists, and other documents neces-
sary to analyze the amount of backpay due under the
terms of this Decision and Order and to otherwise ensure
the terms of this Order have been fully complied with.
(c) Post at all places where notices to applicants for
referral and members are posted copies of the attached
notice marked "Appendix,"" as well as a Spanish lan-
include notices in languages other than English. It is increasingly true
that demographic circumstances may change after a hearing which
changes would not affect the merits of a case nor the English version of
any remedial notice but would affect the number of languages on which
the notice should be posted. Disputes regarding an exercise of the Re-
gional Director's compliance discretion in this regard will likely be few
and would be susceptible to resolution, if necessary, on motion to the
Board or in subsequent hearings.
Io In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
II In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
guage version thereof, if found appropriate by the Re-
gional Director. Copies of said notice, on forms provided
by the Regional Director for Region 28, after being duly
signed by Respondent's 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 are customarily posted. Reasonable steps shall
be taken by Respondent to ensure that said notices are
not altered, defaced, or covered by any other material.
(d) Return to the Regional Director appropriate signed
copies of the attached notice marked "Appendix" for
restransmission to the Associations for posting, should
they be willing.
(d) Notify the Regional Director for Region 28, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had a chance to
present evidence, the National Labor Relations Board
has found that we violated the National Labor Relations
Act and has ordered us to post this notice and to obey
its terms.
The National Labor Relations Act obligates unions, in-
cluding this Union, to operate their hiring halls on a non-
discriminatory basis.
WE WILL NOT drop the names of hiring hall reg-
istrants from our out-of-work lists because they
oppose the Union's officers and policies.
WE WILL NOT cause or attempt to cause employ-
ers to discriminate against employee applicants be-
cause of their union activities by dropping them
from their proper place on hiring hall out-of-work
lists.
WE WILL NOT in any like or related manner re-
strain or coerce employees or cause employers to
restrain or coerce employees in the exercise of the
rights guaranteed them in Section 7 of the National
Labor Relations Act.
WE WILL make whole Gustavo Gutierrez for any
and all losses he may have suffered because of our
discrimination against him and WE WILL pay him
appropriate interest.
CONSTRUCTION, PRODUCTION & MAINTE-
NANCE LABORERS' LOCAL 383, LABORERS'
INTERNATIONAL UNION OF NORTH AMER-
ICA, AFL-CIO
940
