Iron Workers, Local 433

National Labor Relations Board - Board Decisions

Apr 12, 1977

228 N.L.R.B. 1420 (N.L.R.B. 1977)

1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Association of Bridge, Structural and
Ornamental Iron Workers, Local No. 433 (The
Associated General Contractors of California, Inc.)
and Waldo F . Kusterns. Case 21-CB-5081
April 12, 1977
DECISION AND ORDER
BY MEMBERS JENKINS , PENELLO, AND
WALTHER
On December 29, 1976, Administrative Law Judge
Richard D. Taplitz issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, the General Counsel
filed cross-exceptions and a supporting brief, and
Respondent filed a brief in response to the cross-
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge as
modified herein, and to adopt his recommended
Order, as modified.
In a background discussion of how Respondent
ran its hiring hall, the Administrative Law Judge
found that Respondent, through its agents, engaged
in threats and acts of violence against applicants for
protesting violations of the contractual hiring hall
procedures. On February 13, 1975, Lester Zink
questioned Business Agent Ward about a referral.
After a short discussion, Ward called Zink "a
trouble-making son-of-a-bitch" and threatened to
pound his head in the pavement. On February 19,
1975, Gilbert C. Sims had a conversation with
Business Agent Ward about the hiring hall. Sims said
that if unethical practices continued, someone was
going to sue the Union. Ward grabbed Sims by the
arms, cursed at him, shoved him backwards, told him
to get out of the hall and stay out, and said "you're
suing the Local and don't come back." Ward pushed
Sims to the floor, and Sims injured his back. Sims
called the police, and Ward was arrested. On March
24, 1976, Sims was approached by three ironworkers,
including a member of Respondent's executive
board. One said he would take Sims out, if Sims were
20 years younger, and work him over and would
grind Sims up, put him in a rendering plant, and do
away with him. Executive Board Member Dwayne
Duke said "that they had to get rid of all those s-o-
b's and the best thing to do would be to shoot Sims
and the rest of the NLRB witnesses ." Business Agent
228 NLRB No. 181
Thomas Wagner, who was in charge of the hall at the
time, listened to the remarks with a smile on his face
and said nothing. As found by the Administrative
Law Judge, whether or not Duke was an agent of
Respondent, Wagner acquiesced in those threats
through his silence.
Although the threats and the act of violence were
not specifically alleged in the complaint to violate the
Act, they are closely related to and indicative of the
manner in which the hiring hall was operated and,
therefore, fall within the general allegation of the
complaint that Respondent violated the Act by
operating its hiring hall in an arbitrary, capricious,
and unfair manner. For the above reasons, we find
that Respondent, by engaging in the threats and act
of violence, has restrained and coerced Lester Zink
and Gilbert S. Sims in the exercise of their protected
rights and has thereby violated Section 8(b)(1)(A) of
the Act. We shall accordingly amend the order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, International Association of Bridge, Structural
and Ornamental Iron Workers, Local No. 433, its
officers, agents, and representatives, shall take the
action set forth in said recommended Order as so
modified:
1. Add the following as paragraph 1(b) of the
recommended Order and reletter the remaining
paragraphs accordingly:
"(b) Engaging in threats and acts of violence
against employees or applicants who protest the
manner in which the hiring hall is run."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT operate our exclusive hiring hall
in disregard of the provisions of our July 1, 1974,
collective-bargaining agreement with various
associations and employers, or any successor
agreement.
WE WILL NOT engage in threats or acts of
violence against employees or applicants who
protest the manner in which we run the hiring
hall.
IRON WORKERS , LOCAL 433 1421
WE WILL NOT dispatch any individual in
violation of said contractual hiring hall proce-
dures.
WE WILL NOT fail to dispatch any individual
who is entitled to dispatch pursuant to said
contractual hiring hall procedures.
WE WILL NOT in any manner restrain or coerce
employees or applicants for employment in rights
guaranteed to them in Section 7 of the Act.
WE WILL operate our exclusive hiring hall in a
nondiscriminatory manner and in accordance
with the provisions of our July 1, 1974, collective-
bargaining agreement with various associations
and employers, or any successor agreement.
WE WILL make whole those individuals who
were unlawfully refused dispatch for any loss of
earnings and benefits they suffered.
WE WILL maintain a book or semipermanent
type of record to reflect accurately, fairly, and
nondiscriminatorily, the operation of the referral
system from the hiring hall, and for a period of 1
year, we will disclose to the Regional Director for
Region 21 or his agents the manner of operation
of the hiring hall.
1. Whether Respondent violated Sections 8(b)(1)(A)
and (2) of the Act by:
(a) Since March 12, 1974, failing and refusing to operate
its exclusive hiring hall in accordance with contract
provisions and by operating its hall in an arbitrary,
capricious , and unfair manner.
(b) On and between specific dates, dispatching certain
individuals to various employers from its hiring hall
without legitimate business reason, and without regard to
relative placement of applicants for employment on its
"out-of-work" list.
2. If a violation is found , whether Respondent should
be ordered to pay backpay to unnamed applicants who
should have been but were not referred for employment
from the hiring hall.
All parties were given full opportunity to participate, to
introduce relevant evidence , to examine and cross -examine
witnesses , to argue orally and to file briefs . Briefs, which
have been carefully considered , were filed on behalf of the
General Counsel and Respondent.
Upon the entire record of the case and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANIES
INTERNATIONAL
ASSOCIATION OF
BRIDGE, STRUCTURAL
AND ORNAMENTAL
IRON WORKERS, LOCAL
No. 433
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge: This
case was heard at Los Angeles, California, on June 16, 17,
and 18, and July 6, 20, 21, and 22, 1976. The charge and
amended charge were filed by Waldo F. Kusterns, an
individual, on September 12 and October 18, 1974,
respectively. The complaint, amended complaint, erratum,
second erratum, and amendment to amended complaint
issued on February 19, May 14, December 22 and 23, 1975,
and March 9, 1976, respectively, alleging that International
Association of Bridge, Structural and Ornamental Iron
Workers, Local No. 433, herein called Respondent or the
Union, violated Section 8(b)(1)(A) and (2) of the National
Labor Relations Act, as amended. The complaint was
further amended at the hearing.'
Issues
The primary issues are:
i The various amendments were incorporated in a single document
called "information copy" which was received in evidence as G.C Exh. 2
All references herein to the paragraph numbers of the complaint are keyed
to that "information copy."
2 The employer parties to the current contract (G.C Exh. 13), which runs
Respondent has collective-bargaining agreements with a
number of associations and individual employers who
employ ironworkers. That contract contains an exclusive
hiring hall arrangement under which employees are
referred from a hiring hall operated by Respondent. The
issues in this case relate to Respondent's conduct in
operating that hiring hall.
The Associated General Contractors of California, Inc.,
the Western Steel Council, Inc., and California Iron
Workers Employers Council are each associations com-
prised of various employers and each negotiates collective-
bargaining agreements on behalf of their employer-mem-
bers with various labor organizations including Respon-
dent. Each is a party to a collective-bargaining agreement
with Respondent which provides for an exclusive hiring
hall.2 The employer-members of each association are
engaged in California as steel erection contractors or
general contractors in the building and construction
industry and the employer-members of the associations in
the aggregate annually purchase and receive goods valued
in excess of $50,000 from outside of California. The
associations and their respective employer-members are
employers engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. The following companies
are also engaged in the building and construction industry,
are bound to a contract with Respondent which contains
the hiring hall provision, and are employers engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act: Binks Manufacturing Company, which has a place of
from June 1, 1974, through June 30, 1977, are various associations and
employers, and the union parties are the District Council of Iron Workers of
the State of California and Vicinity and Local Unions, including Respon-
dent
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business in California and annually purchases goods
valued in excess of $50,000 directly from suppliers outside
of California; RPM Erectors, Inc., which has a place of
business in California and annually performs services
valued in excess of $50,000 for customers outside of
California; Rohr-Plessey Corporation, which has a place of
business in California and annually purchases goods
valued in excess of $50,000 directly from outside of
California; Bovee & Crail Construction Co., which has a
place of business in California and annually purchases
goods valued in excess of $50,000 directly from outside of
California; Nemco, Inc. (formerly known as Nichols
Engineering and Materials Co.), which has a place of
business in Dallas, Texas, and annually purchases goods
valued in excess of $50,000 directly from outside of
California and Texas; and Star D Iron, which has a place
of business in California and annually purchases goods in
excess of $50,000 directly from outside of Califorma.3
II. THE LABOR ORGANIZATION INVOLVED
Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
E - . . . The selection and referral of applicants
shall be operated in accordance with the following
plan:
Any workman desiring employment in work
covered by this Agreement shall be registered in
one of the Groups listed below. Each such
workman shall be registered in the highest
priority Group for which he qualifies.
Group "A"
All applicants for employment who have worked at
the trade as journeymen or apprentices in work of the
type covered by this Agreement for the past three (3)
years in the geographic area covered by this Agree-
ment , provided, however , if such applicants request
registration in this Group with the designation of a
particular classification or classifications, and specialty
or specialties , they shall have worked at least six (6)
months within the three (3) years immediately preced-
ing such registration, in such classification or classifica-
tions , and specialty or specialties. All apprentices
graduating to journeyman status within the coverage of
this Agreement shall be included in this Group "A."
A. The Contract
At all times material herein. Respondent has been a
party to a collective-bargaining agreement with the above-
named employers and associations, as well as a number of
other employers. That contract provides that the hiring of
employees who are employed by contracting employers
engaged in field fabrication and/or erection of structural,
ornamental, and reinforcing steel work is to be done
pursuant to the provisions set forth in section 5 of the
contract. Section 5 provides inter aka:
B - The individual employer shall have the right to
employ directly a minimum number of key employees
who may include a General Foreman and Foreman. In
addition, the individual employer shall have the right to
employ directly on any job in the locality in which the
individual employer maintains a principal place of
business all employees required on such job or jobs
provided such employees are regular employees of the
individual employer who have been employed by him
fifty percent (50%) of the working time of the applicants
during the previous twelve (12) months; and, on jobs of
the individual employer located outside of the locality
in which he maintains a principal place of business,
forty percent (40%) of such employees.
* * * *
C - All other journeymen required by an individual
employer shall be furnished and referred to such
individual employer through the hiring office of the
appropriate Local Union.
Group "B"
All applicants for employment who have worked at
the trade as journeymen or apprentices in work of the
type covered by this Agreement for the past four (4)
years, provided, however, if such applicants request
registration in this Group with the designation of a
particular classification or classifications, and specialty
or specialties, they shall have worked at least nine (9)
months within the four (4) years immediately preceding
such registration, in such classification or classifica-
tions, and specialty or specialties.
Group "C"
All applicants for employment who have worked at
the trade as journeymen or apprentices in work of the
type covered by this Agreement for the past two (2)
years or more and who have for the past year actually
resided within the geographic area covered by this
Agreement.
Group "D"
All applicants for employment who have worked at
the trade in work of the type covered by this Agreement
for one (1) year or more immediately preceding the
date of their registration.
Group "E"
All other applicants for employment.
3 The contract relationships between other employers named in the
complaint and Respondent are discussed below
IRON WORKERS , LOCAL 433
F - Each Local Union shall maintain each of the
separate Group lists set forth above which shall list the
applicants within each Group in the order of the dates
they registered.
G - 1 - Individual employers shall advise the
appropriate Local Union of the number and classifica-
tion or classifications, and specialty or specialties, of
applicants required. The appropriate Local Union shall
refer applicants to the individual employer by first
referring applicants in Group "A" in the order of their
places on said list and then referring applicants in the
same manner successively from the lists in Group "B,"
then Group "C," then Group "D," then Group "E."
2 - Whenever a Local Union maintains a branch
hiring hall, the individual employer shall call the main
hiring hall for workmen whenever the branch hiring
hall's out-of-work list is exhausted of all workmen who
are bona fide residents in the territorial area designated
for the branch hiring hall. Workmen shall not be
registered on more than one out-of-work list at any one
time.
H - 1 - Any individual desiring employment shall
register at the appropriate Local Union by appearing
personally and shall indicate his name, address,
telephone number, Social Security Account number,
classification or classifications, specialty or specialties
of the type of work desired, the date of such registration
and other pertinent information if required.
2 - Available for employment shall mean:
a - All individuals seeking employment under
Subsection H-1 above shall be in the Local Union at
regularly established Roll Call time.
b - All individuals eligible for referral shall be
present at the Local Union during dispatching hours;
provided, however, they may be present at a location
where they can be reached by telephone if they live in a
remote area or, due to extenuating circumstances,
cannot be personally present.
3 - a - Dispatching hours shall be from 8 a.m. to
10:30 a.m. daily (Saturdays, Sundays and recognized
holidays excluded). In emergency cases, workmen may
be dispatched other than at dispatching times.
* * * *
4 - Upon being referred, each individual shall
receive a referral slip to be transmitted to the employer
representative at the job site, indicating his name,
address, Social Security Account number, type of job,
date of proposed employment, date of referral and rate
of pay.
I - The order of referral set forth above shall be
followed except in cases where individual employers
require and call for applicants possessing special skills
and abilities in which case the appropriate Local Union
shall refer the first applicants possessing such special
skills and abilities in the order they appear on the
appropriate register.
1423
J - No provision of this Section shall constitute a
limitation on the right of the individual employer to
transfer workmen on his payroll from time to time and
from place to place at the discretion of the individual
employer, providing he secures fifty per cent (50%) of
his workmen from the Local Union having jurisdiction.
L - In the event the referral facilities maintained by
the appropriate Local Union are unable to fill the
requisition of an individual employer for employees
within a forty eight (48) hour period after such
requisition is made by the individual employer (Satur-
days, Sundays, and holidays excepted), the individual
employer may employ applicants from any source. In
such events, the individual employer will notify the
appropriate Local Union of the names, addresses,
Social Security Account numbers and dates of such
hirings. Such notification shall be given promptly but
not to exceed twenty four (24) hours after such hiring
(Saturdays, Sundays, and holidays excepted).
* * * * *
N - In cases where the individual employer hires
men in accordance with Section 5-B hereof, the
individual employer may hire by name, employees
hired from the Local Union and succeeding employees
hired by name shall be in the ratio of three (3) for each
five (5) employees hired. Such name hiring shall be
without regard to the position of the men requested on
the registration lists.
B. The Hiring Hall Procedure as it Should Operate
Under the Contract
Ironworkers in the building and construction industry
perform a large variety of tasks requiring different skills.
These range from the unloading of certain materials to
submarine work which involves underwater welding. A
journeyman ironworker generally can perform a number of
different types of work but not necessarily all of them.
Certain tasks, such as work on high iron beams, require a
great deal of physical dexterity while others require highly
specialized skills that are attained after extended experi-
ence. Ironworkers who use Respondent's hiring hall fill out
a self-qualification form in which they indicate what types
of work they can or will accept.
When an employer, who is bound by the contract, needs
ironworkers he can, to the limited extent specified in that
contract, employ ironworkers who have worked for him
previously. The employer must obtain other ironworkers
from the hall. When the employer wants ironworkers from
the hall, he notifies an agent of Respondent at the hiring
hall of his needs and an order is placed for those workers.
The order is given to the hiring hall either by phone or by a
request delivered at the hall. Sometimes the employer
specifically states what type of skills are needed by
ironworkers who are to be sent by the hall and at other
times Respondent's business agent at the hall knows what
skills are needed through his servicing of the job and
therefore is in a position to make a judgment as to what
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
skills are required . Most orders are placed by employers 1
or 2 days before the ironworkers are needed . The employer
can place two types of orders . One is a "by name" order in
which the employer requests a specific named ironworker.
To the extent that the employer is permitted by the
contract to hire certain employees that he has employed
previously, the hiring hall is supposed to dispatch that
named employee . The other is an "open order " in which an
ironworker is supposed to be dispatched from an "out of
work" list.
When an ironworker desires a dispatch from the hiring
hall, he goes to the hiring hall and signs an out -of-work list.
When he does so, the business agent who is in charge of the
hall at the time gives the ironworker an out -of-work
number . The hiring hall is open and dispatches ironworkers
from 8 a .m. to 10:30 a.m . each weekday except for
holidays. Every Monday there is a general roll call of the
out-of-work list and the applicants on the out-of-work list
who answer the roll call are given new numbers on the out-
of-work list based on the number of dispatches that had
been made the previous week . As ironworkers with the
lowest numbers are dispatched , applicants on the out-of-
work list who appear at the hiring hall move down on the
list and receive lower numbers . Thus , those on the out-of-
work list who keep coming to the hall and are unemployed
longest should have the lowest numbers while new
applicants have the higher numbers . If an ironworker
accepts a dispatch for a job of a short duration, the
contract permits that ironworker to go back on the out-of-
work list in his old position . If the number he should have
has already been given out, he receives a fractional number
between two dispatch numbers so that he can retain his
relative position.
Respondent 's business agents are in charge of the hiring
hall on a rotating basis . When the business agent who is in
charge of the hall receives an order for ironworkers from an
employer, he calls out the order on a public address system
in the hall . He specifies the name of the employer and the
type of work that is to be done . The calls are made between
8 and 10 : 30 a.m . and the applicant for the job must be in
the hall when the call is made. There are often as many as
300 applicants , who are on the out-of-work list , physically
present at the hall when the calls are made . The largest
number of applicants are generally there on Mondays
when the roll call is taken, but a substantial number are
there whenever the hiring hall is open. When the call is
made , anyone with a number can make a bid on the job.
The bid with the lowest number receives the job. However,
the applicant with the lowest number may decide not to bid
on a particular job. The applicant may decide not to bid
because he doesn't feel he has the skills to do the job,
because the job is located at a greater distance than he
desires to travel , because he wants to wait for a job that
might be of longer duration, or any one of a number of
other reasons . The lowest number bidding on the job is
then given a referral or dispatch slip to the job which is
signed by the business agent in charge . He then reports for
work.
4 These findings are based on the credited testimony of Johnson. Ward
did not testify
5 These findings are based on the credited testimony of Johnson Lester
There is no allegation that the hiring hall provisions set
forth in the contract or the practice described above is
unlawful . It is alleged that Respondent has violated the Act
by bypassing the proper hiring hall procedure by filling
open orders through the dispatch of employees who were
not on the out-of-work list ; by dispatching employees "by
name" where the employer has placed an open order; and
by filling open orders by dispatching employees without
announcing the orders at the hiring hall. The parties use
the term "backdooring" to refer to any situation where an
applicant is referred to a job without the proper hiring hall
procedures being followed . The General Counsel contends
that large numbers of applicants were unlawfully "back-
doored" to employment . Respondent denies that conten-
tion.
C. Insights Into the Actual Working of the
Dispatch System
1. Statements by Union Business Agent Joe Ward
Specific instances of back-door referrals are discussed in
detail in sections D through K of this Decision. Various
statements and actions of Respondent 's business agents
must be considered both to shed light on the dispatch
system and to put those specific instances of backdooring
into perspective.
Joe Ward is a business agent of Respondent. He and the
other business agent take turns running the hiring hall and
he has often been in charge of the hall . In addition, the
business agents, including Ward , service various employers
on behalf of Respondent . Ward is an agent of Respondent.
Carpenters District Council of Denver and Vicinity (Hensel
Phelps Construction Co.), 222 NLRB 551, 553 , fn. 2 (1976).
In early August 1974, ironworker Howard Johnson was
dispatched to the Binks job . On the day of that dispatch, he
had a conversation with Ward when Ward was in the
dispatch office behind the dispatch cage. When Johnson
approached the cage and bid on a job , Ward said "you
found out I was going to backdoor the job , didn't you."
Johnson replied that he did not doubt it .4
On January 29, 1975 , Ward was in the dispatch cage of
the union office when Howard Johnson, an ironworker
who was seeking dispatch, had a conversation with him.
Johnson asked Ward about some men that Johnson
believed had been backdoored to a job at Standard Oil.
Ward said that he didn't have anything to do with it and
that Johnson would have to talk to Business Agent Tom
Wagner . Johnson asked Ward when Ward was going to
stop backdoormg the jobs , and Ward replied "I ain't never
gonna stop backdooring the jobs as long as I'm an officer
of this local union." Johnson asked Ward for the number
of the National Labor Relations Board and Ward told
Johnson to get out.5
On January 26, 1976, Ward announced an order at the
hiring hall for a welder for California Blow Pipe . A number
of men in the hall shouted "Send Potter back" and Ward
Zink, an ironworker who was also applying for work, overheard the
conversation . His testimony corroborated Johnson's.
IRON WORKERS , LOCAL 433 1425
said "In no way will I send anybody back to a job that's
suing the union."6
2. The altercation between Business Agents Ray
Kenney and Les Rogers
Les Rogers is president and a business agent of
Respondent. Ray Kenney is also one of Respondent's
business agents. Both Rogers and Kenney are agents of
Respondent.
Respondent held an executive board meeting at the
union hall at 8 p.m. on September 25, 1975. Shortly before
the meeting began, Rogers told Kenney that Kenney had
dispatched two men in Rogers' territory and that he
(Rogers) didn't want Kenney ever to interfere with his
territory again . Kenney went into the executive board
meeting . Shortly thereafter, Rogers came into the room,
knocked Kenney down and "stomped" him. Rogers said
"I'm going to kill you" and cursed him. Rogers then said
"Are you ever going to do that again ." Kenney didn't
answer and Rogers hit him again.? Kenney was then taken
to the hospital. Johnny Caroll called Kenney on the
telephone 2 or 3 days later at the hospital and asked him
how he felt. Kenney replied that he was paralyzed in his
speech and a certain part of his body. Caroll asked him
what happened. Kenney replied that a contractor in
Rogers' territory called him asking for two men and he
filled the order. Caroll asked why Rogers didn't fill it.
Kenney answered that it was because Rogers and Tom
Wagner (another business agent), were on a week's drunk
and he couldn't find them.
an unethical practice and if it continued, sooner or later
someone was going to sue the Union. At that point Ward
grabbed Sims by the arms, cursed at him, shoved him
backwards, and told him to get the hell out of the union
hall and stay out. Ward said "You're suing the Local and
don't come back." Ward pushed Sims to the floor and Sims
landed on his spine, injuring his back. Sims called the
police and Ward was arrested. This incident occurred on
February 19, 1975, and Sims' doctors did not release him to
go back to work until July 1, 1975.9
On March 24, 1976, Sims was at the hiring hall.10 Union
Business Agent Thomas Wagner" was in the dispatch
window at the time and Sims was standing about 8 feet
away. Executive Board Member Dwayne Duke, together
with Pearce Bowers, and Kenny Roberson approached
Sims . Bowers said that if Sims was 20 years younger, he
(Bowers) would take him out and work him over. Bowers
also said that he would grind Sims up, put him in a
rendering plant and do away with him. Executive Board
Member Duke said that they had to get rid of all those s-o-
b's and the best thing to do would be to shoot Sims and the
rest of the NLRB witnesses . Roberson said that he would
help, and that they would get rid of them one way or
another. Respondent's business agent , Wagner, listened to
those remarks with a smile on his face and didn't say
anything. Wagner was in charge of the hall at the time, yet
he said nothing when Respondent's executive board
member threatened Sims . Whether or not the executive
board member was an agent of Respondent, Wagner
acquiesced in those threats through his silence.12
3. The threats and violence against applicants
who questioned the hiring hall procedure
On February 13, 1975, Ward was in charge of the hiring
hall. Ward announced a "by name" call for an ironworker
named Saunders for a job with Michelle and Pfeffer at the
Good Samaritan Hospital. One of the applicants at the
hall, Lester Zink, questioned Ward about that referral and
Ward replied that Saunders had worked for the company
before. Zink said that Ward was a liar and that the man
couldn't have worked for the company before because the
company hadn't been in town before. Ward replied by
calling Zink a trouble making son-of-a-bitch and by
threatening to pound his head in the pavement.8
At about 7:30 a.m. on February 19, 1975, Gilbert C. Sims
and a number of other applicants for referral had a
conversation in the hiring hall before the dispatch office
opened. Business Agent Ward was also present. Suns said
that the previous day Business Agent Red Welch had
dispatched the son of Business Agent Les Rogers to the
post office job in the City of Commerce without announc-
ing that call over the P.A. system. Sims also said that it was
6 This finding is based on the credited testimony of O'Connor
7 These findings are based on the credited testimony of Johnny Caroll,
who observed the entire incident. Neither Rogers nor Kenney testified
6 These findings are based on the credited testimony of Zink, which was
corroborated by the testimony of Gilbert C Sims, who overheard the
conversation
9 These findings are based on the credited and uncontradicted testimony
of S1ms
10 Sims testified that the date was March 24, 1975 However, he referred
4. The removal of Cunningham as steward for
Blount
In April 1974, Blount Brothers began work at the bulk
mailing center in Bell, California . At that time, Larry
Cunningham was the job steward for Respondent at the
Blount job . Roger Evans was the Blount supervisor in
charge of hiring. Evans notified Cunningham of Blount's
need for ironworkers and Cunningham passed the orders
on to the hiring hall. Some time near the end of May 1974,
Cunningham called Respondent 's president and business
agent, Les Rogers , about a problem on the job. Rogers
responded by asking Cunningham what Cunningham was
doing on the job. Rogers said that he wanted his men and
his steward . The next day, Rogers came to the jobsite,
where he told Cunningham and the other employees that
he was very upset and hurt that they were on the job
without his knowing. Cunningham replied by saying that
he had personally delivered three steward reports to
Respondent at the union hall. Rogers said that if there was
any hiring to be done on the job, that he was to be notified
and that Cunningham was to call him at his home.
to that date after testifying to jobs that he bid on in the year before the
hearing. He also testified that on that date remarks were made about NLRB
witnesses . It appears that Sims intended to refer to the year 1976 rather than
1975 In any event , the year is not critical as both dates would be within the
Sec 10(b) statute of limitations.
i Wagner is an agent of Respondent
12 These findings are based on the credited and uncontradicted
testimony of Sims. Wagner , Duke, Bowers, and Roberson did not testify.
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cunningham replied that he would do so, but in fact
Cunningham never did call Rogers at home.
A few days later Rogers came back to the job and spoke
to Cunningham in front of the crew. Rogers said that he
saw that another man had been hired without his being
called but that he didn't care because he knew that the man
and Cunningham were friends. Rogers also said that he
had to be notified about any more members that were
going to be hired.
Later, two more ironworkers were hired through the
hiring hall pursuant to orders placed by Cunningham.
Rogers once again came out to the job and spoke to
Cunningham in front of the crew. Rogers said that he
should have control of the hiring on the job and that he
would not tolerate Cunningham's going through the hall
without notifying him or calling him at his house.
On December 10, 1974, Evans instructed Cunningham to
go to the hiring hall and hire one ironworker on open order
and another ironworker, Louis Hall, "by name." Before
Cunningham could go to the hall, Rogers came to the
jobsite. Rogers asked Evans whether Blount was preparing
to hire any ironworkers and Evans told him of the order he
was about to place. Evans told Rogers that he was sending
Cunningham to the hall to personally put in the order.
Rogers told him not to send Cunningham and that he
would take care of it. Shortly thereafter, Cunningham went
to the hiring hall and placed orders for ironworkers with
Business Agent Tom Wagner, who was at the dispatch
window. Wagner asked Cunningham if he (Cunningham)
knew that he was being relieved as job steward. Cunning-
ham replied that he did not. Cunningham asked whether he
could hire the men and Wagner told him that he could not
because Rogers was taking care of the hiring.
On December 11, 1974, Charles Morrison came to the
job. Rogers told Evans that Morrison was replacing
Cunningham as job steward. Rogers also said that when
Evans needed men he should tell Morrison; that Morrison
would answer to walking Steward Burwick; and that
Burwick would report to Rogers. Cunningham, in the
presence of Evans, asked Rogers why he was being
replaced as steward. Rogers replied that Cunningham
wouldn't play ball with him and wouldn't call him at his
home when Blount needed to hire ironworkers.
In mid-January 1975 Rogers came to the jobsite and
spoke to Evans. Rogers gave Evans his home phone
number and told Evans that when he needed men to call
him at his house.13
I find that Respondent replaced Cunningham as steward
because Cunningham insisted on placing orders with the
hiring hall rather than calling Rogers at Rogers' home.
Clearly, Rogers was trying to circumvent the hiring hall
procedure.
13 These findings are based on the testimony of Evans and Cunningham.
Rogers and Momson did not testify.
i4 This and other findings with regard to hires by Binks at Van Nuys are
based on a summary of Binks' hiring records which was introduced in
evidence
D. Backdooring to Binks Manufacturing Company
1. The Van Nuys job
a. Background
Binks Manufacturing Company, herein called Binks, was
at all times material herein a party to a short-form
agreement with Respondent under which the hiring hall
provisions of the contract were applicable.
During 1974 Norm Smith was Binks' superintendent at
its General Motors jobsite in Van Nuys, California. Smith
was responsible for the hiring of ironworkers on that job.
When he needed ironworkers he called the hiring hall on
the telephone and placed orders for them. On several
occasions Smith placed the orders with Respondent's
president and business agent, Les Rogers. On other
occasions he left the orders with a girl at the hiring hall
office. Generally he called in an order the day before the
men were needed. He did not ask for any ironworkers by
name and he simply ordered the number of ironworkers
that he required.
b. M. Keaggy and G. Train
On May 9, 1974, Binks hired M. Keaggy as a foreman
and G. Train as an ironworker.14 As established by the
credible testimony of Smith, Binks obtained its ironworkers
at the Van Nuys job by placing open orders with the hiring
hall shortly before the ironworkers were needed. However,
M. Keaggy and G. Train were not dispatched pursuant to
any call made at the hiring hall. On May 8 and 9, 1974, no
calls for Rinks 15 were announced at the hiring hall during
dispatch hours. This finding as well as other findings
related to what calls were made on particular dates at the
hiring hall are based on the testimony of Waldo F.
Kusterns. Kustems, who was physically present at the hall
on the dates in question kept extensive records, which were
received in evidence, relating to calls that were announced.
Kusterns was a fully credible witness. Where Kusterns'
testimony and records conflict with the records kept by
Respondent, I credit Kusterns.
Respondent's daily dispatch sheet for May 7 and 8, 1974,
shows no dispatches for Binks. Those records for May 9,
1974, show that G. Train, who was number 180 on the out-
of-work list, was dispatched to Binks on that date. There is
no mention on that sheet of M. Keaggy.is M. Keaggy was
not listed on Respondent's out-of-work list for the week
beginning with roll call of May 6, 1974, and he therefore
was not eligible for any dispatch on an open order
pursuant to the hiring hall rules.
The only conclusions that can be drawn from the above
facts are that Binks placed an open order for ironworkers
at the hall, that Respondent did not call or announce that
order during the dispatch hours at the hall, that ironwork-
ers in attendance at the hall therefore never had an
opportunity to bid on those jobs, and that Respondent, in
disregard of its hiring hall rules, selected and dispatched
15 Reference to Binks in this portion of the Decision are keyed to the Van
Nuys job.
16 Respondent's daily dispatch sheet records as well as its records
relating to the out-of-work lists were received into evidence
IRON WORKERS , LOCAL 433
Train and Keaggy (who was not even on the out-of-work
list) to the Binks job. Unlike other similar situations
described below, there was no testimony that, when they
reported for work, Train and Keaggy had dispatch slips
which had been signed by a business agent. However, in
the light of the actions and statements of business agents
set forth above, the fact that Binks placed the order with
Respondent, the fact that Respondent did not announce
the order, and the fact that those employees appeared at
the job shortly after the order should have been an-
nounced, the inference is warranted that Respondent sent
those men to the job. Respondent offered no evidence to
rebut that inference. Keaggy and Train were backdoored
to the Binks job.
As noted above Keaggy was hired by Binks in a
foreman's classification. There was no testimony concern-
ing his duties as foreman. The title in itself does not
establish that he had supervisory duties.17 The applicants
for referral at the hall were all ironworkers. There is no
evidence to establish that a dispatch as a foreman would
involve supervisory duties. In addition the Board has held
that even a refusal to dispatch to a general foreman
position could unlawfully interfere with employee rights. In
United Association of Journeymen & Apprentices of the
Plumbing & Pipe Fitting Industry Local Union No. 137
(Hamel Construction and Equipment Co., Inc.), 207 NLRB
359 (1973), the Board stated:
In this connection, we note also that not only do the
parties hereto consider the job of general foreman to be
within the referral provisions of the contract, but we
may take official notice that this proceeding arises in
the construction industry in which it is well known that
individuals may be employed as rank-and-file workers
on one job and as supervisors on the next. Therefore,
the refusal to refer Sexton might well restrain or coerce
him as an employee on some other construction
project.
The Board went on to hold that the refusal to refer in that
case was one element in a plan that affected other
employees and that a violation could be found for that
reason as well. In the instant case the improper referral of
Keaggy was only one small part of an overall pattern of
conduct that affected numerous employees.
c. J. P. Horan
On May 10, 1974, Binks hired J. P. Horan as an
ironworker after placing an open order for an ironworker
at the hiring hall. From May 8 through 10, 1974, no calls
for Binks were announced at the hall during dispatch
hours. Respondent's daily dispatch sheet for May 1018
showed no dispatch to Binks. Horan was not listed on
Respondent's out-of-work list. As with all the other similar
situations mentioned herein, Respondent made no attempt
to explain • why it failed to announce the call during
dispatch hours after it had received the open call. As no
11 Ironworker Howard Johnson credibly testified that he was foreman on
onejob where his duties consisted of unloading pipe.
18 As indicated above, the sheet for May 9 showed the dispatch of Train
19 Binks also hired ajourneyman apprentice on May 15, 1974 However,
1427
call was announced after Respondent received an open
order and as Horan was not eligible for dispatch because
he was not on the out-of-work list, he was dispatched in
violation of the hiring hall procedure. Respondent back-
doored Horan to the Binks job.
d. S. Hayes
On May 13, 1974, Binks hired S. Hayes in a foreman
classification after placing an open order at the hiring hall.
May 11 and 12, 1974, were Saturday and Sunday, and the
hiring hall was not open. On May 13, 1974, there were no
calls for Binks announced at the hiring hall during dispatch
hours; the daily dispatch sheet showed no dispatches to
Binks; and Hayes was not on the out-of-work list. As no
calls were announced after Respondent received an open
order and as Hayes was not eligible for dispatch because he
was not on the out-of-work list, he was dispatched in
violation of the hiring hall procedure. Respondent back-
doored Hayes to the Binks job.
e. H. Cavinder
On May 15, 1974, Binks hired H. Cavinder in a foreman
category after placing an open order with Respondent. On
May 14 and 15, 1974, there were no calls announced for
Binks at the hiring hall during dispatch hours; the daily
dispatch sheets showed no dispatches to Binks; and H.
Cavinder was not on the out-of-work list.19 As no calls
were announced after Respondent received an open order
and as H. Cavinder was not eligible for dispatch because he
was not on the out-of-work list, he was dispatched in
violation of the hiring hall procedure. Respondent back-
doored H. Cavinder to the Binks job.
f. J. Deavers and M. LaPolla
On June 10, 1974, Binks hired J. Deavers and M. LaPolla
as ironworkers after placing an open order with Respon-
dent. From June 5 through 10, 1974 (June 8 and 9 were
Saturday and Sunday), there were no calls announced for
Binks at the hiring hall during dispatch hours, and the daily
dispatch sheets showed no dispatches to Binks. Deavers
and LaPolla were on the out-of-work list with numbers 132
and 156, respectively. As no calls were announced after
Respondent received an open order, Deavers and LaPolla
were dispatched in violation of the hiring hall procedure.
Respondent backdoored Deavers and LaPolla to the Binks
job.
g. G. Crow
On June 19, 1974, Binks hired G. Crow as an ironworker,
and J. Devine as a welder after placing an open order with
Respondent. The daily dispatch sheet for June 19 showed
that on that day Devine was dispatched under an open
order and Crow was dispatched "by name." Devine was
number 44 and Crow was number 67 on the out-of-work
list. Respondent's business agent, Tom Wagner, was in
the General Counsel does not contend that there were any violations of the
Act relating to apprentices. In this and the other situations below, the order
for and dispatch of apprentices need not be considered
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge of the hiring hall that day. Wagner announced one
open order and one "by name" order for Binks. As is
shown by the daily dispatch sheet, for the "by name" order
he called Crow. Binks had placed an open order for two
men. When Rogers called for Crow "by name," Rogers
circumvented the right of the applicants at the hall to bid
for that job and in so doing he backdoored Crow to the
Binksjob.
h. D. Currie
On June 20, 1974, Binks hired D. Currie as an
ironworker after placing an open order with Respondent.
On June 17 and 18, 1974, there were no calls for Binks
announced during dispatch hours at the hiring hall. The
only calls for Burks announced on June 19 are those
described above. On June 20, 1974, there were no calls
announced for Binks at the hiring hall during dispatch
hours; the daily dispatch sheets showed no dispatches to
Binks; and Currie was not on the out-of-work list. As the
open order was not announced and as Currie was not
eligible for dispatch because he was not on the out-of-work
list, he was dispatched in violation of the hiring hall
procedure. Respondent backdoored Currie to the Binks
job.
i. M. Lucero and T. Moxley
On June 26, 1974, Binks hired M. Lucero, T. Moxley,
and T. O'Connor as ironworkers after placing an open
order with Respondent. The daily dispatch sheets showed
that there were no dispatches to Burks on June 24 or 25,
1976, and that one ironworker, O'Connor (who was
number 14 on the out-of-work list) was dispatched to Binks
on June 26, 1974. There were no calls announced for Binks
at the hiring hall during dispatch hours on June 24 or 25
and one call for an ironworker on June 26, 1974. Lucero
was number 285 on the out-of-work list and Moxley was
not on the list. As the open orders filled by Lucero and
Moxley were not announced, their dispatch was in
violation of the hiring hall procedure. The dispatch of
Moxley, who was not on the out-of-work list was an
additional violation of that procedure. Respondent back-
doored Lucero and Moxley to the Binks job.
j. N. Seiver
On July 12, 1974, Binks hired N. Seiver as an ironworker
after placing an open order with Respondent. From July 9
through July 12, 1974, there were no calls for Binks
announced at the hiring hall during dispatch hours; the
daily dispatch sheets showed no dispatches to Binks; and
Seiver was not on the out-of-work list. As the open order
was not announced and as Seiver was not on the out-of-
work list, he was dispatched in violation of the hiring hall
procedure. Respondent backdoored Seiver to the Binks
job.
k. P. J. Jennings, Sr. and P. J. Jennings, Jr.
On July 16, 1974, Binks hired P. J. Jennings, Sr. and P. J.
Jennings, Jr., as ironworkers after placing an open order
with Respondent. From July 13 through July 16, 1974 (July
13 and 14 were Saturday and Sunday), there were no calls
announced for Bulks at the hiring hall during dispatch
hours. The daily dispatch sheet for June 15 showed no
dispatches to Binks but that record for July 16, 1974,
showed that four employees (Bill Thure, Jerry Thure,
Frank Young, and Don Day) were dispatched to Binks.
Those records showed that either B. Thure or J. Thure was
dispatched "by name." Binks' records show that none of
those employees were hired on that date. Instead, Binks'
records show that Jennings, Sr. and Jr. were hired. Neither
of them were on the out-of-work list and therefore neither
were eligible for dispatch. Respondent backdoored Jen-
nings, Sr., and Jennings, Jr., to the Binks job.
1. J. Thure and W. Thure
On July 17, 1974, Binks hired J. Thure and W. Thure as
ironworkers after placing an open order with Respondent.
The daily dispatch sheet for July 16, 1974, showed that Bill
and Jerry Thure were dispatched to Binks and one of the
dispatches was by name. J. Thure had an out-of-work
number of 135 and W. Thure was not on the list. No calls
were announced for Binks at the hiring hall during
dispatch hours on either July 16 or 17, 1974. Binks made no
"by name" calls on those dates and it therefore appears
that the notation on the daily dispatch sheet for July 16,
1974, relating to the "by name" call was not based on any
"by name" order from Binks. As Binks' open order was not
announced at the hiring hall, the ironworkers at the hall
had no opportunity to bid on it. Respondent backdoored J.
Thure and W. Thure to the Burks job.
m. G. Grove and C. Henry
On July 18, 1974, Binks hired G. Grove and C. Henry as
ironworkers after placing an open order with Respondent.
On July 18, 1974,20 there were no calls announced for
Binks at the hiring hall during dispatch hours; the daily
dispatch sheet showed no dispatches to Binks; and neither
G. Grove nor C. Henry were on the out-of-work list. The
open order was not announced and neither G. Grove nor
C. Henry were eligible for dispatch because they were not
on the out-of-work list. Respondent backdoored G. Grove
and C. Henry to the Binks job.
n. D. Day and F. Young
On July 19, 1974, Binks hired D. Day and F. Young as
ironworkers after placing an open order with Respondent.
On July 19, there were no calls announced for Binks at the
hiring hall during dispatch hours and the daily dispatch
sheet showed no dispatches to Binks. F. Young was on the
out-of-work list with number 217-1/2, and Day was not on
that list. As the open order was not called, D. Day and F.
Young were dispatched in violation of the hiring hall
20 As noted above, there were no calls for Binks announced on the
preceding days Where pnor days are mentioned in preceding sections of the
Decision , they will not be repeated
IRON WORKERS , LOCAL 433 1429
procedure. It was further violated by the dispatch of D.
Day, who was not on the out-of-work list. Respondent
backdoored D. Day and F. Young to the Binks job.
o. L. Conver
On August 26, 1974, Binks hired L. Conver and D.
Stickle as ironworkers after placing an open order with
Respondent. The daily dispatch sheets from August 23
through August 26, 1974 (August 24 and 25 were Saturday
and Sunday), showed no dispatches to Binks. From August
23 through August 25 there were no calls announced for
Binks at the hiring hall during dispatch hours, but on
August 26 one call for Binks was announced at the hiring
hall. That call was answered by D. Stickle who was number
102 on the out-of-work list. There was no call announced
for a second employee for Binks, and Conver's name was
not on the out-of-work list. As the open order filled by
Conver was not announced and as Conver was not on the
out-of-work list, he was dispatched in violation of the
hiring hall procedure. Respondent backdoored Conver to
the Binks job.
2. The South Gate job
a. Background
From June 13, 1974, through January 1975, H. E.
Cavender was general foreman for Binks at the General
Motors jobsite in Southgate, California. Cavender was
responsible for the hiring of ironworkers on that job. When
he needed ironworkers he called the hiring hall, either for a
"by name" order or an open order. Sometimes his clerk
called the hall when an open order was needed. When he
knew of an ironworker who could do the job, he placed a
"by name" order for that person, and he tried to keep
about a 50-50 ratio of "by name" orders and open orders.
He placed his orders the day before the men reported for
work. The findings below with regard to which employees
were called "by name" are based on his testimony, and the
findings with regard to the employees who were actually
hired are based on Binks' records.
with the employer, and the General Counsel does not argue
in its brief that the "by name" dispatches to Binks were
improper. However, there were no open order calls for
Binks announced at the hiring hall and Miller was
therefore dispatched in violation of the hiring hall proce-
dure. Respondent backdoored Miller to the Binks job.
c. W. Aker
On August 12, 1974, Binks hired W. Aker and S. Sanders
as welders and R. Robertson as a foreman after placing a
"by name" order for Robertson and an open order for two
other employees. There were no calls announced for Binks
at the hiring hall during dispatch hours on August 9, 1974
(August 10 and 11 were Saturday and Sunday), but on
August 12, 1974, a call was announced at the hall for
Robertson "by name" and for one welder on an open
order. The daily dispatch sheet for August 12 showed the
dispatch of Robertson "by name" as a pusher and Sanders
as a welder on open order. There was no call announced at
the hall for a third employee. However, Aker, who was
number 290 on the out-of-work list, was dispatched. As the
open order filled by Aker was not called, he was dispatched
in violation of the hiring hall procedure. Respondent
backdoored Aker to the Binks job.
d. F. Romero
On August 26, 1974, Binks hired V. Moss as a welder and
F. Romero as an ironworker after placing a "by name"
order for Moss and an open order for one more employee
with Respondent. From August 23 through August 26,
1974 (August 24 and 25 were Saturday and Sunday), there
were no calls announced for Binks (other than a call for the
Van Nuys job) at the hiring hall during dispatch hours and
the daily dispatch sheets showed no dispatches to Binks.
Romero was on the out-of-work list with the number of
185-1/2. As the open order was not called, Romero was
dispatched in violation of the hiring hall procedure.
Respondent backdoored Romero to the Binks job.
e. J. F. Dunn
b. J. Miller
On July 1, 1974, Binks at its South Gate job,21 hired R.
Goldsmith as a welder, and J . Hannah and J . Miller as
ironworkers after placing orders with Respondent. Gold-
smith and Hannah were hired after Binks placed "by
name" orders for them , while Miller was hired after Binks
placed an open order .22 From June 28 through July 1, 1974
(June 29 and June 30 were Saturday and Sunday) there
were no calls announced for Binks at the hiring hall during
dispatch hours and the daily dispatch sheets showed no
dispatches to Binks. J. Miller was on the June 24 out-of-
work list with a number of 153 but not on the July 1 out-of-
work list. There is no evidence in the record to establish
whether or not the employees called "by name" met the
requirements of the contract for previous work experience
21 All references to Binks in this portion of the Decision are keyed to the
South Gate job
22 Cavender testified that he was not certain who he called "by name,"
but a reading of his testimony in its entirety indicates that he did specifically
On September 4, 1974, Binks hired D. S. Duke and J. F.
Dunn as welders after placing a "by name" order for Duke
and an open order for one other employee with Respon-
dent. From September 2 through September 4, 1974
(September 2 was Labor Day), there were no calls
announced for Binks at the hiring hall during dispatch
hours and the daily dispatch sheets showed no dispatches
to Binks. Dunn was on the out-of-work list with a number
of 201. As the open order filled by Dunn was not called, he
was dispatched in violation of the hiring hall procedure.
Respondent backdoored Dunn to the Binks job.
f. R. Kennedy
On September 9, 1974, Respondent hired R. Kennedy as
a welder and W. Rogers as an ironworker after placing a
name those employees he hired "by name." The only other method of hiring
used by Binks at the South Gate job was an open order and I find that the
hire of those who were not called for "by name" was by open order
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"by name" order for Rogers and an open order for one
other employee . From September 6 through September 9,
1974 (September 7 and 8 were Saturday and Sunday ), there
were no calls announced for Binks at the hiring hall during
dispatch hours and the daily dispatch sheets showed no
dispatches to Binks. Kennedy was on the out-of -work list
with a number of 57. As the open order filled by Kennedy
was not called , he was dispatched in violation of the hiring
hall procedure . Respondent backdoored Kennedy to the
Burks job.
E. Backdooring to Bethlehem Steel Corporation at
its Vernon Mill
1. Background
At the hearing, Respondent amended its answer to deny,
on information and belief, that Bethlehem Steel Corpora-
tion , herein called Bethlehem , was a member of an
association that had agreed to be bound by the terms of the
contract in question. Counsel for Respondent stated on the
record that he believed Bethlehem to be a signatory to the
International agreement . Respondent admitted other alle-
gations in the complaint that alleged that certain employers
were bound by the contract in question because they were
parties to the International agreement . In any event, the
evidence set forth below amply establishes that an
exclusive hiring hall arrangement between the Umon and
Bethlehem existed in practice . In such circumstances there
is no requirement that the arrangement be embodied in a
written contract. See Plumbers Local Union No 17 of the
United Association of Journeymen, Plumbers and Pipefitters
of the United States and Canada, AFL-CIO (FSM Mechani-
cal Contractor, Inc.), 224 NLRB 1262, 1263, In. 6 (1976);
Local Union No. 174, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
Independent (Totem Beverages, Inc.), 226 NLRB 690 (1976).
During 1974 and 1975 Richard Crane was superinten-
dent of erection for Bethlehem at its Vernon mill. The
erection department performs repair work at the mill.
Crane was responsible for all hiring in the erection
department. Some of the work was performed by employ-
ees of Bethlehem who were transferred to the Vernon mill
from other Bethlehem jobsites. All other steelworkers were
obtained through placing orders at the hinng hall. In the
latter part of June 1974, Crane had a meeting with Umon
Business Agent Rogers at the jobsite. Crane told Rogers
how many men would be needed and what type of work
was to be done. Thereafter Crane called the dispatcher at
the union hall and placed both "by name" and open orders
to fill his needs. Rogers appointed Downs as steward and
Downs checked all employees who came on the job to
make sure they had referrals. All of those employees
brought dispatch slips from the Union. None of the
ironworkers hired required special skills except for one,
Broughton, who did welding. The findings with regard to
hiring set forth below are based on the records of
Bethlehem Steel , and the findings with regard to whether
employees were hired "by name" or by open order are
based on the testimony of Crane.
2. P. E. Prince, D. G. Lowther and H. R. Silman
On July 15, 1974, Bethlehem hired nine ironworkers after
placing a "by name" order for five of them (Broughton,
Harmon, Kennedy, Pari, and Price) and an open order for
the other four. The four who were hired after the open
order were Prince, Jacobazzi , Lowther , and Silman.
Kusterns credibly testified and his records show that on
July 11, 1974, Union Business Agent Kenney announced a
call for Bethlehem for two ironworkers by name and one
by open order. In addition he averred that there was the
announcement of a call for one welder for Bethlehem at a
different location . Bethlehem has jobsites at many different
locations and it was not clear from Kusterns' testimony
whether the announcement of a call for two "by name" and
one by open order ironworkers was keyed to the Vernon
mill of some other jobsite. However, Respondent's daily
dispatch sheet for July 11, 1974, is sufficiently parallel to
the testimony of Kusterns to establish that the call was for
the Bethlehem Steel mill . That record indicates that two
employees were dispatched "by name" and one by open
order on Thursday, July 11, 1974, with a reporting time of 7
a.m. Monday. That "Monday" entry coincides with the
Monday, July 15 , 1974, hiring date on Bethlehem Steel's
records. The daily dispatch sheet shows dispatches for
Jacobazzi , Bob Harmon , and Max Price. It does not show
who filled the open order. The out-of-work lists showed
that Prince had number 216, Jacobazzi - 349, and Lowther
- 129. Silman was not on the list.
The General Counsel does not contend in her brief that
the five employees dispatched on a "by name" basis to
Bethlehem Steel were improperly referred. However, there
were open orders for four ironworkers and only one call on
open order was announced during dispatch hours on July
11, 1974. Respondent's daily dispatch sheet for that day
indicates that two of the three applicants dispatched to
Bethlehem Steel were called for "by name ." There is no
means of telling from that record which of the two were
called for by name. As Harmon and Price had been called
for "by name" by Bethlehem Steel , it is reasonable to infer
that they were the "by name" calls listed on the daily
worksheet and that Jacobazzi was the open order. There
were no other calls announced for Bethlehem Steel's
Vernon mill between July 12 and 15, 1974 (July 13 and 14
were Saturday and Sunday), nor does Respondent's daily
dispatch sheet show any referrals to Bethlehem Steel
during that time . There were no calls announced for the
open orders filled by Prince, Lowther, and Silman but they,
as well as all the other applicants who were hired by
Bethlehem Steel , came to the job with dispatch slips.
Dispatch slips are signed by Respondent's business agents.
As the open orders filled by Prince, Lowther, and Silman
were not called, they were dispatched in violation of the
hiring hall procedure. That procedure was also violated
because Silman was dispatched when he was not on the
out-of-work list. Respondent backdoored Prince, Lowther,
and Silman to the Bethlehem Steel job.
3. L. W. Crisp, J. F. Mitchell and W. Sekehk
On July 18, 1974, Bethlehem hired four ironworkers.
Three of them, Crisp, Mitchell, and Sekelik, were hired
IRON WORKERS , LOCAL 433 1431
after Bethlehem placed an open order with Respondent.
There is a question as to the type of order under which the
fourth, D. J. Singleton , was hired . In one part of his
testimony Crane averred that Singleton was hired "by
name" and in another part he averred that it was on open
order . Singleton had come to the job and asked for work.
Crane told Singleton to go to the hall, and that if Singleton
could get a work order he could go to work. Later
Singleton reported back with a dispatch slip and began
work . There is no evidence to indicate whether or not
Singleton took Crane's remark to mean that Crane wanted
him as an individual rather than on an open order, nor is
there evidence to indicate whether or not Singleton told the
dispatcher that Crane had asked for him by name. Under
these circumstances I do not believe that the General
Counsel has established that Singleton was hired after an
open order or that Singleton was improperly dispatched.
However, there were three open orders for ironworkers
and between July 15 and 18 , 1974, there were no calls
announced for Bethlehem during dispatch hours at the
hiring hall . Respondent's daily dispatch sheets for July 12
through July 17, 1974, showed no dispatches to Bethlehem.
The daily dispatch sheet for July 18, 1974, showed that
John Mitchell , Don Singleton , and Bill Crisp were
dispatched to Bethlehem.
Mitchell ( 115 on the out-of-work list), Crisp (who was
not on the out-of-work list), and Sekelik (172 on the out-of-
work list) were dispatched to Bethlehem to fill the open
order without that order having been announced at the hall
and therefore without the applicants at the hall having had
a chance to bid on it . In addition , Crisp was not eligible for
dispatch because he was not on the out-of-work list.
Respondent backdoored Crisp, Mitchell , and Sekelik to the
Bethlehem Job.
4. R. F. Torrence
On July 21, 1974 Bethlehem hired Robertson and
Winchester as ironworkers after placing "by name" orders
for them . On the same day Bethlehem hired R. F. Torrence
after placing an open order for an ironworker . From July
19 through July 21, 1974 (July 20 and 21 were Saturday
and Sunday, and apparently these three men were hired on
a Sunday), there were no calls announced for Bethlehem at
the hiring hall during dispatch hours; the daily dispatch
sheet showed no dispatches to Bethlehem Steel; and
Torrence was not on the out -of-work list . As the open order
was not called , and as Torrence was not eligible for
dispatch because he was not on the out-of-work list, his
dispatch was in violation of the hiring hall procedure.
Respondent backdoored Torrence to the Bethlehem job.
F. Backdooring to RPM Erectors, Inc.
1. Background
RPM Erectors , Inc., herein called RPM, is signatory to a
collective-bargaining agreement with the International
Association of Bridge , Structural and Ornamental Iron
Workers and, pursuant to that agreement , RPM has agreed
to be bound by the Union 's contract which contains the
hiring hall provisions.
During 1974 and 1975 RPM was involved in the building
of the Long Beach , California, city hall . The work began
and stopped on a number of dates. Donald McEuen was
general foreman for RPM at that jobsite since August 1974.
He was responsible for the hiring of ironworkers. If he
knew an individual to be a good worker or if his foreman
told him that someone was particularly good at the job,
McEuen placed a "by name" order for that individual at
the hiring hall. On occasions Respondent's Business Agents
Tom Wagner and Joe Ward appeared on the job and
McEuen left his order for employees with them . In addition
to the "by name" hires, McEuen placed open orders for
ironworkers with the hall . When he called in an open order
he asked for journeymen ironworkers capable of doing the
work needed . He contacted the Union I or 2 days before
he actually hired employees.
The findings below relating to the hires by RPM are
keyed to RPM's records , and the findings related to "by
name" calls and open order calls are based on the
testimony of McEuen . McEuen credibly testified that none
of the employees he hired after a "by name " call had
worked for RPM during the year immediately preceding
their hire. No one from the Union ever asked McEuen
whether the employees he had called for "by name" had
worked for RPM during the preceding year.
2. E. Suval
On August 20, 1974 , RPM hired E. Suval as a welder
after placing an open order with Respondent . From August
16 through August 19, 1974 (August 17 and 18 were
Saturday and Sunday), there were no calls announced for
RPM at the hiring hall during dispatch hours; the daily
dispatch sheets showed no dispatches to RPM; and Suval
was not on the out-of-work list . As the open order was not
called and as Suval was not on the out-of-work list, his
dispatch violated the hiring hall procedure . Respondent
backdoored Suval to the RPM job.
3. W. L. Rogers
On November 14, 1974, RPM hired W. L. Rogers as a
journeyman ironworker after placing an open order with
Respondent . From November 12 through November 14,
1974, there were no calls announced for RPM at the hiring
hall during dispatch hours; the daily dispatch sheets
showed no dispatches to RPM ; and Rogers was not on the
out-of-work list. As the open order was not called and as
Rogers was not on the out-of-work list his dispatch violated
the hiring hall procedure . Respondent backdoored Rogers
to the RPM job.
4. S. R. Hudson
On November 18, 1974, RPM hired S. R. Hudson and R.
R. Mubi as journeymen ironworkers after placing open
orders with Respondent . Though RPM had placed open
orders, on November 15, 1974, the business agent in charge
of the hiring hall announced a call at the hall for one
finisher by name , Ron Hudson , and for one open order for
RPM. The open order was filled by Mubi. Hudson was
number 152 on the out-of-work list . Respondent 's daily
dispatch sheet for November 15, 1974, showed that
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hudson was called "by name" and Mubi filled the open
order. As RPM did not request Hudson "by name," that
call should have been open for bidding, but Respondent
filled the order with Hudson "by name" on its own
authority. Respondent backdoored Hudson to the RPM
job.
5. D. Mira
On November 20, 1974, RPM hired Lopez and Mira as
journeymen ironworkers after placing with Respondent a
"by name" call for Lopez and an open order for one other
employee. From November 16 through November 19
(Nov. 16 and 17 were Saturday and Sunday), there were no
calls announced for RPM at the hiring hall during dispatch
hours and the daily dispatch sheet showed no dispatches to
RPM. On November 20, 1974, two "by name" calls were
announced for RPM for ironworker finishers. The calls
were for Lopez, who was number 80 on the out-of-work list
and Mira, who was number 170 on the out-of-work list.
The daily dispatch sheet for November 20, 1974, shows
that Lopez and Mira were dispatched to RPM "by name."
As Mira was dispatched "by name" to fill an open order,
the hiring hall bidding procedures were circumvented.
Respondent backdoored Mira to the RPM job.
The General Counsel alleges in her brief that Dietz,
Glenn, Hardin, and Kosut were improperly dispatched to
RPM from about March 28 through April 28, 1975.23
Kusterns did not testify concerning what occurred at the
hiring hall on those dates. Raymond Mubi averred that he
made notes after visiting the job and after being in the hall.
However, his notes are so confused and his recollection of
dates was so vague that there is considerable ambiguity
with regard to exactly what happened at the hall, and what
assumptions he made when he saw employees on the job. I
am unprepared to base a finding that Respondent back-
doored employees to that job on his testimony.
G. Backdooring to C. F. Braun and Co.
1. Background
C. F. Braun and Co., herein called Braun, has at all
times material herein been a party to an International
agreement with the International Association of Bridge,
Structural and Ornamental Iron Workers.24 Prior to
December 31, 1974, Braun was also a member of AGC. In
addition, the evidence set forth below establishes that at all
times material herein an exclusive hiring hall arrangement
between the Union and Braun existed in practice.
In 1964 and 1965 Braun was involved in construction
work at the Standard Oil refinery in El Segundo, Califor-
nia. Braun's office manager, Constantine Lekas, was
responsible for the hiring of ironworkers on that job.
Braun's supervisors told Lekas of their employee needs and
Lekas called the Union's hiring hall for ironworkers. He
usually called Business Agent Wagner at the hall. On
occasions when Wagner was on a job, Lekas placed orders
23 J M Lopez, J Renteria, R Marrs, E Coulter, H Coulter, and E
Saunders were hired after RPM placed orders for them "by name "
24 That agreement provides, inter aha
G Hiring of Men The employer agrees to employ Journeymen in any
with him directly. Some of the orders were "by name" and
others on open order. When employees reported for work
they brought dispatch slips from the Union with them. The
findings below relating to the call date, hire date, and type
of order, as well as the employees hired, are based on the
records of Braun.
2. J. E. Haile
On October 16, 1974, Braun placed an open order for an
ironworker with Respondent and on October 17 Braun
lured J. E. Haile. Haile as well as all other hires brought
dispatch slips from the Union. On October 16 and 17 there
were no calls announced for Braun at the hiring hall during
dispatch hours and the daily dispatch sheets showed no
dispatch to Braun. Haile was on the out-of-work list with
number 100. Braun placed an open order, there was no call
announced pursuant to that order, and Haile was sent to
the job with a dispatch slip. Respondent backdoored Haile
to the Braun job.
3. R. W. Shepard
On October 22, 1974, Braun placed an open order with
Respondent for three employees in ironworker or welder
classifications. In addition, a fourth order was placed for a
welder but that welder did not report for work and Braun's
records do not show whether the order was "by name" or
not. On October 23 Braun hired Brady, Seifert, and Finley.
Also on October 23, Braun placed four open orders for
employees in ironworker classifications. On October 24,
Braun hired Demetz, Shepard, Aduddell, and Whalin.
There were no calls announced at the hiring hall during
dispatch hours on October 22, 1974, but on October 23 a
call was announced for Braun for two certified welders and
four ironworkers. It thus appears that the Braun open
orders were filled by seven employees and only six open
orders were announced at the hall. The daily dispatch sheet
for October 23, 1974, showed two separate dispatches to
Braun. The first showed the dispatch of J. Seifert and L.
Finley as welders on open order. The second showed the
dispatch of Aduddell, Demetz, and Whahn as ironworkers
on open order and Bob Shepard "by name." Brady had an
out-of-work number of 177-1/4, which was much higher
than the other applicants who were dispatched. However,
that in itself is insufficient to establish that Brady was
backdoored. Though Braun made no "by name" orders on
the dates in question, Respondent's daily dispatch sheet
shows that Shepard was dispatched "by name." Respon-
dent backdoored Shepard to the Braun job.
4. E. Suval and C. L. Edwards
On October 29, 1974, Braun placed an open order with
Respondent for four employees in ironworker and welder
classifications. On October 30 Braun hired Suval, Edwards,
Dean, and Salazar. There were no calls announced at the
hiring hall during dispatch hours on October 29, 1974, but
territory where work is being performed or to be performed in
accordance with the Referral plan in force and effect in the jurisdiction
of the Local Union where such work is being performed .. Any
referral plan . other than the Referral plan annexed hereto and
operated on a local level. shall apply in such local area.
IRON WORKERS , LOCAL 433 1433
on October 30 there were two calls announced for Braun,
one for an ironworker and one for a welder. Respondent's
daily dispatch sheet for October 30, 1974, showed that
Dean and Salazar were dispatched to Braun. It thus
appears that the two open orders that were announced at
the hall were filled by those men. The other two open
orders, which were filled by E. Suval (who was not on the
out-of-work list) and Edwards (who was number 236 on
that list), were not announced at the hiring hall. As the
open orders filled by Suval and Edwards were not called,
their dispatch was in violation of the hiring hall procedure.
Respondent backdoored Suval and Edwards to the Braun
job.
5. J. McBee
On November 1, 1974, Braun placed an open order with
Respondent for one ironworker and on November 4 Braun
hired J. McBee. On November 1, 1974, there was only one
call announced at the hiring hall for Braun. That call was
"by name" for McBee, who was number 10 on the out-of-
work list. The daily dispatch sheet for November 1 shows
that McBee was dispatched to Braun "by name." Though
Braun had placed an open order, Respondent called
McBee "by name" and, therefore, denied applicants the
opportunity to bid on that job. Respondent backdoored
McBee to the Braun job.
6. J. F. Dunn, J. Pompa, and L. C. Gleason
On November 5, 1974, Braun placed open orders for one
foreman and for four other employees in ironworker or
welder classifications. On November 6, Braun hired J. F.
Dunn, J. Pompa, S. Pittman, R. L. Thure, and L. C.
Gleason (foreman). On November 5, 1974, a call was
announced for Braun at the hall during dispatch hours for
one connector (ironworker), and one welder. The daily
dispatch sheet for November 5 showed that R. Thure and
S. Pittman were dispatched on open order and that Dunn
(who was number 117 on the out-of-work list) was
dispatched "by name." On November 6, there were no calls
announced for Braun and the daily dispatch sheet showed
no dispatches to Braun. Braun had ordered five employees
on open order. Two of those open orders were filled by R.
L. Thure and S. Pittman after two jobs had been
announced at the hall. The remaining three openings were
not announced. They were filled through the dispatch of
Gleason (number 53 on the out-of-work list), Pompa (who
was not on the out-of-work list), and J. F. Dunn (who was
number 117 on the out-of-work list). Dunn was called "by
name" even though Braun had placed an open order. As
Dunn was called "by name" to fill an open order, as
Pompa was dispatched when he was not on the out-of-work
list, and as the open orders filled by Dunn, Pompa, and
Gleason were not announced at the hiring hall, their
dispatch was in violation of the hiring hall procedure.
Respondent backdoored Dunn, Pompa, and Gleason to
the Braun job.
7. R. A. Wolf, F. Romero, A. Puckett, D. J.
Singleton, F. P. Bergsma, and M. Carroll
On November 8, 1974, Braun placed an open order with
Respondent for six employees in ironworker and welder
classifications. On November 11, 1974, Braun hired Wolf,
Romero, Puckett, Singleton, Bergsma, and Carroll. As with
all of Braun's new hires, these employees had dispatch slips
from Respondent. From November 8 through November
11, 1974, there were no calls announced for Braun at the
hiring hall during dispatch hours and the daily dispatch
sheets showed no dispatches to Braun. Romero was not on
the out-of-work list and the other applicants all had high
numbers (Wolf 112, Puckett 261, Bergsma 136-1/2,
Singleton 213, and Carroll 61). As there was no call on the
open orders and as Romero was not on the out-of-work
list, the dispatches violated the hiring hall procedure.
Respondent backdoored all six of those employees to
Braun.
8. L. J. Singleton and R. A. Denk
On December 3, 1974, Braun placed an open order with
Respondent for six workers (five in ironworker classifica-
tions and one foreman). On December 4, 1974, Braun hired
six employees including L. J. Singleton and R. A. Denk
(foreman). There was no testimony concerning what
occurred at the hiring hall on December 3 or December 4,
1974, but the daily dispatch sheet for December 4, 1974,
showed that all of the people hired had been dispatched
from the hall. That record also showed that Bob Denk and
L. J. Singleton were dispatched "by name." Neither of
those two employees was on the out-of-work list. Respon-
dent circumvented the hiring hall procedure both by filling
an open order with a "by name" call and by dispatching
employees who were not on the out-of-work list. Respon-
dent backdoored Singleton and Denk to the Braun job.
9. D. E. Ferns, J. W. Peters, J. A. Heath, W. O.
Wagner, V. C. Moss, and K. A. Engberg
On December 5, 1974, Braun placed open orders with
Respondent for eight ironworkers. On December 6, Braun
hired Bridgeman, Ferris, Peters, Heath, Wagner, Moss, and
Engberg. There was no testimony concerning what oc-
curred at the hiring hall on December 5 or 6, 1974, but the
daily dispatch sheet for December 5 showed that Bridge-
man and Walsh were dispatched to Braun on open order,
and that Peterson and Vern Moos [sic] were dispatched
"by name." There is no record of any other dispatches on
that date. It appears that two of the open orders were filled
by Bridgeman and Walsh. It also appears that the "Pete
Peterson" and "Vern Moos" listed in the daily dispatch
sheet are misspellings for Peters and Moss, who were hired
by Braun. The daily dispatch sheet shows that they were
dispatched "by name," but Braun had placed an open
order. In addition neither Peters nor Moss were on the out-
of-work list. The filling of open orders with "by name"
calls and the dispatch of applicants who were not on the
out-of-work list, violated the hiring hall procedure. Re-
spondent backdoored Peters and Moss to the Braun job.
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Two of the other employees who were dispatched by
Respondent and hired by Braun were not on the out-of-
work list . They were Fems and Engberg . Respondent
backdoored Fems and Engberg to the Braun job.
Heath and Wagner were also dispatched by Respondent
and hired by Braun. Heath was 186 and Wagner was 230
on the out-of-work list. The high numbers alone are not
sufficient to establish that those two employees were
backdoored . However , those high numbers must be viewed
in connection with the fact that the daily dispatch sheet in
question did not show the dispatch of those two employees.
An inference is warranted that Heath and Engberg were
not dispatched through the hiring hall 's normal procedure.
Respondent backdoored Heath and Wagner to the Braun
job.
10. L. F. LaLonde, D. J. Dryden, and B. J.
Nichols
On December 6, 1974, Braun placed open orders with
Respondent for five employees in ironworkers classifica-
tions and, in addition, for one foreman. On December 10,
1974, Braun hired employees, who had been dispatched by
Respondent, to fill those positions. There was no testimony
concerning what occurred at the hiring hall. Three of the
positions were filled by L. F. LaLonde, D. J. Dryden, and
B. J. Nichols (foreman). The daily dispatch sheet for
December 9 showed the dispatch of LaLonde but did not
show a dispatch for Dryden or Nichols. None of the three
were on the out-of-work list. As they were not on that list,
Respondent circumvented the hiring hall procedure when
it dispatched them to work. Respondent backdoored
LaLonde, Dryden, and Nichols to the Braun job.
11. V. L. Tyson
On December 10, 1974, Braun placed with Respondent
one "by name" order for D. J. Jewell and one open order
for a welder. On December 11, Braun hired Jewell and V.
L. Tyson. There was no testimony concerning what
occurred at the hiring hall on December 10 and 11, and the
daily dispatch sheets showed no dispatches to Braun on
those dates. As Tyson was not on the out-of-work list, he
was not eligible for dispatch on an open order. Respondent
backdoored Tyson to the Braun job.
12. P. Salas
On January 20, 1975, Braun placed with Respondent a
"by name" order for R. E. Austrum and an open order for
an ironworker. On January 21, 1975, Braun hired Austrum
and on January 22 Braun hired P. Salas (whose number on
the out-of-work list was 77). As with all other ironworkers
hired by Braun, Salas had a dispatch slip and therefore had
been referred by Respondent. From January 20 through
January 22, 1975, there were no calls announced for Braun
at the hiring hall during dispatch hours, and the daily
dispatch sheets showed no dispatches to Braun. No other
applicants had a chance to bid on that open order because
Salas was dispatched without any announcement of that
25 In addition Braun placed an open order for one more employee, but
Braun's records were blank as to the filling of that order
order at the hall. Respondent backdoored Salas to the
Braun fob.
13. J. J. Gasper
On February 19, 1975, Braun placed with Respondent
"by name" orders for Miller and Morris, and an open
order for one additional ironworker.25 On February 20
Braun hired Miller and Morris on the "by name" order and
hired J. J. Gasper (number 196-1/2 on the out-of-work list)
to fill the open order. On February 19 and 20, 1975, there
were no calls announced for Braun at the hiring hall during
dispatch hours and the daily dispatch sheets showed no
dispatches to Braun. As the open order filled by Gasper
was not called, his dispatch violated the hiring hall
procedure. Respondent backdoored Gasper to the Braun
job.
14. L. E. Haney
On March 11, 1975, Braun placed with Respondent an
open order for six ironworkers.26 On March 13, 1975,
Braun hired Cline, Farney, Hayse, Johnson, Haney, and
Roy. On March 11 and 13, 1975, there were no calls
announced for Braun at the hiring hall during dispatch
hours, but on March 12 there were open orders announced
for Braun for five welders. The daily dispatch sheet does
not show the dispatch of L. E. Haney but does show the
dispatch of the other five employees who were hired by
Braun. In addition that record shows one apprentice and
one callback, and lists the names of Wake, Bridgeman, and
Haile, none of whom were hired by Braun except for Wake
who was an apprentice. Braun's open order was for six
ironworkers but there were only five open orders an-
nounced at the hall. The five that were announced were
filled by Cline, Farney, Hayse, Johnson, and Roy. The
sixth open order was filled by L. E. Haney, who was
number 250 on the out-of-work list, even though that order
was not announced at the hall. Respondent backdoored
Haney to the Braun job.
H. Backdooring to Michel and Pfeffer
1. Background
The complaint alleges that Michel and Pfeffer, herein
called M and P , was bound by the Union 's contract
through membership in an association. Respondent's
answer denies that allegation of the complaint. However,
the evidence set forth below amply establishes that M and
P is an employer engaged in the construction industry and
that an exclusive hiring hall arrangement between the
Union and M and P existed in practice.
For 10 months beginning about June 6, 1975, Allen
Wilson was general foreman for M and P at the Good
Samaritan Hospital jobsite in Los Angeles . As general
foreman , Wilson hired ironworkers for the job . He placed
both "by name" orders and open orders with the hiring hall
to fill his needs. His practice was to call the hall and to
place the order with the business agent in charge of the
26 In addition Braun placed a seventh open order for an ironworker, but
Braun's records show that that seventh order was not filled
IRON WORKERS , LOCAL 433
hall. Except for one employee, Wilson did not know
whether the people hired had worked for M and P
previously. He testified that he did not think that all of the
employees hired had dispatch slips. Wilson placed orders
for the employees he needed a few days before they were
hired. The findings set forth below relating to the
employees hired and the types of orders placed with
Respondent are based on the testimony of Wilson and on
M and P records.
2. F. Burkhardt
On November 4, 1974, M and P hired F. Burkhardt as a
finisher after placing an open order with Respondent. On
November 4, a "by name" order for F. Burkhardt was
announced for M and P at the hiring hall. The daily
dispatch sheet for that date showed that Burkhardt, who
was listed on that sheet as number 2, was dispatched to M
and P. Burkhardt was 152 on the out-of-work list.
Burkhardt was called "by name" at the hall to fill an open
order and therefore the other applicants at the hall had no
opportunity to bid on that job. Respondent backdoored
Burkhardt to the M and P job.
3. R. R. Gayeska and K. A. Waigand
On December 13, 1974, M and P hired R. R. Gayeska
and K. A. Waigand as finishers after placing an open order
with Respondent. There was no testimony concerning what
occurred at the hiring hall from December 10 through
December 13. The daily dispatch sheets for those dates
showed no dispatches for M and P. However, neither
Gayeska nor Waigand were on the out-of-work list and,
therefore, they were not eligible for dispatch. Respondent
backdoored Gayeska and Waigand to the M and P job.
4. J. J. Ferguson
On March 21, 1975, M and P hired J. J. Ferguson and E.
D. Hoyt as ironworkers after placing with Respondent a
"by name" order for Hoyt and an open order for one
additional ironworker. On March 19 and 20, 1975, there
were no calls announced at the hiring hall during dispatch
hours for M and P, and the daily dispatch sheets showed
no dispatches to M and P. On March 21, open orders were
announced for Braun for two finishers. That call was filled
by Zink and Thure. However, the daily dispatch sheet
showed that the reporting time for that job was Monday,
March 24, 1975, and M and P's records show that those
two employees were hired on that date. The M and P jobs
that were filled on March 21, 1975, by Ferguson and Hoyt
were not announced at the hiring hall. Hoyt had been
called "by name," but Ferguson (who was number 111 on
the out-of-work list) filled an open order that was not
announced at the hall. Respondent backdoored Ferguson
to the M and P job.
1435
I. Backdooring to Blount Brothers
1. Background
The complaint alleges that Blount Brothers, herein called
Blount, is bound by the Union's contract through member-
ship in AGC. Respondent denies that allegation. However,
the evidence set forth below establishes that an exclusive
hiring hall arrangement between the Union and Blount
existed in practice.
From April 1974 through April 1975, Blount was the
general contractor in charge of a bulk mailing center job in
Bell, California. Roger Evans was a foreman through
December 1974, and a general foreman from January 1975,
on that job for Blount. Evans, together with Blount's
Superintendent Beesing, hired ironworkers for the job.
They filled their needs by instructing the union steward on
the job to contact the hiring hall for men. Some orders were
"by name" and others were on open order. When the job
began, a number of ironworkers were transferred from
other Blount jobs. Orders were placed with Respondent a
few days before the employees were hired. The findings
below with regard to hires and the type of orders that were
placed are based on the testimony of Evans and Blount
records.
2. C. H. Morrison
On December 10, 1974, Evans instructed Union Steward
Cunningham to go to the hiring hall and hire one
ironworker on open order and one ironworker, Louis Hall,
by name. Before Cunningham had a chance to go to the
hall, Union Business Agent Les Rogers came to the jobsite
and asked Evans about Blount's hiring needs. Evans told
him of the two orders he intended to make and Rogers said
that he would take care of it. Hall, who had been requested
by name, was hired the same day. C. H. Morrison was
hired on the following day, December 11, 1974. The daily
dispatch sheet showed that Morrison was dispatched as
"change of steward," rather than a routine open order can.
On December 11, Rogers notified Evans that Morrison was
replacing Cunningham as steward. As is set forth in detail
in section C,4 of this Decision, Rogers replaced Cunning-
ham with Morrison as steward because Cunningham
consistently refused to assist Rogers in backdooring
employees to Blount. The Union may have had the right to
appoint or replace stewards. However, it could not lawfully
circumvent the hiring hall procedures by filling an open
order with an appointed steward where that appointment
was intended to assist the Union in backdooring other
employees. Respondent backdoored Morrison to the
Blount job.
3. H. H. Beddingfield
On December 12, 1974, Blount hired H. H. Beddingfield
as an ironworker after placing an open order with
Respondent.27 There was no testimony concerning what
occurred at the hiring hall on December 12, but the daily
dispatch sheet showed that one welder, H. Beddingfield,
27 Wilson credibly testified that the only "by name" orders that were
placed were for Teske and Carbagal.
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was dispatched to Blount . Beddmgfield was not on the out-
of-work list and, therefore , was not eligible for dispatch.
Respondent backdoored Beddingfield to the Blount job.
4. G. Usselman
On January 27, 1975 , Blount hired R. L. Lord and G.
Usselman as ironworkers after placing open orders with
Respondent . On January 24, 1975 , calls for Blount were
announced at the hiring hall for one ironworker "by name"
and one on open order. The daily dispatch sheet for that
date showed that G . Usselman (who was number 235 on
the out-of-work list) was dispatched "by name" and that R.
Lord filled the open order . The open order was filled by a
"by name" call at the hiring hall. Respondent backdoored
Usselman to the Blountjob.
J. Backdooring to Nemco, Inc., Star D Iron, and
Bovee & Crail Construction Co.
1. Background
Nemco , Inc. (formerly Nichols Engineering & Materials
Co.) is a signatory to a collective-bargaining agreement
with the International Association of Bridge, Structural
and Ornamental Iron Workers , pursuant to which it has
agreed to be bound by the contract with Respondent. Star
D Iron , herein called Star, and Bovee & Crail Construction
Co., herein called Bovee, are parties to short-form
agreements with the Union . All three use Respondent's
hiring hall.
K. Recapitulation of Individuals Backdoored to Jobs
(all dates in 1974 unless otherwise specified)
Binks (Van Nuys)
1. M. Keaggy
2. G. Train
3. J. P. Horan
4. S. Hayes
5. H. Cavinder
6. J. Deavers
7. M. LaPolla
8. G. Crow
9. D. Curve
10. M. Lucero
11. T. Moxley
12. N. Seiver
13. P. J. Jennings, Sr.
14. P. J. Jennings, Jr.
15. J. Thure
16. W. Thure
17. G. Grove
18. C. Henry
19. D. Day
20. F. Young
21. L. Conver
Binks (South Gate)
22. J. Miller
23. W. Aker
24. F. Romero
25. J. F. Dunn
26. R. Kennedy
2. T. O'Connor
Thomas O'Connor was a union steward working for
Binks through August 23 , 1974. On August 26, 1974, he
called Union Business Agent Les Rogers on the telephone.
Rogers asked him whether he wanted a job with Nemco at
the Pacific Design Center. He replied that he did.
O'Connor met with Rogers at a restaurant where Rogers
gave O'Connor a referral to the Nemco job as a welder. By
circumventing the hiring hall procedure Respondent
backdoored O'Connor to the Nemco job.
3. G. Sims
About 3:30 p.m. on September 2, 1974, in the rear office
room of the union hall, Gilbert C. Suns had a conversation
with Union Business Agent Tom Wagner. Sims told
Wagner that he needed a job and Wagner asked whether
Sims wanted to go to work the next day. When Sims replied
in the affirmative, Wagner wrote Sims a work order for the
Star job. Sims reported for work the following day.
Respondent backdoored Sims to the Star job.
By October 13, 1974, Sims was again out of work. About
10 p.m. on October 13, Union Business Agent Joe Ward
called Sims at Sims' home. Ward told him to report the
next day to Bovee at the Orange County water desalting
plant. Sims began work for Bovee on October 14, 1974.
Respondent backdoored Sims to the Boveejob.
Bethlehem
27. P. E. Price
28. D. G. Lowther
29. H. R. Silman
30. L. W. Crisp
31. J. F. Mitchell
32. W. Sekelik
33. R. F. Torrence
RPM
34. E. Suval
35. W. L . Rogers
36. S. R . Hudson
37. D. Mira
C F Braun
38. J. E. Haile
39. R. W. Shepard
40. E. Suval
41. C. L. Edwards
42. J. McBee
43. J. F. Dunn
44. J. Pompa
45. L. C. Gleason
46. R. A. Wolf
47. F. Romero
48. A. Puckett
49. D. J . Singleton
50. F. P . Bergsma
Date job began
May 9
May 9
May 10
May 13
May 15
June 10
June 10
June 19
June 20
June 26
June 26
July 12
July 16
July 16
July 17
July 17
July 18
July 18
July 19
July 19
August 26
July 1
August 12
August 26
September 4
September 9
July 15
July 15
July 15
July 18
July 18
July 18
July 21
August 20
November 14
November 18
November 20
October 17
October 24
October 30
October 30
November 4
November 6
November 6
November 6
November 11
November 11
November 11
November 11
November 11
IRON WORKERS , LOCAL 433 1437
51. M. Carroll
52. L. J. Singleton
53. R. A. Denk
54. D. E. Ferris
55. J. W. Peters
56. J. A. Heath
57. W. O . Wagner
58. V. C. Moss
59. K. A . Engberg
60. L. F . LaLonde
61. D. J. Dryden
62. B. J . Nichols
63. V. L. Tyson
64. P. Salas
65. J. J . Gasper
66. L. E. Haney
Michel and Pfeffer
67. F. Burkhardt
68. R. R . Gayeska
69. K. A . Waigand
70. J. J . Ferguson
Blount
71. C. H. Morrison
72. H. H. Beddingfield
73. G. Usselman
Nemco
74. T. O'Connor
Star D
75. G. Sims
Bovee
76. G. Sims
November 11
December 4
December 4
December 6
December 6
December 6
December 6
December 6
December 6
December 10
December 10
December 10
December 11
Jan. 22, 1975
Feb. 20, 1975
March 13, 1975
November 4
December 13
December 13
March 21, 1975
December 11
December 12
January 27, 1975
August 26
September 3
October 14
who were not eligible for dispatch because they were not
on the out-of-work list. In other situations, Respondent
filled open orders by announcing calls "by name," thus
preventing applicants on the out-of-work list from bidding
on those jobs. In other situations, Respondent dispatched
employees after receiving open orders without announcing
those orders at the hall, thus completely bypassing the
entire hiring hall procedure. Respondent dispatched
employees by giving them referral slips at places outside of
the hiring hall, without notifying applicants at the hiring
hall of the availability of those jobs. The instances of
backdooring were not isolated and, as indicated by the
statements and actions of the business agents as is set forth
above, were not keyed to particular emergency situations.
They were so massive in scale as to substantially under-
mine the hiring hall procedure and to substitute the
business agents' clandestine desires for the objective
criteria set forth in the contractor
Respondent's business agents were quite open with
regard to their practice of backdooring employees and
some of them engaged in threats and violent activity to
protect that practice. In early August 1974 Business Agent
Ward acknowledged to Johnson that he (Ward) was
backdooring employees when he said to Johnson, "you
found out I was going to backdoor the job, didn't you?" On
January 26, 1976, Ward told a number of employees, "In
no way will I send anybody back to a job that's suing the
Union." On September 25, 1975, Respondent's president
and business agent, Rogers, violently assaulted Business
Agent Kenney because Kenney had dispatched two men in
Rogers' territory. Kenney was hospitalized with serious
injuries. On December 11, 1974, Rogers replaced Cunning-
ham with Morrison as steward on the Blount job because
Cunningham refused to help Rogers in circumventing the
hiring hall procedure. On February 13, 1975, when Zink
questioned Business Agent Ward about a referral that Zink
thought improper, Ward threatened to pound Zink's head
in the pavement. On February 19, 1975, when Sims spoke
about Respondent's backdooring of employees, Business
Agent Ward assaulted Sims and pushed him to the floor.
Sims was seriously injured. On March 24, 1976, Respon-
dent's executive board member Duke and two other
individuals at the hall threatened to injure or kill Sims.
Duke said that they had to get rid of all the s-o-b's and the
best thing to do would be to shoot Sims and the rest of the
NLRB witnesses. Respondent's Business Agent Wagner
listened to the threats with a smile on his face and said
nothing.
Considering the statements and actions of Respondent's
business agents, together with the 76 specific incidents of
backdooring documented by the General Counsel, it is
apparent that Respondent's business agents divided Re-
spondent's jurisdiction into fiefdoms from which they
dispensed patronage. Some of the business agents engaged
in violence and threats of violence to enforce their practice
of backdooring employees. The actions of the business
contract criteria for "by name" calls However, the General Counsel's brief
does not name any of those employees in its list of those who were
improperly referred. There is no testimony that Respondent knew that those
employees were ineligible for dispatch, nor is there any evidence that similar
dispatches were made to other employers.
L. Analysis and Conclusions
Respondent has a collective-bargaining contract with a
number of associations and employers in the construction
industry. By the terms of that contract, Respondent has
undertaken to dispatch employees in various ironworker
classifications for employment with employers. The proce-
dures to be followed in such dispatches are set forth in
detail in the contract. Pursuant to established practice, the
Union has undertaken to apply the hiring hall provisions to
various other employers who are not signatories to the
contract.
The General Counsel has established by a preponder-
ance of the credible evidence that Respondent dispatched
76 individuals to various jobs in complete and utter
disregard of the contractual hiring hall procedure 28 In all
of those situations, the employers had placed orders with
the hiring hall for employees and Respondent backdoored
the employees by circumventing the hiring hall procedures.
In some situations, Respondent dispatched individuals
21 The names of those individuals are set forth in section K of this
Decision
29 RPM hired Lopez, Rentena, Marrs, E Coulter, H Counter, and
Saunders , after placing orders with Respondent for those employees "by
name ." None of those employees had worked for RPM during the year
immediately preceding their hire and therefore they did not meet the
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agents were such as to give applicants for employment a
reasonable basis for believing that access to employment
depended on securing the good will of the business agents
rather than on the objective criteria of the hiring hall.
The complaint does not allege that the hiring hall
provisions set forth in the contract are illegal . Indeed, the
same or similar hiring hall provisions have been found by
the Board to be lawful. International Association of Bridge,
Structural and Ornamental Iron Workers, Local 118, AFL-
CIO (Bostrom-Bergen), 219 NLRB 467 (1975). The fact that
the very existence of the hiring hall encourages union
membership does not make the hiring hall invalid. As the
United States Supreme Court held in Local 357, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America v. N.L.R.B., 365 U.S. 667, 675-676
(1961):
The truth is that the union is a service agency that
probably encourages membership whenever it does its
job well. But, as we said in Radio Officers v. Labor
Board, supra [347 U.S. 171, the only encouragement or
discouragement of union membership banned by the
Act is that which is "accomplished by discrimination."
In conformity with the Supreme Court's decision, the
Board has evaluated hiring halls in terms of whether or not
the union's actions are necessary for the effective perfor-
mance of its function as bargaining representative. Thus, in
International Union of Operating Engineers, Local 18, AFL-
CIO (William F. Murphy), 204 NLRB 681 (1973), remand-
ed 496 F.2d 1308 (C.A. 6, 1974), reaffirmed 220 NLRB 147
(1975), the Board held:
When a union prevents an employee from being
hired or causes an employee's discharge, it has
demonstrated its influence over the employee and its
power to affect his livelihood in so dramatic a way that
we will infer-or, if you please, adopt a presumption
that-the effect of its action is to encourage union
membership on the part of all employees who have
perceived that exercise of power.3 But the inference
may be overcome, or the presumption rebutted, not
only when the interference with employment was
pursuant to a valid union-security clause, but also in
instances where the facts show that the union action
was necessary to the effective performance of its
function of representing its constituency.
3 Radio Officer's Union [A H Bull Steamship Col v N L.R B, 347 U S.
17 (1954)
For a violation to be made out, there is no need for
evidence that the Union induced any employer to refuse
employment . As the Board held in Local Union 675,
International Brotherhood of Electrical Workers, AFL-CIO
(S & M Electric Co.), 223 NLRB 1499 (1976):
The Board has consistently found a violation of both
Section 8 (b)(1)(A) and (2) of the Act where a union has
discriminatorily refused to refer an employee for
employment pursuant to the terms of an exclusive
referral system in effect between the union and an
employer.
In the instant case, Respondent has not operated its
hiring hall in a way that was necessary for the effective
performance of its function of representing employees.
Instead, its actions stood "as a warning to employees that
the favor and goodwill of responsible union officials is to
be nurtured and sustained." International Longshoremen's
Association, Local No. 1581, AFL-CIO (Elias Gonzalez
Guerra), 196 NLRB 1186 (1972), enfd. 489 F.2d 635 (C.A.
5, 1974).
The General Counsel has established that 76 employees
were backdoored to jobs in violation of the hiring hall
procedures. There is no evidence in the record to establish
which particular employees would have been dispatched to
those 76 jobs if Respondent had refrained from engaging in
backdooring and had followed the criteria set forth in the
contractual hiring hall procedure. Though not identified,
there were many applicants for employment who were on
the out-of-work list, were present at the hall, and were
eligible for dispatch under the hiring hall procedures.
Those applicants who would have been referred for work
but for Respondent's circumvention of the hiring hall
procedure are discriminatees. That is so even though they
are not specifically identified in the complaint. As the
Board held in Standard Fruit and Steamship Company, 211
NLRB 121 (1974):30
Although there is no evidence in the instant case that
any employee who would have normally been dis-
patched to work for Respondent Employer was denied
such employment as a result of Respondent [Union's]
unlawful preferential treatment of certain employees,
this is a matter that affects the scope of the remedy
rather than the nature of the violation.
Respondent owes a duty of fair representation to
employees in the bargaining unit. That duty extends to
applicants for employment through Respondent's hiring
hall. Local No. 324, International Union of Operating
Engineers, AFL-CIO (Michigan Chapter, Associated Gener-
al Contractors ofAmerica, Inc.), 226 NLRB 587 (1976).
The duty of fair representation was first enunciated by
the United States Supreme Court in Steele v. Louisville &
Nashville Railroad Co., et al. 323 U.S. 192 (1944), which
arose under the Railway Labor Act. In that case, which
involved racial discrimination, the Supreme Court held
that the same statute that gave the union the right to act as
exclusive bargaining agent, inherently required the union
to represent nonunion or minority members in the craft
fairly, impartially, and in good faith. In Ford Motor
Company v. Huffman, 345 U.S. 330, 338 (1953), the United
States Supreme Court applied the same doctrine where a
seniority question was raised that involved a union whose
status as exclusive representative derived from the Nation-
al Labor Relations Act. The Court pointed out that "A
wide range of reasonableness must be allowed a statutory
bargaining representative in serving the unit it represents,
subject always to complete good faith and honesty of
30 See also Bechtel Power Corporation, 223 NLRB 1925 (1976); Utility and
Industrial Construction Company, 214 NLRB 1053 (1974).
IRON WORKERS , LOCAL 433
purpose in the exercise of its discretion ." See also Walter C.
Humphrey etc., et al v. Moore, 375 U.S. 335 ( 1964). Though
the Supreme Court cases cited above held that unions have
a duty to represent fairly all the employees for whom they
bargain , none of them dealt specifically with the question
of whether a breach of that duty violated any of the unfair
labor practice sections of the Act. The Board addressed
itself to that question in Miranda Fuel Company, Inc., 140
NLRB 181, 185 (1962), enforcement denied , 326 F.2d 172
(C.A. 2, 1963). In that case , the Board found that a union
caused an employee 's seniority status to be reduced in a
manner that violated its collective-bargaining contract. The
Board held that the duty of a statutory representative to
represent all employees in a bargaining unit had to be
viewed in the context of the right guaranteed employees in
Section 7 of the Act to bargain collectively , through
representatives of their own choosing . The Board then
held:
Section 7 thus gives employees the right to be free from
unfair or irrelevant or invidious treatment by their
exclusive bargaining agent in matters affecting their
employment . This right of employees is a statutory
limitation on the statutory bargaining representatives,
and we conclude that Section 8(b)(1)(A) of the Act
accordingly prohibits labor organizations , when acting
in a statutory representative capacity , from taking
action against any employee upon considerations or
classifications which are irrelevant , invidious or unfair.
The Board further held that a union violates Section 8(b)(2)
of the Act where its failure to represent employees fairly
adversely affects the employment status of an employee,
saying:
We further conclude that a statutory bargaining
representative and an employer also respectively violate
Section 8(b)(2) and 8 (a)(3) when , for arbitrary or
irrelevant reasons or upon the basis of an unfair
classification , the union attempts to cause or does cause
an employer to derogate the employment status of an
employee.
In essence the Board held that where a union causes an
employer to adversely affect an employee 's employment
status in such a manner that no legitimate employer or
union purpose is served , that the foreseeable result is an
unlawful encouragement of union membership. In the
Board's words:
As we read Local 357, the Supreme Court did not
overrule its holding in Radio Officers that union
membership is encouraged or discouraged whenever a
union causes an employer to affect an individual's
employment status. What it does hold, in our opinion,
is that an 8(a)(3) or 8(b)(2) violation does not
necessarily flow from conduct which has the fore-
seeable result of encouraging union membership, but
that given such "foreseeable result" the finding of a
violation may turn upon an evaluation of the disputed
31 E.g Delaware Valley Printing and Graphic Communications Union,
Local 1776 (The Bulletin Company), 226 NLRB 476 (1976), Local No 324,
1439
conduct "in terms of legitimate employer or union
purposes ." Unlike our colleagues , we do not interpret
the Court's opinion as permitting unions and their
agents an open season to affect an employee's employ-
ment status for any reason at all-personal , arbitrary,
unfair, capricious, and the like-merely because the
moving consideration does not involve the specific
union membership or activities of the affected employ-
ee. [Footnote omitted.]
Though the Court of Appeals for the Second Circuit
refused to enforce the Miranda decision , a majority of that
Court did not rule on the question whether a breach of the
duty of fair representation was an unfair labor practice. In
Manuel Vaca, et al. v . Sipes, 386 U.S. 171 (1967), the
United States Supreme Court decided a preemption
question involving a state court's jurisdiction over a union's
allegedly arbitrary failure to process a grievance to
arbitration . The high Court found that the state court had
concurrent jurisdiction but that a failure to represent fairly
had not been proven. In reaching that conclusion the Court
reviewed the history of the Miranda doctrine in detail, tying
that doctrine to the flow of cases dealing with the duty of
fair representation which started under the Railway Labor
Act. The Court held at 181 : "when the Board declared in
Miranda Fuel that a union's breach of its duty of fair
representation would henceforth be treated as an unfair
labor practice, the Board adopted and applied the doctrine
as it had been developed by the federal courts." In Kaj
Kling v. N.L.R. B., 503 F .2d 1044, 1046 (C.A. 9, 1975), the
Court in referring to Miranda stated : "Though enforce-
ment was denied by the Second Circuit . . ., the Board's
Miranda Fuel doctrine appears to have won the day, as
shown by the later favorable quotations in Vaca v. Sipes,
386 U.S. 171 at 177 . . ." The Board has consistently
followed its Miranda doctrine.31
On the basis of the facts set forth above , I find that
Respondent operated its hiring hall in such a manner as to
deny applicants their right to fair representation.
Respondent argues that the issues presented in this case
should be resolved through arbitration . Section 5 M of
Respondent's contract provides:
In the event any job applicant is dissatisfied with his
Group Classification or his order of referral in that such
applicant claims he was not placed in the proper Group
set forth above or is aggrieved by the operation of the
hiring arrangement or the provisions of this Section,
such aggrieved job applicant may appeal in writing
within 10 (ten) days from the day on which his
complaint arose to an Appellate Tribunal consisting of
a representative selected by the Employers and a
representative selected by the Union and an impartial
Umpire appointed jointly by the Employers and the
Union, and the decision of the Appellate Tribunal shall
be final and binding.
In International Association of Bridge, Structural and
Ornamental Iron Workers, Local 118, AFL-CIO (Bostrom-
Bergen), 219 NLRB 467 (1975), the Board ruled on the
International Union of Operating Engineers, AFL-CIO (Michigan Chapter,
AGC), supra
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same contract clause . The Administrative Law Judge in
that case held that the aggrieved party was opposed to the
position of the Union , and there was no assurance that
representatives of the employers or the union , who together
with an impartial umpire , composed the appellate tribunal
whose decision was final and binding , would fairly
represent the aggrieved party in his grievance against the
union 's administration of the hiring hall. The Board agreed
with the Administrative Law Judge that the issue should
not be deferred to arbitration under the Collyer doctrine,
192 NLRB 837 (1971), noting that the union was represent-
ed on the tribunal but that the employees were not. In
addition , deferral to arbitration is inappropriate where the
interests of the aggrieved employee are in apparent conflict
with the interests of the parties to the contract . Local Union
675, International Brotherhood of Electrical Workers, AFL-
CIO (S & M Electric Co.), supra. In the instant case, the
interests of the discnminatees who were deprived of
referral from the hall are in clear conflict with the interests
of the Union . The employers have taken no action to
protect the discnminatees.
In sum , I find that Respondent violated Section
8(b)(1)(A) and (2) of the Act by operating its exclusive
hiring hall in disregard of the provisions of the collective-
bargaining contract ; by the backdooring of the 76
individuals named in section K of this Decision, and by
failing to dispatch 76 unnamed individuals who should
have been dispatched pursuant to the contractual hiring
hall procedure instead of those who were backdoored.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent , as set forth in section III,
above , occurring in connection with the business opera-
tions of the employers set forth in section I above, have a
close , intimate , and substantial relationship to trade,
traffic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(b)(1)(A)
and (2) of the Act , I recommend that it be ordered to cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
I recommend that Respondent be ordered to operate its
exclusive hiring hall in a nondiscriminatory manner and in
accordance with the provisions of its July 1, 1974
collective-bargaining agreement with various associations
and employers , or any successor agreement.
The General Counsel seeks an order that will make
whole any individuals denied dispatch by Respondent's
unlawful operation of its hiring hall. Respondent contends
that a backpay order would not be appropriate.
The General Counsel has established that 76 named
individuals were dispatched in violation of the contractual
hiring hall procedures . The 76 discnminatees who would
have been dispatched to those jobs but for Respondent's
unlawful conduct , were not named or identified.
In some cases , the Board has ordered backpay for
unidentified discriminatees and in other cases it has
refused to do so . International Longshoremen 's and Ware-
housemen 's Union, Local No. 13 (Henry A . Gatlin), 183
NLRB 221 (1970), remanded 80 LRRM 3213 (C.A. 9,
1972), order reaffirmed 210 NLRB 952 (1974), was a case
in which individuals were denied Class A status in a
referral system because of an unlawful sponsorship system.
The number of discrinnatees and their names were
unknown . The Administrative Law Judge held that any
attempt to supply the names and the number of the
discnminatees would be pure conjecture . The Board did
not provide for a backpay order.
In Local No. 851, International Longshoremen's Associa-
tion, AFL-CIO (Biggers, et al.), 194 NLRB 1027 ( 1972), the
Administrative Law Judge recommended backpay for the
charging parties and all other applicants for employment
who had suffered loss by reason of a union 's unlawful
operation of a hiring hall. The Board did not grant a
backpay order covering the other applicants , holding that it
would be inadvisable to extend a "make whole " remedy
"to include losses of earnings to unknown individuals who
were not named in the complaint and whose status as a
part of a group which was unlawfully deprived of work was
not litigated during the course of the hearing."
However, in International Longshoremen 's and Ware-
housemen 's Union, Local No . 13 (Pacific Maritime Associa-
tion), 192 NLRB 260 (1971 ), reaffirmed 210 NLRB 952
(1974), the Board ordered backpay for unidentified
individuals who had lost employment opportunities be-
cause of the unlawful dispatch of other applicants.
In International Brotherhood of Boilermakers, Iron Ship
Builders, Blacksmiths, Forgers and Helpers, Local 101
(Stearns-Roger Corporation), 206 NLRB 30, fn . 3 (1973), the
Board granted a backpay order for unidentified individuals
who were discriminated against when a union gave
preference in dispatch to members . The Board held:
Nothing in this Decision precludes the General Coun-
sel from establishing in the compliance portion of this
proceeding that there are additional individuals whom
Respondent has caused discrimination against and who
are entitled to a remedy under the terms of this Order.
Wayne Electric Inc., et al., 226 NLRB 409 , fn. 3 (1976),
was a case involving a violation by an employer rather than
a union . However , it involved unidentified discriminatees.
The Board held:
[I ]f there are employees who would have been referred
but for Respondent's misconduct the make-whole order
herein encompasses them, and . . . a determination as
to whether or not there are such employees is best left
to the compliance stage of this proceeding.
The Board is understandably reluctant to allow extend-
ed, open ended litigation concerning the existence of
possible discriminatees , in a backpay hearing . However, in
the instant case, that problem is somewhat limited. There
were 76 specific instances where named employees were
unlawfully dispatched . Thus , there are 76 particular jobs in
question . It may be that the General Counsel will be
IRON WORKERS , LOCAL 433 1441
unable to identify which employees would have filled those
jobs if the contractual hiring hall procedures had been
followed. The General Counsel will have to show that those
individuals were on the out-of-work list, were in the hiring
hall when the job should have been announced, and met
the other criteria for proper dispatch as is set forth in the
contract. However, I believe that the General Counsel
should have the opportunity to attempt to do so in a
backpay proceeding. A wrong cognizable under the Act
has been established. Seventy-six individuals have been
discriminated against. To the extent that they have lost
earnings and benefits because of that discrimination, they
should be made whole.
I recommend that Respondent be ordered to make whole
for any loss of earnings and benefits they suffered, those 76
employees who were entitled to dispatch from Respon-
dent's hiring hall pursuant to the contractual rules of that
hiring hall, but who were denied dispatch because of the
unlawful referral to jobs of the 76 individuals named in
section III, K, of this Decision. Backpay shall be computed
in accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), with interest at
6 percent as provided in Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
As Respondent's unfair labor practices are serious in
nature and strike at the very heart of the Act, I recommend
that Respondent be ordered to cease and desist from in any
other manner restraining or coercing employees or appli-
cants for employment in the exercise of rights guaranteed
to them in Section 7 of the Act.32
It is recommended that Respondent be ordered to
maintain a book or semi-permanent type of record to
reflect accurately, fairly, and nondiscriminatorily, the
operation of the referral system from the hiring hall, and
for a period of 1 year, disclose to the Regional Director for
Region 21 or his agents the manner of operation of the
hiring hall.33
It is further recommended that Respondent be ordered
to preserve, and upon request, make available to the Board
or its agents, for examination and copying, all records
pertaining to employment through its hiring hall and all
records relevant and necessary for compliance with this
recommended Order.
CONCLUSIONS OF LAW
1. The above-named associations and employers are
employers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. At all times material herein, Respondent has been a
party to a collective-bargaining agreement dated July 1,
1974, with various associations and employers, under
which Respondent operates an exclusive hiring hall. The
32 Local No 78, United Brotherhood of Carpenters and Joiners of America,
AFL-CIO (Murray Walter, Inc), 223 NLRB 733 (1976), Local Union No 77
of the International Brotherhood of Painters and Allied Trades, AFL-CIO
(Colorite, Inc), 222 NLRB 607 (1976)
33 International Union of United Brewery, Flour, Cereal, Soft Drink and
Distillery Workers ofAmerica, AFL-CIO, et al (Considine Distributing Co, et
al), 166 NLRB 915 (1967)
criteria for dispatch from that hall are set forth in that
contract.
4. Respondent violated Section 8(b)(1)(A) and (2) of
the Act by:
(a) Operating its exclusive hiring hall in disregard of the
provisions of said collective-bargaining agreement.
(b) Dispatching the 76 individuals named in section III,
K of this Decision in violation of the contractual hiring hall
procedures.
(c) Failing to dispatch 76 unnamed individuals who
should have been dispatched pursuant to the contractual
hiring hall procedures instead of those who were unlawful-
ly dispatched.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER 34
The Respondent, International Association of Bridge,
Structural and Ornamental Iron Workers, Local No. 433,
its officers, agents, and representatives shall:
1. Cease and desist from:
(a) Operating its exclusive hiring hall in disregard of the
provisions of its July 1, 1974, collective-bargaining agree-
ment with various associations and employers, or any
successor agreement.
(b) Dispatching any individual in violation of said
contractual hiring hall procedures.
(c) Failing to dispatch any individual who is entitled to
dispatch pursuant to said contractual hiring hall proce-
dures.
(d) In any other manner restraining or coercing employ-
ees or applicants for employment in the exercise of rights
guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Operate its exclusive hiring hall in a nondiscriminato-
ry manner and in accordance with the provisions of its July
1, 1974, collective-bargaining agreement with various
associations and employers, or any successor agreement.
(b) Make whole those individuals who were unlawfully
refused dispatch, for any loss of earnings and benefits they
suffered, in the manner set forth in the section of this
Decision entitled, "The Remedy."
(c) Maintain a book or semi-permanent type of record to
reflect accurately, fairly, and nondiscriminatonly, the
operation of the referral system from the hiring hall, and
for a period of 1 year disclose to the Regional Director for
Region 21, or his agents, the manner of operation of the
hiring hall.
34 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Preserve, and upon request, make available to the
Board or its agents , for examination and copying, all
records pertaining to employment through its hiring hall,
and all records relevant and necessary for compliance with
this Order.
(e) Post at its business offices, hiring hall and meeting
places, copies of the attached notice marked "Appen-
dix." 35 Copies of said notice, on forms provided by the
Regional Director for Region 21, after being duly signed by
Respondent's authorized representative, shall be posted by
35 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall be
taken by Respondent to insure that the notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "