Electrical Workers Local 357 (Newtron Heat Trace, Inc.)

National Labor Relations Board - Board Decisions

Dec 16, 2004

343 N.L.R.B. 1486 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
343 NLRB No. 136
1486
International Brotherhood of Electrical Workers,
Local 357, AFL–CIO (Newtron Heat Trace,
Inc.) and Michael J. Cieklinski and Richard
Brian Henderson. Cases 28–CB–5957 and 28–
CB–6013
December 16, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On June 15, 2004, Administrative Law Judge Lana H.
Parke issued the attached decision. The Respondent filed
exceptions, a supporting brief, and a reply brief. The
General Counsel filed an answering brief.
The National Labor Relations Board has delegated 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 conclusions2
and to adopt the recommended Order as modified and set
forth in full below.
The Make-Whole Provisions for Unidentified Travelers
The judge found, and we agree, that the Respondent
violated Section 8(b)(1)(A) by restraining and coercing
three travelers3 (members of sister local union, who seek
work in the Respondent’s jurisdiction) into surrendering
job referrals to the Respondent’s members. The Respon-
dent’s coercive conduct, directed at the three travelers,
included verbal harassment and threats by groups of un-
ion members occurring in the hiring hall and the hiring

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
The judge found, and we agree, that the Respondent violated Sec.
8(b)(1)(A) by refusing a hiring hall registrant’s request for a copy of the
October 3, 2003 side list. However, we note that the hiring hall regis-
trant who made the request was Brian Henderson, not Michael Ciek-
linski as the judge stated.
2 In her conclusions of law, the judge found that the Respondent vio-
lated Sec. 8(b)(1)(A) by “[m]aintaining at its hiring hall a side-list
practice and procedure whereby travelers surrendered employment
referral opportunities to permit dispatch of Local 357 members, and
applying said side-list practice to Mr. Cieklinski, Mr. Henderson, Mr.
Nairn, and other travelers.” We note that the Respondent here main-
tained its side-list practice in the context of coercive conduct enforcing
the practice. We find it unnecessary to reach the issue of whether the
Respondent’s mere maintenance of the side-list practice would have
violated Sec. 8(b)(1)(A) in the absence of coercive conduct enforcing
the practice.
3 Michael Cieklinski, Brian Henderson, and Allan Nairn.
hall parking lot. This conduct occurred on four dates
over a 6-month period starting on March 7, 2003.
In fashioning a remedy for the Respondent’s unlawful
conduct, the judge properly directed the Respondent to
make whole these three travelers whom the Respondent
coerced into surrendering dispatches. However, the
judge also directed the Respondent to make whole “other
travelers affected by Respondent’s unlawful conduct.”
The judge further directed that “[d]etermining the identi-
ties and job opportunity losses of and giving notification
to such travelers as may have been coerced is left to the
compliance stage of this matter.”
The Respondent excepts to the judge’s extension of the
make-whole remedy beyond the three identified travel-
ers. As explained below, we find merit to this exception
and we modify the judge’s recommended Order to limit
the make-whole remedy to the three identified travelers.
In fashioning its remedial order, the Board generally
requires the respondent to make whole those persons
who lose earnings as a result of an unfair labor practice.
Where affected persons remain unidentified at the con-
clusion of the unfair labor practice hearing, the Board
sometimes requires the respondent to make them whole,
deferring their identification to compliance proceedings.
However, the Board will order the respondent to make
whole such unidentified persons only where they consti-
tute a “defined and easily identified class.” Electrical
Workers Local 48 (Oregon-Columbia NECA), 342
NLRB 101, 110 (2004).4
The judge here required the Respondent to make
whole unidentified travelers and deferred identification
of these travelers to compliance proceedings. However,
the judge did so without addressing the threshold issue of
whether the unidentified travelers constituted a “defined
and easily identified class.” Further, on this record, we
find that there is no “defined and easily identified class”
sufficient to warrant a broader make-whole order.
In order to be within the defined class entitled to a
make-whole remedy for the Respondent’s coercive con-
duct, a traveler had to (1) know of the coercive conduct,
(2) decline a referral after learning of the coercive con-
duct, and (3) be motivated by the coercive conduct. Al-
though the record establishes that the named discrimina-
tees met all three of these requirements, there is no evi-
dence that any other traveler met any of them. Indeed,
with regard to whether a traveler’s decision to decline a
referral was motivated by the coercive conduct, the evi-
dence affirmatively shows that travelers regularly de-

4 Accord: Iron Workers Local 433 (Reynolds Electrical), 298 NLRB
35, 36 (1990), enfd. mem. 931 F.2d 897 (9th Cir. 1991); Laborers
Local 158 (Contractors of Pennsylvania), 280 NLRB 1100, 1101
(1986), enfd. mem. 865 F.2d 251 (3d Cir. 1988).
ELECTRICAL WORKERS LOCAL 357 (NEWTRON HEAT TRACE, INC.) 1487
clined referrals in favor of local members even in the
absence of coercive conduct. In short, there is no crisp,
clean line of demarcation separating the coerced from the
uncoerced among the travelers who declined referrals in
favor of local members. The fact that the class definition
is not a “single, readily ascertainable, and definitive trait”
or a “single objective measure” argues against providing
a make-whole remedy for the unidentified travelers.
Laborers Local 158 (Contractors of Pennsylvania), su-
pra, 280 NLRB at 1101. For these reasons, we find that
the unidentified travelers who may have lost job oppor-
tunities as a result of the Respondent’s coercive conduct
do not constitute a “defined and easily identified class.”
Electrical Workers Local 48 (Oregon-Columbia NECA),
supra (granting a make-whole remedy to unidentified
persons where they could be identified from several read-
ily identifiable classes of unlawfully preferred regis-
trants—e.g., “salts”—but not to persons who could not
be so identified). Accordingly, we will not extend the
make-whole remedy to them.
The authorities cited by our dissenting colleague, in
which the Board provided a make-whole remedy for uni-
dentified discriminatees, are distinguishable. In both
Sachs Electric Co.,5 and Electrical Workers Local 697
(UE & C Catalytic),6 the union was shown to have taken
affirmative action, including making directly coercive
statements, to impel the travelers employed by a particu-
lar employer at a specific worksite to quit their jobs in
favor of local union members. Shortly thereafter, all of
those travelers ceased working for the respective em-
ployer, some by quitting, although there was no evidence
that travelers had quit voluntarily in the past. Accord-
ingly, each traveler’s motive for quitting could reasona-
bly be inferred without relying primarily on credibility
findings. Because the unnamed travelers and their ter-
mination dates could also be easily identified from the
employer’s payroll records, the Board provided a make-
whole remedy for all those who quit, not just for those
identified by name in the initial proceeding.7 In short,
the unidentified discriminatees in Sachs and Electrical

5 248 NLRB 669 (1980), enfd. in part sub nom. NLRB v. Electrical
Workers Local 453, 668 F.2d 991 (8th Cir. 1982).
6 318 NLRB 443 (1995).
7 In Sachs Electric Co., 32 travelers worked for the employer; some
of these travelers quit as a result of the union’s coercive conduct and
the remainder were lawfully laid off by the employer. The Board pro-
vided a make-whole remedy for the travelers (including two identified
travelers) who quit, deferring to compliance the determination of which
travelers quit and which were laid off. In Electrical Workers Local 697
(UE & C Catalytic), all of the travelers who worked for the employer
were shown to have quit as a result of the union’s coercive conduct, and
the Board provided a make-whole remedy for them all.
Workers Local 697 and their make-whole entitlements
were “easily identified.”
Here, by contrast, determining the identity of the trav-
elers who declined referrals, the dates on which they did
so, and the traveler’s motive in each instance would be
significantly more difficult. While Sachs and Electrical
Workers Local 697 both involved documented work ter-
minations, this case involves virtually undocumented
choices by individuals to “go on the side list” that was
kept for travelers at the times when work referrals be-
came available. In this case, moreover, there is no evi-
dence indicating which or even how many travelers ac-
quired knowledge of the Union’s coercive conduct; nor
has the General Counsel proved that the Respondent’s
coercive conduct caused any traveler other than the
named discriminatees to decline a referral. There is, in
fact, strong evidence that travelers had previously de-
clined referrals voluntarily, i.e., for reasons unrelated to
unlawful coercion. It appears that there is no documen-
tary evidence, however, to establish in the compliance
proceeding any of the elements required for make-whole
relief here, and the only evidence would be the travelers’
own self-interested testimony.8 Determining whether or
when a traveler quit because of the Respondent’s mis-
conduct would therefore pose difficult credibility issues.9
The cases cited by our dissenting colleague in support
of his argument that the Board has granted a make-whole
remedy to additional unidentified discriminatees even
where there were potentially many such persons and
there was no simple way to identify all of them, are simi-
larly distinguishable. In both Electrical Workers Local 6
(San Francisco Electrical Contractors), 318 NLRB 109
(1995), enfd. mem. 139 F.3d 906 (9th Cir. 1998), and in
Plumbers Local 198 (Jacobs/Wiese), 268 NLRB 1312
(1984), enfd. 747 F.2d 326 (5th Cir. 1984), the wide-
spread discrimination that was established did not in-
volve the undocumented observance of a stand-aside
custom, but discriminatees’ initial eligibility for the un-
ion’s written, first-priority referral list and the union’s
deliberate failure to inform all discriminatees of the ap-

8 The dissent notes that the Respondent’s hiring hall records show
the dates that the dispatcher called a traveler’s name for referral and
whether the traveler accepted a referral. However, the evidence
strongly suggests that those records would not show why a traveler did
not accept a particular referral—e.g., the traveler might not have been
present in the hiring hall when his name was called, or he might have
been going on the customary “side list” voluntarily.
9 In Electrical Workers Local 697 (UE & C Catalytic), the judge
noted testimony that there was an “unwritten rule” or “tradition” that
travelers would quit in favor of local union members. 318 NLRB at
444. The judge also noted—and explicitly discredited—the testimony
of two travelers that they quit voluntarily. 318 NLRB at 447. How-
ever, there is no indication that any of the travelers involved in that case
had themselves previously quit a job in favor of local union members.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1488
plicable rules and other information. In both cases,
therefore, the union’s broad discrimination against uni-
dentified travelers and nonmembers was established, and
there was sufficient documentary evidence to determine
make-whole entitlements. In Teamsters Local 328
(Blount Bros.), 274 NLRB 1053, 1060 (1985), reconsid-
eration denied 283 NLRB 779 (1987), which involved
actual referrals, not only was widespread discrimination
in favor of senior members established, but it was spe-
cifically confirmed that discriminatees had applied for
work in writing and that that evidence was in the Re-
spondent’s possession. Although the determination of
entitlement to a make-whole remedy in these cases might
have been difficult in the sense of requiring an intensive
review of hiring hall records, that determination did not
depend, as it would here, primarily on determining a pu-
tative discriminatee’s state of mind by assessment of the
credibility of self-interested witnesses.
Our colleague suggests we are holding that a make-
whole remedy may properly be ordered for unnamed
discriminatees only where such individuals may be iden-
tified through documentary evidence. We are not so
holding. Although documentary evidence is certainly
preferable, we do not foreclose the possibility, in some
future case, of extending relief to unnamed persons to be
identified by testimony concerning straightforward mat-
ters of objective fact. Such testimony would at least be
capable of corroboration by other witnesses. Here, by
contrast, the testimony necessary to identify unnamed
class members would concern a wholly subjective state
of mind. We decline to find such a class “defined and
easily identified.”
ORDER
The National Labor Relations Board orders that the
Respondent, International Brotherhood of Electrical
Workers, Local 357, AFL–CIO, Las Vegas, Nevada, its
officers, agents, and representatives, shall
1. Cease and desist from
(a) Maintaining at its hiring hall a side-list practice and
procedure in a manner whereby travelers are coerced to
surrender employment referral opportunities to permit
dispatch of Local 357 members and coercively applying
said side-list practice to Michael J. Cieklinski, Richard
Brian Henderson, Allan Nairn, and other travelers.
(b) Threatening travelers with denial of membership in
Local 357 and loss of job opportunities because they
refuse to surrender job referrals to local members.
(c) Restraining and coercing travelers into surrender-
ing job referrals to members of Local 357 by participat-
ing in, acquiescing in, or failing to take any action
against members of Local 357 who threaten bodily harm
and disparage travelers who accept job referrals.
(d) Failing and refusing to provide access to and a
right to inspect and copy hiring hall books and records,
including any side lists, which are necessary to determine
the requesting individual’s position or priority of dis-
patch within the referral system and to further determine
whether the referral process is being operated properly.
(e) Requesting Newtron Heat Trace, Inc. or any other
employer to refuse to hire travelers or any other hiring
hall applicant in violation of Section 8(a)(3) of the Act.
(f) Causing or attempting to cause Newtron Heat
Trace, Inc. or any other employer to refuse to hire or to
lay off or otherwise terminate travelers or any other hir-
ing hall applicant in violation of Section 8(a)(3) of the
Act.
(g) In any like or related manner restraining or coerc-
ing employees in the exercise of rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Maintain and enforce its established hiring hall
practices and procedures in a manner that does not coerce
travelers to surrender employment referral opportunities
to permit dispatch of Local 357 members.
(b) Make Michael J. Cieklinski, Richard Brian Hen-
derson, and Allan Nairn whole, plus interest, for any loss
of earnings and other benefits suffered by them as a re-
sult of the Respondent’s unlawful conduct, in the manner
set forth in the remedy section of the judge’s decision.
(c) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all records in the pos-
session of the Respondent including an electronic copy
of such records if stored in electronic form, necessary to
analyze the amount of backpay due under the terms of
this Order.
(d) Within 14 days after service by the Region, post at
its hiring hall in Las Vegas, Nevada, copies of the at-
tached notice marked “Appendix.”10 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 28, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to members are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.

10 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ELECTRICAL WORKERS LOCAL 357 (NEWTRON HEAT TRACE, INC.) 1489
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
CHAIRMAN BATTISTA, dissenting in part.
For the reasons set forth below, I disagree with my col-
leagues’ conclusion that the unidentified travelers who
lost job opportunities as a result of the Respondent’s co-
ercive conduct are not a “defined and easily identifiable
class,” entitled to remedial relief. In a long line of cases,
the Board has provided broad make-whole remedies to
remedy myriad violations against travelers.1 This case is
yet another example of unlawful discrimination against
this class of employees. And this class is readily “de-
fined and easily identifiable”: travelers who declined
referrals because of the Respondent’s unlawful coercion
of travelers who were attempting to secure jobs through
its referral system. Given the importance that the Board
places on removing the effects of an adjudged unfair
labor practice, the Board provides a make-whole remedy
for unidentified persons adversely affected by this con-
duct, rather than allowing wrongdoers to avoid the con-
sequences of their actions.
My colleagues have themselves set forth the well-
defined category of employees who would fall within the
ambit of a remedy. The General Counsel, who would
bear the burden of proof, can easily identify those em-
ployees in a compliance proceeding. That is, the General
Counsel would call witnesses who would testify that: (1)
they knew of the Union’s conduct; (2) they declined re-
ferrals after learning of such conduct; and (3) they de-
clined because of that conduct.
These matters are straightforward. As to the first, the
employees would testify, on direct and cross-
examination, as to when, where, and from whom such
knowledge was acquired. As to the second, the employ-
ees would testify as to the declination. The Respondent
could challenge that testimony with contrary evidence,
including testimony by the Respondent officials who
operated the hiring hall as well as hiring hall records
showing the dates that the dispatcher called a traveler’s

1 Interestingly, the cases involve sister locals of the Respondent.
See, e.g., Electrical Workers Local 697 (UE & C Catalytic), 318 NLRB
443 (1995); Electrical Workers Local 6 (San Francisco Electrical
Contractors), 318 NLRB 109 (1995), enfd. mem. 139 F.3d 906 (9th
Cir. 1998); Fischbach/Lord Electric Co., 270 NLRB 856 (1984), enfd.
in part sub nom. NLRB v. Electrical Workers Local 112, 827 F.2d 530
(9th Cir. 1987); Electrical Workers Local 175 (Duncan Electric), 269
NLRB 691 (1984), enfd. 760 F.2d 714 (6th Cir. 1985); Electrical
Workers Local 441 (Bear State Electric), 269 NLRB 664 (1984); Sachs
Electric Co., 248 NLRB 669 (1980), enfd. in part sub nom. NLRB v.
Electrical Workers Local 453, 668 F.2d 991 (8th Cir. 1982).
name for referral and whether the traveler accepted a
referral.
My colleagues say that the Respondent’s hiring hall
records may not contain sufficient information to ascer-
tain whether the traveler was present in the hall when his
name was called. Assuming arguendo that the hiring hall
records do not in fact resolve this issue, other evidence
(e.g., testimony) can do so. In short, the problem is not
an insuperable one.
My colleagues complain that there is no evidence that
other employees declined referrals because of the Re-
spondent Union’s coercive conduct. The difference be-
tween my colleagues and myself is that I would hear
such evidence, and my colleagues would foreclose it.
My colleagues also suggest that the proof can only be
documentary. That is, mere testimony would involve
credibility resolutions and will not suffice. Again, there
is no case precedent cited for such a rule, and I believe
there is none. Administrative law judges make credibil-
ity determinations all the time. There is no reason why
that cannot be done here.2
Concededly, the third matter involves the employee’s
motive for declining. However, the Board’s judges fre-
quently make “motive” findings concerning actions.
Indeed, those findings are rarely reversed.
My position is consistent with Board precedent. In
Sachs Electric Co.,3 and in Electrical Workers Local 697
(UE & C Catalytic),4 a union committed unfair labor
practices that were analogous to the Respondent’s unlaw-
ful conduct here and the Board provided a make-whole
remedy for all the adversely-affected travelers, not
merely those who were identified in the original proceed-
ing. In these cases, travelers were working while local
union members were unemployed. The union made
unlawful coercive statements to travelers that caused the
travelers to quit their jobs in favor of local union mem-
bers. The Board provided a make-whole remedy for all
the travelers who quit their jobs in favor of local union
members, not for just the travelers who were identified in
the original proceeding.
In light of that precedent, the Board here should pro-
vide a make-whole remedy for travelers who declined
referrals because of the Respondent’s coercive conduct.
The remedy should not be limited to the three travelers

2 My colleagues say that, “in a future case,” testimony might be
permitted. There is no reason why that would not be true here. And,
testimony concerning motive is not “wholly subjective.” As in any
other case involving motive (e.g., 8(a)(3) cases), testimony concerning
motive is usually accompanied by objective facts.
3 248 NLRB, supra at 670–671.
4 318 NLRB, supra at 447.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1490
who were identified in the original proceeding as the
immediate focus of the coercive conduct.
Furthermore, the Board has provided a make-whole
remedy for unidentified adversely affected persons in
cases even where there were potentially many such per-
sons. See Electrical Workers Local 6 (San Francisco
Electrical Contractors), supra at 142–143 (union unlaw-
fully denied travelers book I eligibility by enforcing dis-
criminatory rules and by failing to notify travelers of
hiring hall rules over multiyear period); Teamsters Local
328 (Blount Bros.), 274 NLRB 1053, 1060 (1985), re-
consideration denied 283 NLRB 779 (1987) (union, in
selecting from among over 100 hiring hall registrants to
fill 25 jobs, failed to follow objective referral criteria
resulting in unlawful referral preferences for senior mem-
bers personally known to union officials); Plumbers Lo-
cal 198 (Jacobs/Wiese), 268 NLRB 1312 (1984), enfd.
747 F.2d 326 (5th Cir. 1984) (union used separate out-of-
work registers and more onerous sign-in requirements to
unlawfully discriminate against 100 travelers in refer-
rals).
Accordingly, I would affirm the judge’s recommended
Order providing a make-whole remedy for all travelers
who lost job opportunities as a result of the Respondent’s
coercive conduct and deferring to compliance proceed-
ings issues related to which, if any, travelers are entitled
to be made whole.
APPENDIX
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 Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW PROVIDES
Any labor organization that operates a hiring hall or re-
ferral process that is an exclusive source of employ-
ment referrals to employers must fairly and consistently
follow the hiring hall’s rules and regulations regarding
hiring hall dispatches and must represent all individuals
seeking to utilize that hall in a fair and impartial man-
ner.
WE WILL NOT maintain at our hiring hall a side-list
practice and procedure in a manner whereby individuals
who are not members of Local 357 (travelers) are co-
erced to surrender employment referral opportunities to
permit dispatch of Local 357 members.
WE WILL NOT threaten travelers with denial of member-
ship in Local 357 and loss of job opportunities because
they refuse to surrender job referrals to Local 357 mem-
bers.
WE WILL NOT restrain and coerce travelers into giving
up job referrals to members of Local 357 by participating
in, acquiescing in, or failing to take any action against
members of Local 357 and others who threaten and har-
ass travelers who accept job referrals.
WE WILL NOT upon request of a represented employee
or job applicant, fail and refuse to provide access to and a
right to inspect our books and records, including any side
lists, which are necessary to determine the requesting
individual’s position or priority of dispatch within the
referral system and to further determine whether the re-
ferral process is being operated properly.
WE WILL NOT request any employer to refuse to hire
travelers or any other job applicant in violation of Sec-
tion 8(a)(3) of the Act.
WE WILL NOT cause or attempt to cause any employer
to refuse to hire or to layoff or otherwise terminate trav-
elers or any other job applicant in violation of Section
8(a)(3) of the Act.
WE WILL NOT in any like or related manner restrain or
coerce employees in the exercise of rights guaranteed
them by Section 7 of the National Labor Relations Act.
WE WILL maintain and enforce our hiring hall practices
and procedures in a manner that does not coerce travelers
or other job applicants to give up employment referral
opportunities to permit dispatch of Local 357 members.
WE WILL make Michael J. Cieklinski, Richard Brian
Henderson, and Allan Nairn whole, plus interest, for any
loss of earnings and other benefits suffered by them as a
result of our unlawful actions.
INTERNATIONAL BROTHERHOOD OF ELECTRI-
CAL WORKERS, LOCAL 357, AFL–CIO
Joel C. Schochet, Atty., for the General Counsel.
Dennis A. Kist, Atty. (Dennis A. Kist & Associates), for the
Respondent.
DECISION
I. STATEMENT OF THE CASE
LANA H. PARKE, Administrative Law Judge. This matter was
tried in Las Vegas, Nevada, on March 9 and 10, 2004, upon an
order further consolidating cases, second consolidated com-
plaint and notice of hearing (the complaint) issued November
26, 20031 by the Regional Director of Region 28 of the National
Labor Relations Board (the Board) based upon charges filed
respectively by Michael J. Cieklinski and Richard Brian Hen-
derson (Cieklinski and Henderson), individuals. The complaint

1 All dates herein are 2003 unless otherwise specified.
ELECTRICAL WORKERS LOCAL 357 (NEWTRON HEAT TRACE, INC.) 1491
originally named Newtron Heat Trace, Inc. (Newtron) as a
Respondent. At the hearing, counsel for the General Counsel
represented that Newtron had entered into a settlement agree-
ment resolving the charges against it. I granted counsel for the
General Counsel’s motion to sever Newtron from the com-
plaint. The complaint, as amended at the hearing, alleges Inter-
national Brotherhood of Electrical Workers, Local 357, AFL–
CIO (Respondent or Local 357) violated Section 8(b)(1)(A) and
(2) of the National Labor Relations Act (the Act). Respondent
essentially denied all allegations of unlawful conduct.
II. ISSUES
1. Did Respondent maintain a practice and procedure
whereby hiring hall applicants who were members of other
local unions of the International Brotherhood of Electrical
Workers, AFL–CIO (travelers), surrendered dispatch referrals
to Local 357 members and obtained dispatch only after all Lo-
cal 357 members had been afforded an opportunity for dispatch
to work?
2. During relevant times, did Respondent apply the above
practice to Charging Parties Michael J. Cieklinski and Richard
Brian Henderson, and to other travelers, including Al Nairn and
others similarly situated?
3. Did Respondent restrain and coerce travelers into surren-
dering dispatch referrals to Respondent’s members by partici-
pating in, acquiescing in, or failing to take any action against,
members of Respondent who threatened bodily harm and dis-
paraged travelers who were being issued dispatch referrals?
4. Did Respondent threaten travelers with denial of local
membership and resulting loss of job opportunities because
they refused to surrender dispatch referrals to local members?
5. Did Respondent fail and refuse to provide copies of an al-
ternate job referral list (side list) to a traveler who requested
them?
6. Did Respondent cause or attempt to cause Newtron to re-
fuse to hire and/or to discharge Henderson for reasons other
than his failure to tender uniformly required fees and periodic
dues?
7. Did Respondent cause or attempt to cause Newtron to re-
fuse to hire Cieklinski for reasons other than his failure to ten-
der uniformly required fees and periodic dues?
III. JURISDICTION
Newtron, a Louisiana corporation, with a place of business
located at Primm, Nevada, has been engaged as a heat trace
contractor in the construction industry doing commercial and
industrial construction. During a 12-month period ending Oc-
tober 31, Newtron, in conducting its business operations de-
scribed above, annually purchased and received at its place of
business in Primm, Nevada, goods and services valued in ex-
cess of $50,000 directly from points outside the State of Ne-
vada. In its answer to the complaint, Newtron admitted, and I
find, it has at all relevant times been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act, and the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.2
IV. THE FACTS
At all times relevant hereto, Respondent has been signatory
to collective-bargaining agreements with Newtron and other
contractors performing construction industry work in and
around Clark County, Nevada, which provide, inter alia, for the
recognition of Respondent as the exclusive collective-
bargaining representative of the employees of Respondent in
the classifications of general foreman, journeyman wireman,
journeyman technician and journeyman cable splicer, among
other classifications, with respect to rates of pay, wages, hours
of employment, processing of grievances, and other terms and
conditions of employment. Respondent has maintained with
Newtron and other area contractors agreements requiring that
Respondent be the exclusive source of referrals of employees
for employment with Newtron and other area contractors en-
gaged in the construction industry. To that end, Respondent
maintains a construction dispatch/referral system from its hiring
hall and office facility located in Las Vegas. During 2003,
pursuant to its contractual dispatch/referral system, Respondent
has dispatched electrical construction workers to Newtron at its
Big Horn construction jobsite located in Primm, Nevada.
Simply described, Respondent’s dispatch/referral system op-
erates as follows: The inside construction agreement (inside
agreement) provides that out-of-work International Brother-
hood of Electrical Workers Union (IBEW) members desiring
employment may sign up in one of four “books,”3 depending on
their meeting applicable criteria. Those who sign in book one
are the first to be offered dispatch to available jobs. The eligi-
bility criteria for book one is as follows:
All applicants for employment who have four (4) or more
years’ experience in the trade, are residents4 of the geographi-
cal area, constituting the normal construction labor market,5
have passed a journeyman’s examination given by a duly
constituted Inside Construction Local Union of the IBEW or
have been certified as a journeyman wireman by any Inside
Joint Apprenticeship and Training Committee and who have
been employed in the trade for a period of at least one (1) year
in the last four (4) years in the geographical area covered by
the collective bargaining agreement.

2 Where not otherwise noted, the findings herein are based on the
pleadings, the stipulations of counsel, and/or unchallenged credible
evidence.
3 The inside agreement in which the criteria for book eligibility is set
out, identifies the eligibility gradations as group I, II, III, and IV. As
the witnesses referred to the eligibility categories as “books,” I have
used that term herein.
4 The definition of resident is set out in sec. 3.09 of the inside
agreement: a person who has maintained his permanent home in the
above-defined geographical area for a period of not less than 1 year or
who, having had a permanent home in this area, has temporarily left
with the intention of returning to this area as his permanent home.
5 The geographic area is specified in sec. 3.08 of the inside agree-
ment: Clark and Lincoln Counties and that portion of Nye County south
of the Mt. Diablo Base Line, State of Nevada.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1492
When signatory construction companies need employees in
classifications encompassed by the agreement, they notify the
hiring hall, which in turn announces or offers the available jobs
to those signed in on book one in order of position on the out-
of-work list. Membership in Respondent is not required; mem-
bers of other IBEW locals throughout the United States who are
not members of Respondent, i.e., travelers, may, upon proof of
good standing, sign up for job referral in the book for which
they are eligible, including book one.6 When a worker’s name
is called from the book one out-of-work list, the worker may
choose from among the jobs still available for dispatch.
For many years, it has been the custom at Respondent’s hir-
ing hall for travelers with book one eligibility to ask that their
names be put on an informal “side list” for deferred dispatch
after Respondent has afforded dispatch opportunity to all Local
357 book one signers (the side-list practice). According to
Union Agents Jeff Westover and Terry Large, this was an ac-
cepted “courtesy” to Local 357 members, knowledge of which
was disseminated by word of mouth. Compliance with the
custom entailed no particular hardship to travelers when ample
work existed.
By stipulation of the parties, the following possessed the des-
ignated titles and acted as agents of Respondent within the
meaning of the Act during periods relevant to this case:
David R. Jones (Jones) Business Manager
Jeff Westover (Westover) Assistant Business Manager
Terry Large (Large) Dispatcher
Lonnie Bennington Dispatcher
(Bennington)
Bill Poma (Poma) Agent
Respondent denied the agency status of Brian Egge (Egge),
steward, and Edward Gering (Gering), a Local 357 member,
sometime organizer, and chairman of the Union’s executive
committee. During the relevant period, Egge served as Re-
spondent’s steward for Newtron’s IBEW employees at the Big
Horn jobsite. While in that position, Egge discussed employee
complaints, safety issues, and pay issues with the jobsite super-
visor, had authority to write grievances and to resolve them,
and served as liaison between Respondent and the jobsite.
Egge checked dues receipts of workers reporting to the jobsite
to see if they were current and if not, told them to pay. Gering
held the position of union organizer with Respondent from
August 2001 until July 28, 2003, resuming the position in Feb-
ruary 2004. During 2003, Gering was the chairperson of Re-
spondent’s unit one (inside journeyman wiring) executive
committee, which met monthly to, inter alia, review local union
membership applications and report to the executive board if
applicants met the criteria. At all relevant times, Charging
Party Henderson, was a member of IBEW Local 342 in
Winston Salem, North Carolina (Henderson’s home local). He
was not a member of Respondent. In recent years, Henderson
has been a resident of Las Vegas and has received dispatches

6 At the time of the hearing travelers made up approximately 18 per-
cent of book one signers.
from Local 357 as a traveler.7 At all relevant times, Charging
Party Cieklinski, was a member of IBEW Local 1426 in Grand
Forks, North Dakota (Cieklinski’s home local). Although not a
member of Respondent, since 1982 Cieklinski has been a resi-
dent of Las Vegas and has received dispatches from Local 357
as a traveler.
Prior to 2003, Henderson and Cieklinski had complied with
Local 357’s custom regarding travelers declining dispatches
from book one when local members had not yet been dis-
patched, by going to the dispatch window when their names
were called and asking to be put “on the side.” The dispatcher
then listed their names on a piece of scratch paper to the side of
book one, which list the dispatcher referred from when all eli-
gible local members who wanted jobs had accepted dispatch.
Beginning in January, Cieklinski noticed a larger number
than before of Local 357 members signing book one, which he
attributed to successful union organization drives swelling Re-
spondent’s membership numbers. With increased numbers of
local membership on book one, Cieklinski regularly had to turn
down dispatches in order to comply with the local’s side-list
custom.
On March 7, Cieklinski telephoned IBEW Ninth District
Representative Dave Tilmont (Tilmont) about the side-list
situation at Local 357. Tilmont suggested he write to Michael
S. Mowrey (Mowrey), vice president of IBEW District 9. Prior
to dispatch on that same day, Cieklinski spoke to Westover
about the problem, telling him he would have to take a job that
day without going on the side list in order to feed his family.
Westover told him he was entitled to the call if he so chose, but
there were ramifications. Westover warned, “Those members
that don’t choose to step aside as a courtesy usually won’t get
membership [in Local 357].” He wished Cieklinski luck. Later
that day, when Dispatcher Large called his name, Cieklinski
accepted a job with Bechtel Construction Company. Large
asked, “Are you sure you want to do this?”8
Cieklinski said he did, and Westover told Large to give him
the call. Large asked again if Cieklinski were sure he wanted to
accept the call, saying, “You’re only going to work 41 hours.”9
Mr. Cieklinski had just moved one to two steps beyond the
dispatch window when a man identifying himself as a Local
357 member whose name was below his on the out-of-work list
accosted him, called him a f__ tramp, and said, “You are taking
my job.” Cieklinski told him he had a right to take the call.
Other persons in the room yelled to him, “Do you want to get

7 Henderson unsuccessfully sought membership in Local 357; there
is no allegation related to denial of membership.
8 Large denied asking Cieklinski if he were sure he wanted to take
the call. He admitted Cieklinski’s acceptance of the call was a “highly”
unusual circumstance. I did not find Large to be a reliable witness, and
I do not credit his testimony where it conflicts with that of Cieklinski
and Henderson.
9 An individual may maintain his/her position on the out-of-work list
if the job lasts less than 40 hours. If more than 40 hours are worked,
the individual’s name goes to the bottom of the list. Cieklinski did not
know how Large knew the Bechtel job would last only 41 hours as it
had not been announced as a short-call job (a job lasting less than 40
hours.) Cieklinski believed Large was threatening he would make sure
the job lasted only 41 hours.
ELECTRICAL WORKERS LOCAL 357 (NEWTRON HEAT TRACE, INC.) 1493
your ass kicked?” “Turn the call back in,” and “Do the right
thing.” Cieklinski returned to the window and gave the job call
back to Large and Westover. Neither commented on his
change of heart.
Following the events of March 7, Cieklinski by letter dated
March 10, complained to Mowrey about Local 357’s “book
one-on the side practice,” which severely limited job opportuni-
ties for travelers. He related the occurrences of March 7, point-
ing out that he had already told Tilmont about the situation and
that he had been unemployed since January 8 because of the
practice. He asked for intervention:
All I am asking is that Local # 357 uphold the integrity
of the union and stop condoning the practice of men hav-
ing to go “on the side.” Back in the old days job calls
were distributed fairly and everyone had the same oppor-
tunity for job call offers. Book one was book one. Mr.
Mowrey, I am asking that you please look into this prob-
lem at your earliest convenience.
By letter dated March 17, Mowrey responded that the refer-
ral procedure was created by the agreement between the Local
Union and the Employer:
It is important to note . . . that it is the Local Union and not the
International that serves as your exclusive bargaining repre-
sentative. . . . For these reasons there is no formal procedure
under which I can entertain your complaint against the Local
Union. Nevertheless, in order to attempt to assist you in an
informal way, I am assigning International Representative
Tilmont to inquire further about the matters you have raised in
your letter. In the meantime, I would suggest that you pursue
whatever additional steps may be available to you, possibly a
request to be heard by the “Referral Appeals Committee.”
In response to Mowrey’s assignment, Tilmont apparently
made some effort to resolve the situation, although he could not
recall “anything specific.” According to Cieklinski, he reported
to Cieklinski that he had tried to set up a meeting between
Jones, Respondent’s business manager, and Cieklinski, but
Jones refused. Although Tilmont denied Jones had refused to
meet, he admitted talking to Jones about Cieklinski’s com-
plaint.10
By letter dated March 25, Cieklinski asked for a hearing by
the appeals committee regarding the integrity of the referral
procedure. By letter of March 31, Mickey Miles (Miles), Re-
spondent’s president, informed Cieklinski he had to submit a
formal complaint and proposed remedy to the committee. By
letter dated April 8, Cieklinski did so, outlining all that had
occurred on March 7 when he accepted a dispatch, including
threats and intimidation directed toward him by Local 357
members. Miles set an appeals committee hearing for April 28.
On April 28, Cieklinski attended the scheduled hearing of
the appeals committee. Henderson and Nairn were also pre-
sent. Miles, a contractor’s associate, and the head of the joint

10 I credit Cieklinski’s account of what Tilmont told him. I found
Cieklinski to be a believable witness. I found Tilmont to be less open
and even somewhat constrained in giving testimony.
apprentice-training center formed the hearing committee.11 The
committee told Cieklinski, Henderson, and Nairn that when
their names were called in the hiring hall, they should just take
the call. At some point following the hearing, the appeals
committee issued an undated decision, which stated the com-
mittee found no violation of the inside agreement. During this
period, rumors circulated in the hiring hall that travelers were
accepting jobs without going on the side, and Local 357 mem-
bers raised the issue in union meetings “all the time,” according
to Gering. Local 357 members contacted Gering because they
knew he had held a position with Respondent and talked to him
about travelers taking dispatches.
During the relevant period herein, Ken Allen and Kevin Bel-
lard (Allen and Bellard) supervisor and general foreman, re-
spectively, of Newtron were responsible for hiring and firing
employees at Newtron’s Big Horn Powerhouse jobsite (Big
Horn job). In mid-May, Newtron placed a request with Re-
spondent’s hiring hall for one electrical worker. The dispatch
for that job was to be made on May 16.
Having been out of work for about 8 months, in mid-May
Henderson decided to accept a dispatch even though it meant
“jumping the book.” (A book jumper is a nonmember of Local
357 who, having legitimately attained eligibility for and signed
up in book one, accepts a job referral while Local 357 signers
farther down on the list remain undispatched.) Henderson was,
at that time, at the top of the book one out-of-work list. Having
learned by calling the job line that a dispatch to Newtron, a
desirable job, would be offered in the hiring hall on May 16,
Henderson reported to the hiring hall on that date. When the
dispatcher, Large, called his name, Henderson went to the win-
dow and said he wanted to go to Newtron. Large asked if that
was what he wanted, and Henderson said yes. As he waited for
his referral paperwork, Henderson audiotaped conversations
between him and Local 357 members. Counsel for the General
Counsel caused a transcript of the tapes to be prepared for
which Henderson later identified speakers. While the tapes
were played in court, the parties compared the audio to the
transcript. Although some of the interaction on the tapes is not
audible because of loud background and covering noise, much
of it, particularly those conversations herein referenced, occurs
in relative quiet.12 The taped conversations, in pertinent part,
are set forth below:
Date and Place of Conversations
Dispatch Room of the Hiring Hall

11 Cieklinski did not recount what he said in the hearing. Miles was
vague about what Cieklinski said, testifying that although Cieklinski
referred to a March 7 incident, he “didn’t get the feeling” that Ciek-
linski had said he felt threatened by a Local 357 member. It is inher-
ently incongruous that Cieklinski would not have repeated at least the
information he provided in his appeals request of April 8. Moreover,
the committee must have read his appeal and must have known what
Cieklinski asserted he had experienced. I find Miles testimony equivo-
cal at best, and I do not rely on it.
12 Although objecting at the hearing to introduction of the tapes, Re-
spondent states in its posthearing brief, “In that Henderson produced a
tape recording of comments made to him on May 16, 2003 after taking
the dispatch, what was said to him cannot be credibly debated.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1494
May 16
Speakers
Mr. Henderson
Vick Snow (Mr. Snow), Local 357 member
Richard Avena (Mr. Avena), Local 357 member
Allan Nairn (Mr. Nairn), Traveler
Ms. Bennington, dispatcher
Numerous unidentified voices
Conversations
Mr. Snow: Are you on the side?
Mr. Henderson: Yeah
Mr. Snow: Well, you just stepped up there . . . on all
your brothers and took a job?
Mr. Henderson: Yeah.
Mr. Snow: That’s f___ up . . . How would you feel if I
went to your local and did the same thing? . . . Now the
proper thing to do is to step back to the window and give
that call back to a brother that needs a job . . . You’re f___
up . . . Where you out of?
Mr. Henderson: 342.
. . . .
Mr. Henderson: What page you on?
Mr. Snow: I just signed the books today.
Mr. Henderson: So? I been on the books for eight
months. I been in there since ‘96.
Mr. Snow: You’re on the side.
Mr. Henderson: I been in this town since ‘96.
. . . .
Mr. Snow: It’s f___ up when you jump in front the
brothers and take another f___ call . . . And I’ll make sure
that every man in that hall knows—knows that you did it
too. The proper thing to do is go back to the window and
say, “Here, I’m not taking this call.”
[Pause of approximately 4 minutes with noise/voices]
Unidentified male: Dude, you screwed me out of a
call.
. . . .
Unidentified male: He took a call.
Unidentified male: You’re sh___ me.
Mr. Snow: Like I said, brother, proper thing to do is
go get your ticket back and give back the call to somebody
else . . . You won’t lose your place on the books or any-
thing else. That’s the proper thing to do . . . You don’t
like [the way] this local works, then you go back home.
[Other unidentified persons loudly questioned and
jibed at Henderson for accepting a dispatch. Snow contin-
ued to urge Henderson to give up his dispatch as Hender-
son inquired at the window when his referral would be
out.]
Mr. Snow: You want to save face? You know, if your
name gets out on the street for doing that sh__, it’s going
to hurt you. If you walk up there right now, everything
will be forgiven . . . I mean if you want to continue to
work here, you know.
[Voices talking at the same time.]
Unidentified male: Hey, you got a home here and eve-
rything, man. If you want to live here, you got to do the
right thing.
. . . .
Mr. Snow: I asked him to step outside. He wanted—
he wanted to open it up right here in the middle of the
floor, so I did.
Unidentified male: Yeah, I want to set him on fire,
you know.
Mr. Snow: I told him we’d do it in private, but, no, he
wanted everybody to hear, so now everybody’s gonna
know.
[Mr. Henderson inquires again about his referral.]
Mr. Henderson: They aren’t gonna give me my refer-
ral or what? . . . Won’t give me my referral. That’s—I
took the first—I took the first job.
Mr. Nairn: Everybody else has got their referrals al-
ready.
. . . .
Ms. Bennington: You can always go to dispatch. I
don’t have yours right now.
[As Henderson moved between the dispatch and the
referral window, an unidentified man blocked his way.]
Mr. Henderson: . . . that was cute.
Unidentified male: No, that was cute, that stunt you
pulled right then and . . . this thing you jumping the books,
that was cute.
. . . .
Mr. Henderson: I been on the books for eight months
. . . the constitution says I got as much right to work as
you.
Unidentified male: Does your ticket say 357?
Unidentified male: That must be the way they do it in
his own home local. Is that the way they do it in your lo-
cal?
[Mr. Henderson leaned against the wall next to the re-
ferral window where Bennington stood looking at him.]
Unidentified male: My constitution says soon as you
get out that door I could whip your ass.
. . . .
Unidentified male: Well, my constitution says, as
soon as you get out there, whuppin’ your ass. That’s what
the constitution says.
Mr. Avera: That’s f__ up. Don’t know how it works.
Don’t care how it works. That’s the way it works in his
local . . . When you don’t work in your own home local,
then you got to go somewhere else, that’s all. You don’t
go into somebody else’s local, start jumping the books.
Mr. Snow: 500 brothers out of work . . . I’m glad I
met you, Brian . . . I’ll remember that name.
Mr. Avera: Everybody will remember that name.
Unidentified male: Yeah, don’t speak to No. 41.
You’re gonna catch hell.
ELECTRICAL WORKERS LOCAL 357 (NEWTRON HEAT TRACE, INC.) 1495
. . . .
Unidentified voice: Gonna give you a hard time.
. . . .
Unidentified male: . . . you’re gonna get a lot of head-
aches out of it.
Unidentified male: He’ll get paid—he’ll get paid now
but—get paid later.
Large noticed a “commotion was going on” concerning
Henderson, but he said he had a job to do, which he would not
interrupt. Large testified it was common for people to get into
arguments about various subjects in the hiring hall but gave no
details of any arguments. Juanita Kerrick, a traveler working
out of Local 357’s hiring hall since 1995, who was called as a
witness by Respondent, testified she could not recall ever see-
ing an argument among workers awaiting calls in the hiring
hall. Her testimony does not contradict that of Cieklinski or
Henderson, as there is no evidence she was present at the hiring
hall on March 7, May 16 and 23, or September 15. Her testi-
mony does, however, provide evidence that arguments or
“commotions” at the hiring hall were unusual, which contra-
dicts Large’s assertion that arguments were routine. I do not,
therefore, accept his testimony in this regard.
Shortly thereafter, Egge told Bellard that a “book jumper”
would be reporting to the jobsite. Egge asked Bellard if he
could “spin” the book jumper (deny the referred worker em-
ployment when the worker reported to the jobsite). Bellard said
he would have to speak to Newtron’s general manager. Egge
said if the company did not do it, there could be problems at the
jobsite. When Bellard asked what he meant, Egge said, “Well,
you know, wires being cut or people not showing up for work,
or concrete being poured down pipes. It might not be from us;
there’s other union contractors out here on this job, you know.
I’m not saying it’s going to be us.” Bellard said he would
speak to his boss.13
Bellard reported his conversation with Egge to Lee Byrd
(Byrd), Newtron’s general manager. Byrd told Bellard to con-
tact the hiring hall and get their input; he wanted to know
whether Respondent would back up Newtron if they spun the
worker, or would Respondent later file a grievance for him.
Bellard telephoned Westover, told him Egge had said a book
jumper was being dispatched to the job, and asked Westover
what he wanted to do about it.
Mr. Westover said the company should do the right thing,
that he wasn’t happy with book jumpers. Westover told Bellard
if he did the right thing, “there could be a ticket down the road
for you.” Bellard understood this reference to a ticket to mean
that he might be permitted to switch his union membership
from his home local in Louisiana to Local 357, which Westover
knew he wanted to do.14

13 Egge denied having any such conversation with Bellard. I credit
the testimony of Bellard, whom I found to be forthright and sincere.
Egge admitted the Local 357 workers on the Big Horn job did not like
Henderson’s accepting the job.
14 While Bellard was unclear about when the conversations occurred,
he remembered it was about a week prior to the day Henderson re-
ported to the jobsite in response to the dispatch request. As Henderson
Bellard asked if Respondent would represent workers the
company spun. Westover said he could not guarantee Respon-
dent would not give them representation. Bellard said, “If you
can’t guarantee that, then I can’t guarantee that I can go along
with what you want me to do.”15
When, pursuant to Newtron’s requested dispatch Henderson
reported to the Big Horn jobsite, Bellard hired him. Within the
first week of his hire, Egge asked to speak with Bellard. He
said he did not like having Henderson on the job, that nobody
else liked having a book jumper on the payroll. Later, Bellard
complained to Egge that the work was slowing down and asked
him what the problem was. Egge told Bellard that if Newtron
got rid of the “traveler,” more work would get done faster.16
On another occasion, Bellard sought to assign overtime work
on the jobsite. Egge refused to work overtime and told Bellard
he would discourage other Local 357 members on the jobsite
from working overtime if Newtron let Henderson do any over-
time. Out of concern that it would impede work on the jobsite,
Bellard never assigned overtime work to Henderson.
Shortly before May 23, Newtron placed another request for
an electrical worker with Respondent. Cieklinski went to the
hiring hall on May 23, intending to accept dispatch to New-
tron.17 Henderson and Nairn also returned to the hiring hall to
witness Cieklinski accept the dispatch. When his name was
called for dispatch on May 23, Cieklinski did not ask to go on
the side, but asked to be dispatched to Newtron. He was di-
rected to report to the jobsite on May 27.
When Cieklinski stepped away from the dispatch window
toward the main reception office to get his referral, four or five
persons in the room yelled and screamed at him. As he contin-
ued walking toward the referral area in main reception office,
other persons verbally attacked Henderson and Nairn. Large
and another dispatcher watched from the dispatch window.
The persons followed Cieklinski into the referral area where
Poma and Bennington stood watching.
After witnessing Cieklinski accept a dispatch that morning,
while standing about 6 to 10 feet from the dispatch window,
Henderson taped interchanges between him and Local 357
members under the same circumstances described earlier.
While members and/or other persons directed loud and con-
frontational comments to Henderson, Large, and Westover
intermittently looked at Henderson from the dispatch window
as they walked back and forth in the dispatch office. The ex-
changes, in pertinent part, are set forth below:
Date and Place of Conversations
Dispatch Room of the Hiring Hall

was hired on May 18, the conversations must have occurred in mid-
May.
15 Westover denied having any such conversation with Bellard. I
specifically discredit Westover’s denial and accept Bellard’s account.
16 Bellard testified that several conversations occurred between him
and Egge on this subject. He was not clear in assigning specific com-
ments to specific conversations, and I do not find it necessary to do so
in order to find the testimony reliable.
17 Cieklinski was willing to accept a call to construction companies
Newtron, Bechtal, or Fisk because he believed those companies would
not bow to Respondent pressure and spin him.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1496
May 23
Speakers
Mr. Henderson
Ben Grant (Mr. Grant), Local 357 member
Jennifer Zambrano (Ms. Zambrano), Local 357 member
Richard Avena (Mr. Avena), Local 357 member
Ron Kimble (Mr. Kimble, Local 357 member
“First Stop,” Local 357 member
“Bear,” Local 357 member
Numerous unidentified voices
Conversations
Mr. Grant (to Mr. Henderson): You’re a piece of sh__.
. . . .
Bear: That goes for me too, okay? . . . You’re a big
pile of sh__, that’s what you are.
. . . .
Ms. Zambrano: So it doesn’t matter, you just screw
your brothers and sisters out of jobs? . . . You want to see
my kids over here? Ask them how long I’ve been out of
work. Hey, guys, come here. Kids. Come on, look at my
kids . . . They’re here with me because I’m unemployed.
And ask them how long I’ve been out of work.
Mr. Henderson: How long you been out of work?
Ms. Zambrano: Ask them. Look at them. Look at
these guys. These are the guys I try to feed each and every
week.
. . . .
Mr. Henderson: . . . I live here. I got an out-of-state
ticket . . . I got a house here. I live here.
Bear: . . . Do you have a ticket that says 357 on it?
Mr. Henderson: No, it didn’t say 357.
. . . .
[Henderson returned to the referral window. Barring-
ton was there, Poma was moving about in the referral of-
fice.]
First Stop: Boy, if you want to play the game out here,
you better start getting used to doing it right. Now, g__
d__it, that’s b__ sh__.
. . . .
First Stop: You can go back to your home local and
work.
Mr. Henderson: I live here, dude.
. . . .
First Stop: Well, good for you. I been here since ‘95,
and I got in the local because I knew that’s what you’re
supposed to do . . . the way you’ve done it, you’re f___.
. . . .
First Stop: Well, why in the hell did you come here in
‘96? You wasn’t invited, was you? Well then, why don’t
you go home on your own?
Mr. Henderson: Because this is my home.
First Stop: No, it ain’t. We don’t want you here.
There’s going to be a day that you wish to hell you was lo-
cal. Might think about putting that house up for sale while
you can sell it.
Mr. Henderson: Why is that?
First Stop: Well, this economy might just fall and
you’ll be sitting on your ass with a house. Then you can
go home and bitch about how you was treated in 357.
Then you’ll be sitting out there bitching about all the
tramps taking your f__ work.
[Henderson moved to within a few inches of the refer-
ral window.]
Mr. Kimble: He’s another one that tramped out of
here and then came back. Should have stayed on the f__
road.
Mr. Avena: He was a glutton for punishment. Ham-
mers and knives and he came back for more this week.
Cieklinski received dispatch to report to Newtron on May
27. Before Cieklinski reported to the jobsite, Westover tele-
phoned Bellard and asked him to spin the book jumper who had
accepted the dispatch.18 Bellard said he could not do it. West-
over said he was disappointed in Bellard and wanted to know if
he was sure about his decision. He said, “I can guarantee you
we’ll back you up on this one.” Bellard said he would talk to
Byrd and get back to Westover.
Bellard spoke to Byrd and Allen about his conversation with
Westover. Both men said they supported his decision. How-
ever, about 2 days later, Allen told Bellard he had decided not
to hire Cieklinski. When Cieklinski reported to the Big Horn
jobsite on the following day, Bellard apologized and told him
he had to spin him, that it was out of his hands, and he would
have to return to the hall and straighten out the problem there.19
A couple of days after Bellard refused to hire Cieklinski, Egge
told Bellard that prior to Cieklinski’s reporting to the jobsite,
Egge had warned Allen of potential sabotage problems if they
hired Cieklinski.20
After having been rejected for employment by Newtron,
Cieklinski signed Respondent’s out-of-work list on the follow-
ing day. Thereafter, he did not sign the book again and became
ineligible for dispatch a week later, as workers must sign the
list each Wednesday to be eligible. Cieklinski was unwilling to
sign the list because of what he had gone through. Although he
continued to maintain a residence in Las Vegas, he obtained
work in Los Angeles, California, as a traveler.21

18 Although Bellard could not recall if Cieklinski was named in the
conversation, it is clear from the circumstances that he was the individ-
ual referred to.
19 This conversation as related by Bellard is substantially corrobo-
rated by a tape recording made of the exchange by Cieklinski.
20 Some sabotage occurred at the jobsite but investigation failed to
identify the instigator(s). Egge admitted having dinner with Allen but
denied making any such statement to Bellard. I credit Bellard’s testi-
mony.
21 Respondent asserts that since September 2002, Cieklinski has
been ineligible to sign book one because of change of residency. The
evidence does not support such a conclusion.
ELECTRICAL WORKERS LOCAL 357 (NEWTRON HEAT TRACE, INC.) 1497
In June, Allen told Bellard he could not wait to get rid of the
other book jumper (Henderson). Two to three weeks later,
Allen told Bellard to lay Henderson off, to make it look legiti-
mate—like they weren’t picking on a book jumper, and to
choose another worker to lay off also. Bellard thereafter laid
off Henderson and Eric Richardson, the last two workers hired,
on July 3. Bellard falsely told the two that work was coming to
an end.22
After his layoff, Henderson again signed the out of work list.
During July, August, and the first half of September, when the
union dispatcher called his name, Henderson asked that he be
put on the side. On September 15, Henderson and Nairn ac-
cepted dispatches to DYNA Electric at the Mandalay Bay job-
site. Afterward, as Henderson stood 5 to 8 feet away from the
referral window, various Local 357 members approached him
and, similar to the previous incidents, berated him about having
accepted a call. During the harassment Bennington, occasion-
ally Poma, and once Large, looked on.
After enduring several minutes of Local members’ hostile
reproaches, Henderson and Nairn left the hiring hall and went
into the parking area. There, in a group of about eight people
including Local 357 members, Gering denounced Henderson,
in pertinent part, as follows:
Date and Place of Conversations
Outside the Hiring Hall
September 15
Speakers
Mr. Henderson
Jennifer Zambrano (Ms. Zambrano), Local 357 member
Eddie Gering (Mr. Gering), Local 357 member, and chairman
Executive Committee
Numerous unidentified voices
Conversations
Mr. Gering: . . . This is my f__ local right here. Why
the f__ don’t you go back to North Carol-f__[ina]?
Mr. Henderson: You better leave me alone.
Mr. Gering: Yeah? And what’s going to happen,
man? What’s going to happen if I f__ sit right here and
call you a piece of sh__.” What are you going to do about
that, huh? The piece of f__ sh__ that you are, m__-f__,
what are you going to do about that? You going to sit here
and let a little m__-f__ like me call you a f__ low-life f__
piece of sh__? What the f__ they teach you in North
Carolina, m__-f__? Huh? What the f__ they teach you
there, man? To f__ f__ your brothers? . . . Coming to this
local, f__ taking this work. Huh? We got local people on
the books waiting for them f__ jobs, man.
. . . .

22 Respondent argues Bellard was motivated to testify dishonestly
because of a dues dispute he had with Respondent. As noted above, I
found Bellard to be a forthright and sincere witness. I credit his testi-
mony.
Unidentified Male: You can do the right f__ thing and
turn that f__ call back in. Do the right f__ thing.
Mr. Gering: Dude, you ain’t in North Carolina, man.
You’re in 357. This sh—’s not acceptable. It may be f__
legal, but it ain’t acceptable, dude.
. . . .
Mr. Gering (pointing his finger at Mr. Henderson):
Well, he’s the scumbag that started this sh__. . . . That’s
why I’m f__ focusing on you, because you’re the scumbag
that started this f__ sh__. So what are you gonna do, man,
huh? What, you gonna beat me up? Is that what you’re
gonna do?
Mr. Henderson: You’re the one doing all the talking,
aren’t you?
. . . .
Mr. Gering: . . . Don’t tell me about it. I know the f__
law. I know the rules, man. There’s f__ laws and then
there’s rules. Rules is: You come here as a guest, you
don’t f__ come here and take our f__ work. We got peo-
ple on the book. . . . You wait your f__ turn, if it gets to
you, and then you take it. You don’t f__ jump the book.
. . . You’re a f__ rate; you’re a f__ worm; you’re a f__
scab.
. . . .
Mr. Gering: You can f__ get in your cars and drive
off, but I’ll guarantee you it ain’t over, man. I’m gong to
make it my f__ quest.23
Unidentified Male: There’s water waiting for you at
Mandalay . . . we’ll get the word out.
Ms. Zambrano (who had been talking on her cell
phone, telling someone Mr. Henderson was going to take
the call to the Mandalay Bay job): Don’t worry, brother.
You’re taken care of. Just like you took care of us.
I do not find it necessary to describe further this verbal attack
on Henderson. Suffice it to say that with virtually no response
from Henderson, Gering, with group support, continued his
repetitiously obscene harangue. Gering admitted to an “un-
pleasant confrontation” with Henderson about his accepting
dispatch although Gering knew it was illegal to impose a rule
that travelers go on the side. He was angry with Henderson
because he chose “not to abide by traditions and standards of
conduct that we impose upon ourselves.”
Michael David Naddeo (Naddeo) a traveler from Local 640
out of Phoenix, Arizona, was outside the union hall during the
above-described confrontation in the parking lot. He saw Large
nearby talking to someone in a truck. Naddeo approached
Large and spoke to him briefly about a grievance. Then Nad-
deo looked toward Henderson and the group and said, “Terry,
looks like you’re going to have another lawsuit on your hands.”
Large said, “All I see is some brothers having a disagree-
ment; what goes on in the parking lot is none of my business.”

23 According to Gering, by that comment, he meant he would con-
tinue to let Henderson and others know what Henderson was doing
wrong.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1498
Large’s denial of this conversation was vague. When asked if
he remembered someone pointing out the September parking
lot argument to him, he answered, “Not to any detail.” He then
testified he talked to 200 to 300 people every morning and ever
couldn’t remember “Mike coming up and saying anything to
me at any given time.” As with Large’s other denials, I do not
find this one credible.
After observing the group’s verbal attack on Henderson in
the parking lot, Nairn returned to the hiring hall and turned in
his job referral to Large. There is no evidence Large inquired
what had prompted Nairn’s change of mind.24
On October 3, Henderson requested a copy of the side list
from Large. Large asked if Henderson had a tape recorder on
him. Large refused to give Henderson a copy of the side list,
saying he didn’t have one, that he had thrown it away.
Henderson did not complain of any of the local members’
conduct and harassment to any of Respondent’s business agents
or officials because he felt there was no point in complaining to
people who “sicked [sic] [the local members] on us.”
V. DISCUSSION
A. Agency Status of Egge and Gering
Section 2(13) of the Act provides:
In determining whether any person is acting as an “agent” of
another person so as to make such other person responsible
for his acts, the question of whether the specific acts per-
formed were actually authorized or subsequently ratified shall
not be controlling.
It is well established that, under Section 2(13) of the Act,
employers and unions are responsible for the acts of their
agents in accordance with ordinary common-law rules of
agency. Town & Country Supermarkets, 340 NLRB 1410
(2004), citing Longshoremen ILA (Coastal Stevedoring), 313
NLRB 412, 415 (1993), remanded 56 F.3d 205 (D.C. Cir.
1995), cert. denied 516 U.S. 1158 (1996). The Board has also
noted, “When applied to labor relations . . . agency principles
must be broadly construed in light of the legislative policies
embedded in the Act.” Longshoremen ILA, supra, stating fur-
ther at 417, “Courts have concluded that under the NLRA,
agency principles must be expansively construed, including
when questions of union responsibility are presented [citations
omitted].” The Board adopts the concept of apparent authority
and, when determining whether it has been created, notes (1)
there must be some manifestation by the principal to a third
party, and (2) the third party must believe that the extent of the
authority granted to the agent encompasses the contemplated
activity. Pratt Towers, Inc., 338 NLRB 61, 72 (2002).
Egge was Respondent’s union steward on the Big Horn job-
site at the time he asked Bellard to spin Henderson and threat-
ened retaliation if he did not. As union steward, Egge dis-
cussed employee complaints, and safety and pay issues with the
jobsite supervisor, had authority to write grievances and to

24 After September 15, Nairn did not accept any dispatch until No-
vember 17 when he was referred to a Bechtel jobsite without incident.
Working at that jobsite requires a daily 4-hour round-trip bus ride,
which supports an inference that it was not a sought-after job.
resolve them, and served as liaison between Respondent and
the jobsite. I find Egge had apparent authority to act on behalf
of Respondent during his conversations with Bellard, even if he
lacked actual authority. Later, Westover, an admitted agent of
Respondent, reinforced Egge’s apparent authority; when Mr.
Bellard asked Westover what he wanted to do about the pro-
spective book jumper, Westover implicitly espoused Egge’s
appeals and threats by encouraging Bellard to do the “right
thing” and by promising him personal benefit if he did so.
Accordingly, I find Respondent gave Newtron a reasonable
basis for believing that Egge had the apparent authority to make
the requests and threats herein. Communications Workers Lo-
cal 9431 (Pacific Bell), 304 NLRB 446, 447 (1991).
At the time Gering verbally assaulted Henderson on Septem-
ber 15, he was in a brief hiatus from his position as union or-
ganizer but was still the chairperson of the Respondent’s execu-
tive committee. Local 357 members contacted him with their
concerns about travelers accepting referrals instead of going on
the side because, in Gering’s view, they knew he had held a
position with Respondent. There is no evidence Gering dis-
avowed authority or ability to deal with the concerns of mem-
bers who called him. Moreover, Gering conducted his verbal
assault in view of Large, a circumstance that must have demon-
strated to all who viewed it that Respondent had cloaked him
with authority to engage in the conduct. Id. I find Gering was
Respondent’s agent when he harangued Henderson on Septem-
ber 15.
B. Respondent’s 8(b)(1)(A) and (2) Conduct
Union-operated exclusive hiring halls are permissible em-
ployment systems when lawfully memorialized in collective-
bargaining agreements. Teamsters Local 357 v. NLRB, 365
U.S. 667 (1961). In operating hiring halls, unions must follow
clear and unambiguous standards set out in a collective-
bargaining agreement. Further,
A union which operates a hiring hall must represent all indi-
viduals seeking to utilize that hall in a fair and impartial man-
ner. In this regard, the Board has held that notwithstanding
the absence of specific discriminatory intent, “any departure
from established exclusive hiring hall procedures which re-
sults in a denial of employment to an applicant . . . inherently
encourages union membership, breaches the duty of fair rep-
resentation owed to all hiring hall users, and violates Section
8(b)(1)(A) and (b)(2),” absent demonstration of a legitimate
justification. Cell-Crete Corp., 288 NLRB 262, 264 (1988).
A union operating an exclusive hiring hall may not discrimi-
nate with respect to registration and referrals on the basis of
membership or nonmembership in the union. Electrical Work-
ers Local 3 (White Plains), 331 NLRB 1498 (2000). As stated
by the Board:
The operation of a union hiring hall imposes considerable re-
sponsibilities on the union agents in charge of the hall. Thus,
they must neither foster nor countenance discrimination with
regard to access to, or referral from, the hall on the basis of In-
ternational union membership, local union membership, or
any other arbitrary, invidious, or irrelevant considerations [ci-
tations omitted]. Sachs Electric Co., 248 NLRB 669, 670
ELECTRICAL WORKERS LOCAL 357 (NEWTRON HEAT TRACE, INC.) 1499
(1980) [enfd. in part sub nom. NLRB v. Electrical Workers
Local 453, 668 F.2d 991 (8th Cir. 1982)].
Section 8(b)(2) of the Act provides that it is an unfair labor
practice for labor organizations “to cause or attempt to cause an
employer to discriminate against an employee in violation of
subsection (a)(3)” of the Act, i.e., “in regard to hire or tenure of
employment or any term or conditions of employment to en-
courage or discourage membership in any labor organization.”
The General Counsel contends that since March 1, Respon-
dent has independently violated Section 8(b)(1)(A) of the Act
by the following conduct:
1. Since March 1, maintaining at its hiring hall the
side list practice and procedure whereby travelers surren-
dered employment referral opportunities to permit dis-
patch of Local 357 members and applying said side list
practice to Mr. Cieklinski, Mr. Henderson, Mr. Nairn, and
other travelers.
2. On March 7, threatening travelers with denial of
membership in Local 357 and consequent loss of job op-
portunities because they refused to surrender job referrals
to local members.
3. On March 7, May 16 and 23, and September 15, re-
straining and coercing travelers into surrendering job re-
ferrals to members of Local 357 by participating in, acqui-
escing in, or failing to take any action against members of
Local 357 who threatened bodily harm and disparaged
travelers who accepted job referrals.
4. On October 3, failing and refusing to provide trav-
elers with requested copies of the side list.
The General Counsel also contends that since March 1, Re-
spondent has violated Section 8(b)(2), (1), and (A) of the Act
by the following conduct:
1. On May 18, requesting Newtron to refuse to hire
Mr. Henderson and in late May, requesting Newtron to
discharge Mr. Henderson, thereby causing or attempting to
cause Newtron to refuse to hire and to discharge Mr. Hen-
derson.
2. On May 23, requesting Newtron to refuse to hire
Mr. Cieklinski, thereby causing or attempting to cause
Newtron to refuse to hire Mr. Cieklinski.
The evidence is persuasive, indeed compelling, that Respon-
dent was at all relevant times aware that its longstanding hiring
hall side-list practice was maintained and perpetuated through
pressure exerted overtly by Local 357 members and covertly by
Respondent. Members and Respondent’s agents alike referred
pejoratively to travelers who did not abide by the side-list prac-
tice as “book jumpers.” Not only was Respondent aware of its
members’ hostility to book jumpers, Respondent’s agents sup-
ported and even fostered the side-list practice. On March 7,
when Cieklinski told Westover he would have to eschew the
side-list practice that day and take a job, Westover failed to
affirm his legal and contractual right to do so. Rather Westover
warned him of disadvantageous ramifications, including inabil-
ity to obtain Local 357 membership. Even Westover’s wishing
Cieklinski luck in jumping the book was, in the circumstances,
a none-too-subtle message that Respondent would not support
his action. When, shortly thereafter, Cieklinski accepted the
job referral to which he was entitled, the dispatcher, Large,
expressed his surprise and asked if Cieklinski were sure he
wanted to do it. I cannot accept Respondent’s assertion that
Large’s comment simply denoted surprise that Cieklinski was
changing his usual custom of side listing his name. Rather, I
conclude Large’s reaction was yet another unsubtle message of
nonsupport, immediately reinforced by Large’s unfounded
threat that the job would only last 41 hours.
Immediately after Cieklinski accepted the job referral and
while within close proximity to the office window from which
Large and Westover could oversee the hall, Local 357 members
subjected Cieklinski to name calling and threats of physical
retaliation if he did not revoke his referral. Credible testimony
established that such confrontations were atypical, and it is
reasonable to infer that Respondent’s officials would have at
least inquired into the cause of the angry disruption unless they
approved it. There is no other reasonable explanation of their
nonintervention and their complacent acceptance of Ciek-
linski’s subsequent job referral revocation. Indeed, Westover
and Large implicitly evinced their approbation of the harass-
ment and tacitly encouraged it by accepting without question or
comment Cieklinski’s return of the referral for Local 357 mem-
bership benefit. Cieklinski and later Henderson’s failure to
complain to the Local 357 representatives about what had oc-
curred does not change this conclusion. Under all the circum-
stances, including the inaction of the referral appeals commit-
tee, it was demonstrably futile for any of the travelers to com-
plain. See Iron Workers Local 433 (Steel Fabricators Assn.),
341 NLRB 523, 527 (2004).
Respondent contends that no union representative heard
threats to or harassment of Cieklinski or Henderson, implicitly
claiming not only uninvolvement in but also ignorance of any
coercion. Respondent’s claims are so disingenuous as to ap-
proach mendacity. Tilmont had discussed Cieklinski’s com-
plaints with Respondent’s business manager, Jones. Cieklinski
had complained to IBEW district officers about the situation
and had taken his complaint to a hearing before the referral
appeals committee, over which Respondent’s president pre-
sided. Local 357 members regularly raised the issue of travel-
ers refusing to go on the side in union meetings, and there is no
evidence that Respondent’s officials explained the travelers’
legal right to do so or attempted in any way to restrain union
members’ disapprobation. Moreover, Respondent directly
solicited Newtron to refuse to hire Henderson and Cieklinski
because they had flouted the side-list procedure. As to Re-
spondent’s contention that it was oblivious of the hiring hall
harassment of Cieklinski and Henderson, the argument lacks
credibility. While union representatives present in the hall
during the harassment probably did not hear all the exchanges,
tape-recording clarity, supporting testimony, and other circum-
stances set forth herein make it reasonably certain they heard
enough to know what was going on, but did nothing to stop it.
When Henderson legally accepted a dispatch on May 16, Re-
spondent again turned a blind eye to the resulting and outra-
geously abusive uproar among its members and other job appli-
cants who openly verbally attacked and threatened Henderson.
While Large could not deny the incident occurred, he mini-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1500
mized it by calling it a “commotion” he could not be bothered
to deal with. When Local 357 members and other job appli-
cants directed similar and volubly open vilification at Ciek-
linski and Henderson on May 23, Respondent’s agents again
remained deliberately oblivious to what they could not possibly
have failed to observe.
On September 15, Local 357 membership again directed
threats and hostility toward Henderson and Nairn for accepting
dispatches in the most bullying and intimidating display of
animosity yet. This time Respondent’s agent, Gering, spear-
headed the attacks. Even assuming Respondent should not be
held directly accountable for the threats and intimidation,
credible evidence establishes that Large was fully aware of
Gering’s conduct on that occasion and deliberately ignored it,
saying, “All I see is some brothers having a disagreement; what
goes on in the parking lot is none of my business.” Apparently,
Respondent viewed what had gone on in the hall itself on that
and previous occasions as equally beyond its responsibility.
When, on September 15, after enduring threats and hostility,
Nairn surrendered his job referral, no dispatching official asked
why he had done so, investigated the circumstances, or took
any action whatsoever to restrain the hostile tactics of the hiring
hall denizens.
Respondent contends that it cannot be held liable for coer-
cive conduct unless committed by the labor organization or its
agents. I cannot agree. Even aside from the September 15
conduct of Gering, Respondent’s agent, Respondent must bear
responsibility for conduct acquiesced in and condoned by its
representatives, which takes no steps to disavow. See Laborers
Local 616 (Bruce & Merrilees Electric Co.), 302 NLRB 841
(1991); Dover Corp., 211 NLRB 955, 957 (1974), enfd. 535
F.2d 1205 (10th Cir. 1976). Respondent’s ongoing and fre-
quently demonstrated indifference and inaction toward the hir-
ing hall applicants’ harassment of disobliging travelers are not
only inconsistent with its duty to represent all hiring hall appli-
cants fairly and impartially, they are convincing evidence of its
acquiescence in and approval of the conduct. Moreover, the
evidence does not support any argument that Respondent’s
actions or inactions in this matter resulted from mere negli-
gence or inadvertent mistake so as to preclude liability.25
Rather Respondent’s conduct fits within those descriptive terms
the Board uses to describe breaches of a union’s duty to exer-
cise authority over referrals in a nonarbitrary and nondiscrimi-
natory fashion:
“[A]rbitrary,’ ‘invidious,’ ‘discriminatory,’ ‘hostile,’ ‘unrea-
sonable,’ ‘capricious,’ ‘irrelevant or unfair considerations,’
without ‘honesty of purpose’” [all of which] indicate deliber-
ate conduct that is intended to harm or disadvantage hiring
hall applicants. They all imply that the union is either using
its power to control referrals against the interests of individual
applicants or classes of applicants, or that it may do so at any
time, at its discretion. Plumbers Local 342 (Contra Costa
Electric, Inc.), 336 NLRB 549, 551 [(2001), affd. sub nom.
Jacoby v. NLRB, 325 F.3d (D.C. Cir. 2003)], quoting Brein-
inger v. Sheet Metal Workers Local 6, 493 U.S. 67, 89 (1989).

25 See Plumbers Local 342 (Contra Costa Electric), 329 NLRB 688
(1999), revd. sub nom. Jacoby v. NLRB, 233 F.3d 611 (D.C. Cir. 2000).
Respondent also contends it is not responsible for the con-
duct of nonrepresentatives because it published an anti-
harassment policy and because Cieklinski, Henderson, and
Nairn did not follow the relief provisions in that policy. Re-
spondent further argues that the three men did not exhaust
available internal union remedies. While it is true that the three
travelers did not follow the specific procedures envisioned by
the antiharassment policy or file internal union charges against
IBEW members who harassed them, the evidence is clear that
such would have been acts of futility. Respondent was well
aware of the harassment. Respondent had already ignored an
opportunity to address the problem when Cieklinski sought and
obtained a hearing before the appeals committee regarding the
integrity of the referral procedure. Following that hearing,
Respondent not only took no action, but by its subsequent deci-
sion denied there was any problem, asserting the committee had
found no violation of the inside construction agreement. After
the committee’s decision and after Respondent’s open and de-
liberate disregard of the harassment, the protesting travelers
were justified in believing it was useless to seek Respondent’s
help.
By its conscious and willful refusal to acknowledge or inves-
tigate its membership and other’s conduct or to take steps to
control it, Respondent restrained and coerced travelers into
surrendering job referrals to members of Local 357 and partici-
pated in, acquiesced in, and failed to take any action against
members of Local 357 or others who threatened bodily harm
and disparaged travelers who accepted job referrals, in violation
of Section 8(b)(1)(A) of the Act. While specific evidence of
travelers being deterred from accepting job referrals by Re-
spondent’s unlawful conduct was presented only as to Ciek-
linski, Henderson, and Nairn, it is reasonable to conclude other
travelers were similarly deterred.
Credible evidence also establishes that Respondent’s agents
actively sought to prevent Newtron’s employment of both Hen-
derson and Cieklinski. On about May 16, through Egge and
Westover, Respondent unsuccessfully attempted to cause New-
tron to refuse to hire—that is, discriminate against—Henderson
by asking Bellard to spin Henderson and threatening conse-
quences if he did not. Respondent’s lack of success makes its
efforts no less a violation of Section 8(b)(2). On May 23,
through the same two agents, Respondent successfully caused
Newtron to refuse to hire, or to spin, Cieklinski. In both situa-
tions, Respondent was motivated by its animosity toward the
two travelers having lawfully accepted dispatch before all Lo-
cal 357 members on book one had been dispatched. Respon-
dent’s conduct in both instances violated Section 8(b)(2) of the
Act.
The General Counsel argues that Respondent caused New-
tron to lay off Henderson. While there is no direct evidence
that any agent of Respondent requested Henderson’s layoff, the
evidence does establish that Respondent made it abundantly
clear it did not want Henderson on the job. Egge threatened
that jobsite sabotage might follow Henderson’s employment,
and when Bellard later complained of work slowdown, Egge
said if Newtron got rid of Henderson, more work would get
done faster. Egge also told Bellard that employees would re-
ELECTRICAL WORKERS LOCAL 357 (NEWTRON HEAT TRACE, INC.) 1501
fuse to work overtime if Respondent assigned it to Henderson.
In these circumstances, Allen’s direction to Bellard to lay off
Henderson and to lay off another employee to make it look
legitimate was as instigated by Respondent as if Respondent
had directly demanded the action. Accordingly, I find Respon-
dent attempted to cause and did cause Newtron to lay off Hen-
derson in violation of Section 8(b)(1)(A) and (2) of the Act.
The complaint further alleges that Respondent refused to
provide Cieklinski with a copy of the side list when he re-
quested it on October 3 in violation of Section 8(b)(1)(A) of the
Act. Board law is clear that hiring hall records must be shown
to hiring hall users on request. Bartenders & Beverage Dis-
pensers Local 165 (Nevada Resort Assn.), 261 NLRB 420
(1982). Although not as formally constituted or maintained as
dispatch and referral records, it is clear Respondent kept a daily
side list on which to document the names of travelers or other
individuals who wished to defer dispatch. Such a list is a hiring
hall record, which Respondent is obligated to furnish hiring hall
users on request. While Large denied any list existed that he
could produce for Cieklinski, I have not found him to be reli-
able, and I do not accept his assertion to Cieklinski that no side
list existed on October 3. Accordingly, I find that in not dis-
closing its side list to Cieklinski on October 3 the Union vio-
lated Section 8(b)(1)(A) of the Act as alleged in the complaint.
CONCLUSIONS OF LAW
1. Newtron Heat Trace, Inc. is and has been at all times ma-
terial an employer engaged within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Respondent is and has been at all relevant times, a labor
organization within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(b)(1)(A) of the Act by:
(a) Maintaining at its hiring hall a side-list practice and pro-
cedure whereby travelers surrendered employment referral
opportunities to permit dispatch of Local 357 members, and
applying said side-list practice to Cieklinski, Henderson, Nairn,
and other travelers.
(b) Threatening travelers with denial of membership in Local
357 and loss of job opportunities because they refused to sur-
render job referrals to local members.
(c) Restraining and coercing travelers into surrendering job
referrals to members of Local 357 by participating in, acquiesc-
ing in, or failing to take any action against members of Local
357 or other individuals who threatened bodily harm and dis-
paraged travelers who accepted job referrals.
(d) Failing and refusing to provide Cieklinski with requested
copies of the side list.
4. Respondent violated both Section 8(b)(2) and Section
8(b)(1)(A) of the Act by:
(a) Requesting Newtron to refuse to hire Henderson and at-
tempting to cause and causing Newtron to lay off Henderson, in
violation of Section 8(a)(3) of the Act.
(b) Requesting Newtron to refuse to hire Cieklinski, thereby
attempting to cause and causing Newtron to refuse to hire Ciek-
linski in violation of Section 8(a)(3) of the Act.
REMEDY
Having found Respondent has engaged in certain unfair la-
bor practices, I shall recommend it be ordered to cease and
desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act including the posting of a
remedial notice.
I shall also direct Respondent to make Michael J. Cieklinski,
Richard Brian Henderson, Al Nairn, and other travelers af-
fected by Respondent’s unlawful conduct whole, with interest,
for any loss of job opportunity caused by Respondent’s viola-
tions of both Section 8(b)(1)(A) and Section 8(b)(2) of the Act
as found herein.26 Such make-whole remedy shall include
payment to Cieklinski, Henderson, Nairn, and other affected
travelers and to the contractual fringe trusts for all loss of
wages and benefits and contractual fringe benefits, plus appro-
priate late trust payment penalties as provided by the collective-
bargaining agreement, which would have been paid for the
employment lost as a result of Respondent’s unfair labor prac-
tices.
Backpay shall be calculated in the manner set forth in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987). Contractual payments shall be made consistent with
Merryweather Optical Co., 224 NLRB 1213 (1976).
[Recommended Order omitted from publication.]

26 Respondent objects to so broad a remedy, contending the evidence
does not support a conclusion that travelers are coerced to go on the
side list. As explained earlier, the evidence shows pervasive, albeit
usually tacit, coercion condoned and acquiesced in by Respondent.
Therefore, the remedy is appropriate. Determining the identities and
job opportunity losses of and giving notification to such travelers as
may have been coerced is left to the compliance stage of this matter.