Iron Workers, Local 201

National Labor Relations Board - Board Decisions

Jun 14, 1979

242 N.L.R.B. 1177 (N.L.R.B. 1979)

IRON WORKERS, LOCAL 201
International Association of Bridge, Structural and
Ornamental Iron Workers, Local 201, AFL-CIO
(Hyman Construction Company) and James Albert
Hart. Cases 5-CB-2267 and 5-CB-2288
June 14, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDAI.E
On May 11, 1978, Administrative Law Judge Mor-
ton D. Friedman issued the attached Decision in this
proceeding, finding that Respondent violated Section
8(b)(1)(A) and 8(b)(2) of the Act. Thereafter, Respon-
dent filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.'
The complaint alleges, and the Administrative Law
Judge found, that Respondent violated Section
8(b)(l)(A) and (2) of the Act when it unlawfully de-
nied employee Hart a work permit, thereby causing
the Employer to discriminatorily discharge Hart.2 We
disagree with his conclusion. The relevant facts are
briefly as follows:
The Employer, Hyman Construction Company,
and the Union have a collective-bargaining agree-
ment providing, inter alia, for an exclusive hiring hall
arrangement. Under the agreement's referral system,
nonunion applicants must pay the Union for, and re-
ceive, a work permit in order to be referred to, and
work on, a job covered by the contract. The agree-
ment also provides, insofar as relevant here, that a
foreman be on each job. The practice was that the
first man assigned to a job automatically became the
foreman.
James Hart, the Charging Party, had been a permit
man for 7 years and had frequently worked for the
Employer during that period. In March 1977 he was
I Respondent has excepted to certain cre( ibility findings made by the Ad-
ministrative Law Judge. It is the Board's esLabished policy not to overrule an
administrative law judge's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950)., enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
2 The complaint also alleged a general unlawful practice by the Union of
refusing to issue work permits for union-related reasons. We adopt the Ad-
ministrative Law Judge's conclusion and recommendation that this allega-
tion of the complaint is without merit and should be dismissed.
transferred from one of the Employer's jobs in Alex-
andria, Virginia, to a jobsite in Washington, D.C.,
where he was the sole employee for 2 days. For the
remaining 3 days of his employment there he was
joined by three fellow employees. At no time was
Hart designated foreman on that job or paid fore-
man's wages. When attempting, on March 14, to re-
new his work permit, Hart was told by the Union
business agent, Grigsby, that he could not have a
work permit until he brought Rutherford, the Em-
ployer's general iron construction foreman, to the
union hall so that the three of them could talk. Hart,
without having acquired his work permit, went to his
jobsite and informed Rutherford of his conversation
with the union business agent and requested Ruther-
ford to return to the union hall with him. Rutherford
replied he was too busy but would telephone the busi-
ness agent. He did so and according to his testimony
was told "something about using Hart as a foreman,"
to which Rutherford replied-as indeed was the
case-that he was using Hart as a leadman and was
paying him overtime. After the telephone conversa-
tion, Rutherford told Hart he could not work without
a work permit. Hart then requested a layoff slip, but
before leaving stated he wanted to work for the Em-
ployer. However, insofar as the record indicates, he
has not done so since that time.
As the Administrative Law Judge notes. there can
be no question that Respondent had a legitimate con-
cern in holding up issuance of a work permit to Hart
as neither Hart nor the Employer was fully comply-
ing with the bargaining agreement and established
practice when Hart worked assertedly as a leadman,
rather than as a foreman, and received overtime
rather than foreman's pay.3 Further, nothing said or
done by Grigsby at or about the time the incident
occurred suggests even remotely that in withholding
Hart's work permit Grigsby was concerned with any-
thing other than the failure to employ and pay Hart
as a foreman. Consequently, we find that the reason
for withholding Hart's work permit on March 14 un-
til, as the union business agent stated at the time, he,
Hart, and Rutherford could have a discussion was the
Union's real concern about Hart's job situation. In so
finding, we reject the Administrative Law Judge's
conclusion that Respondent condoned the practice of
paying temporary foremen overtime in lieu of fore-
man's pay as there is no evidence that Respondent
was aware of such a practice.
Further, we find that there is insufficient grounds
for concluding that the business agent's March 14
conduct was motivated in whole or in part by any
I Also, it appears that Hart's receiving overtime rather than foreman's pay
would entitle him to receive certain union welfare benefits to which, in fact.
he was not entitled.
242 NLRB No. 165
1177
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
antipathy toward permit men generally or Hart in
particular. Although Rutherford testified that about a
month prior to the Hart incident a union business
agent told him he should lay off permit men and hire
union members, Rutherford added that he had heard
such comments for the past 28 years and that he
hears them every 6 to 8 weeks. Furthermore, the use
of permit men under the Union's jurisdiction is con-
cededly widespread, and there is no evidence in the
record of any threats over the failure to favor union
members or evidence of any actual discrimination
against the permit men by the Union. Consequently,
we conclude that the business agent's comment to
Rutherford reflected no more than a union hope to
have its members employed but not an intent to re-
sort to illegal means to achieve that end.
Similarly, while there is evidence that at a union
executive board meeting in mid-May Grigsby and
others told Rutherford, who had been called before
the board, that he should have hired a union member
rather than Hart and that about a month after that
incident Grigsby stated to a supervisor at a funeral
that Hart would never work out of the union hall
again until all union members had first been sent out,
these comments are inconsistent with what has been
Respondent's practice noted above.4 Also, the com-
ments occurred 3 to 4 months after the March 14
incident and thus it is questionable at best that they
reflect Grigsby's or the Union's motivation on that
date. In any event, as previously noted, there is no
evidence that Respondent has ever unlawfully dis-
criminated against work permit holders in order to
enhance the employment opportunities of its mem-
bers. Rather, the record contains convincing evidence
that the Union, through Grigsby, had a legitimate
economic complaint in holding up a work permit for
Hart until the contractual issue concerning his pay-
ment as a foreman was resolved. After all, had Grigs-
by forthwith issued Hart a work permit on March 14,
he would have in effect been sending him off to work
on a job under terms and conditions which the
Union-apparently in good faith and for good rea-
son-believed did not conform either with the provi-
sions of the applicable agreement or with established
practice.
In sum, we find that there is insufficient evidence to
conclude, that impermissible union considerations
played a part in Grigsby's failure and refusal to issue
a work permit to Hart on March 14, 1977, and thus
there is no basis for finding that Respondent caused
the Employer to discriminatorily discharge Hart on
that date. Rather, as stated above, we find that Hart
' Also we emphasize that. insofar as appears in the record, Grigsby in
denying Hart a work permit was doing so only temporarily, i.e. until the
contractual problem was resolved, and thus was not attempting to deny Hart
his job so that it could be filled by a union member.
was denied a permit for legitimate economic reasons.
We therefore shall dismiss the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the compaint herein
be, and it hereby is, dismissed in its entirety.
DECISION
STATEMENI O()F IIE CASE
MORION D. FRIEDMAN, Administrative Law Judge: The
hearing in this case was held at Washington, D.C., upon a
consolidated complaint issued on June 29, 1977, which
complaint was based on a charge filed in Case 5-CB 2267
on May 2, 1977, and a charge filed in Case 5-CB 2288 on
May 24. 1977. The complaint alleges that the International
Association of Bridge, Structural and Ornamental Iron
Workers, Local 201, AFL CIO, herein called the Union or
Respondent, in violation of Section 8(b)(1)(A) and (2) of the
National Labor Relations Act, as amended, refused to issue
work permits to employees because of their lack of mem-
bership in the Respondent and thereby caused the said em-
ployees to be discharged by their employers and specifically
caused Hyman Construction Company, herein called Hy-
man or the Company, to discharge James Albert Hart by
discriminatorily refusing to issue to Hart a work permit.
The answer, duly filed by the Union, denies the commission
of any unfair labor practices.
The Union defends on the ground that it denied Hart a
work permit because Hart violated the terms of the collec-
tive-bargaining agreement between the Union and The
Construction Contractors Council of Washington, D.C.,
herein called the Council, of which Hyman is a member.
Respondent further defends on the ground that its action
was taken for the purpose of protecting the employee mem-
bers of the Union who were employed by the Council mem-
bers and that, thereby, the Union was performing its neces-
sary. lawful statutory function. The Union further denies
that it at any time refused permits to any other employees
or job applicants or caused their discharge in order to favor
union members.
At the hearing all parties were represented, given full
opportunity to be heard, and to present evidence. Oral ar-
gument was waived. Briefs were filed by counsel for the
General Counsel and the Respondent.
Upon the entire record in this case, including the briefs of
the parties duly submitted, and upon my observation of
each witness, I make the following:
FINDINGS OF FAC(t
I. THE BUSINESS 01 THE COMPANY
Hyman, a Maryland corporation with its principal office
in Bethesda, Maryland, is engaged in the construction in-
dustry as a general contractor at various locations in the
Washington, D.C., metropolitan area. During the year im-
I 1178
IRON WORKE.RS, LOCAIL 201
mediately preceding the issuance of the consolidated com-
plaint herein, a representative period, the Company pur-
chased and received in interstate commerce materials and
supplies of a value in excess of $50.0()0 from points located
outside the State of Maryland.
It is admitted, and I find, that Hyman is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. 1THE LABOR ORGANIZATION INVOL()I )
It is admitted. and I find, that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
Ill. THF INFAIR ABOR PRA('II('S
A. The Fact.s
As noted, the Union and the Council. of which Hyman is
a member, are parties to a collective-bargaining agreement
which, among other clauses, contains a clause for the ap-
pointment of foremen as follows:
When one or more iron workers are employed, one
shall be designated to act as foreman and be paid fore-
man's wages.
The collective-bargaining agreement additionally pro-
vides for an exclusive hiring hall by means of which Hyman
and other employer-parties to the agreement must obtain
their rank-and-file ironworkers unless the Union cannot
supply the same within a 48-hour period after a request for
an ironworker is made. There are some exceptions to this
arrangement. The employers may hire, without going
through the hiring hall, a minimum number of key employ-
ees who may consist of a superintendent, general foreman
and foreman. In addition. the employer has the right to
employ directly on any job in the locality in which the em-
ployer maintains his principal place of business, employees
who are former employees of the employer and who have
been employed by the employer during the 12 months im-
mediately preceding the hire. All other employees needed
by the employers who are parties to the contract shall be
furnished and referred by the Union.
The referral clause of the contract also provides that re-
ferrals shall be made on a nondiscriminatory basis without
regard to race, religion, union membership or other consid-
erations. Thus, the referral and hiring hall practice, as set
forth in the agreement, is lawful and no contention is made
by the General Counsel that this referral system, as set forth
in the agreement, is unlawful.
Superimposed upon the referral system through the hir-
ing hall is a practice whereby nonunion applicants must
pay to the Union at the hall a weekly permit fee in order to
be referred out to a requesting employer. Although this per-
mit system is not part of the collective-bargaining agree-
ment there is, nevertheless, no claim that the requirement to
pay a weekly permit fee is in any way unlawful in and of
itself.
Since approximately 1971, Charging Party James Hart
has been a permit man and since that time has worked
frequently for Hyman. In March 1977. Hart was working as
an ironworker on permit for Hyman at a construction site
in Alexandria. Virginia. During the workday of March 8.
1977. Hart was told by his immediate foreman, William R.
Ruffner. to report to Howard R. Rutherford, also called
Snookie, general iron construction foreman for lHyman. at a
construction site in which Hyman was engaged at 20th and
K Street, Washington. D.C. Hart did as he was instructed
and reported to Rutherford at the K Street site where he
was shown plans by Rutherford and instructed to com-
mence work on footings, the areas for which had been cir-
cled on the plans by Rutherford. After being so instructed,
Hart began work and Rutherford, who had a number of
construction jobs in the metropolitan Washington area to
supervise. left the site.
For 2 days thereafter Hart worked alone, but on the fol-
lowing days two other employees of lyman were assigned
to work with Hart. These other ironworkers were Larry
Propst and Jimmy C. Moberly. One Friday, March I I, Guy
E. Sens was assigned to work with Hart. By that time.
Propst and Moberly were working elsewhere.
Propst. Moberly, and Sens testified at the hearing herein
that they were directed in their work by Hart. However, the
record clearly establishes that the work which Hart per-
formed in relation to the other three during the days that
they worked there on March 9, 10, and II11, consisted of
Hart's merely showing the individuals where the steel rods
were located and where the work was to be performed.
Also. Hart and the others unloaded steel rods for reinforc-
ing concrete. Although Hart held the plans during this pe-
riod, it is apparent from the testimony of the other three
individuals that they needed little or no direction in their
work, and that Hart's work with them was no more than
that of a leadman. at most. The record fully establishes that
Hart had no authority to hire, fire, discharge, discipline or
to independently direct these individuals inasmuch as not
only did he work alongside these men, but his hourly wage
rate was the same as theirs. Had Hart not been there, the
record establishes also, these men could have worked in-
dependently from the plans inasmuch as their experience
qualified them to do so. Hence. Hart was not a supervisor
within the meaning of the Act. At most, as noted, he was a
leadman and regarded as such by Rutherford who had as-
signed him to the work at the 20th and K Street building
site.
However. when, on the following Monday morning,
March 14, Hart reported to the union hall to pay his $2.50
weekly permit fee he was told by William Grigsby. the
Union's business manager, financial secretary-treasurer, to
wait in the hall until Grigsby could speak to Hart. Grigsby
did not accept Hart's tender of the permit fee at that time.
After the other individuals in the hall had gone to the win-
dow where the permits were issued. and had left or were
waiting around for referral, Grigshy called Hart to the win-
dow and told him that he could not have a permit until
such time as Hart brought Rutherford down to the union
hall and the three of them. Grigshy. Hart, and Rutherford,
could have a talk.
In connection with this refusal to issue a permit to Hart.
on one of the days during which Hart was working alone at
the jobsite at 20th and K Street, he was approached by the
Union's assistant business manager, Tommy Gilmer. who
asked Hart who the foreman was on the job. Hart told
1179
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gilmer that Rutherford was the foreman. Gilmer asked
where Rutherford was at. Hart answered that he thought
Rutherford was at dinner. With that Gilmer left the jobsite.
In any event, immediately following the refusal to issue
the permit and pursuant to instructions to Hart given by
Grigsby, Hart proceeded to the 20th and K Street site and
there spoke to Rutherford, telling the latter what had tran-
spired between Grigsby and Hart at the union hall with
Hart at that time, but he did call Grigsby on the telephone.
Grigsby told Rutherford "something about using Hart as a
foreman." Rutherford explained to Grigsby that he was
using Hart as a sort of leadmen and paying him overtime
for this. Grigsby merely answered "Oh." Rutherford then
told Grigsby that at the time that Hart was working as a
leadman, Rutherford had a union member in mind to put
on the job as soon as the preliminary work was completed.
In fact, Rutherford told Grigsby who the man to be desig-
nated foreman was going to be.
The foregoing summarizes the conversation on that day
between Rutherford and Grigsby. When Rutherford fin-
ished the conversation with Grigsby, he told Hart that the
latter could not work without a permit inasmuch as Hyman
would be liable for a lawsuit by the Union if he did. Under
these circumstances, and because Hart's parents, who lived
in West Virginia, had been injured in an automobile acci-
dent, Hart requested of Rutherford that the latter give to
Hart a layoff slip which would permit Hart to draw unem-
ployment compensation, assuming Hart was eligible for the
same. Before he left, Hart explained to Rutherford that he
wanted to work. Rutherford said that he would talk to
Grigsby and straighten out the matter.
Approximately 2 weeks later., Rutherford called Hart
and told the latter to come back to the Washington area to
go to work. Rutherford explained that he had talked to
Grigsby and the matter was straightened out. As a result of
this call, Hart left West Virginia, returned to the Washing-
ton area on March 28 and proceeded to the union hall. He
presented his money for a permit. However, Grigsby saying
that he was sorry, told Hart that things were slack and little
work was available. When Hart explained to Grigsby that
Hart had a job with Hyman to go to, presumably the job
for which Rutherford had called Hart long distance, Grigs-
by either did not pay attention to Hart or pretended not to
hear the latter. Hart, having been refused a permit, re-
turned to West Virginia.
Thereafter, after Hart had filed the charge in the instant
proceeding, Grigsby, by telephone, offered Hart an oppor-
tunity to return to the Washington area with no promise of
a referral to Hyman and stated that it might take 3 or 4
days to get Hart out of the hall because many of the men at
the hall were hoping to get jobs. Grigsby further stated that
Hart had worked all the previous winter and that these men
had not worked in a long time. Grigsby further stated that
as a matter of fact he had to pull off his own son, a permit
man, in order to give someone else a job.
In connection with the foregoing, Rutherford testified
that he has never hired or worked anyone without a book
t The date of this call is in some doubt bui the 2-week approximation
would seem to fit into the events which followed.
or permit from the Respondent. Also, during the year im-
mediately preceding the hearing herein, Grigsby had talked
to Rutherford about laying off permit men in order to hire
union members. Grigsby had done this approximately once
every 6 to 8 weeks during that year and as late as February
1977. Furthermore, in connection therewith, both Ruther-
ford and Ruffner attended a union executive board meeting
sometime after the charge in the instant case was filed with
regard to the charges. Grigsby, among others on the board,
stated to Rutherford that the latter should have hired a
local member instead of Hart on the jobsite at 20th and K
Street. Rutherford was asked by the committee why he had
not checked to see if there were not some capable foremen
who were laid off the week before Hart was assigned to the
K Street project and make one of them the foreman. Two
names were mentioned by the committee who could have
performed the foreman's work. One of these names was a
Mr. Steckler, the president of the Union.
In addition to all of the foregoing, at a funeral service for
the union business manager who had preceded Grigsby in
that position, Grigsby told Ruffner and Rutherford, possi-
bly in agitation over Hart's filing the charges leading to the
instant proceeding, that Hart would never work out of the
hall until all the bookmen were sent out, bookmen being
members of the Union as contrasted to permit men who
were not members.'
Finally, it should be noted, that Hart has not returned by
permission of the Union to his employment with Hyman.
However, after his last visit to the union hall, Hart took
employment elsewhere in West Virginia, having become
disheartened over any possibility of regaining employment
either with Hyman or with any other employer for whom it
was necessary for Hart to obtain a permit from the Union.
B. The Defenses
The Respondent's defense is based on two mutually sup-
portive arguments. The first defense is that the Respondent
at no time deprived Hart of employment by reason of the
fact, as alleged in the complaint, of Hart's nonmembership
in the Union. As set forth above in this Decision, the bar-
gaining agreement between the Union and the Council, of
which Hyman is a member, requires that there be a fore-
man on each job who should be paid a differential in pay.
At the hearing, the question was asked and answered re-
garding the normal practice in appointing a foreman. The
answer to this question was that the individual ironworker
who first reports to any job automatically becomes the fore-
man on that job. Respondent contends that Hart was re-
fused the permit on Monday, March 14, not because he was
2 All of the foregoing from credited testimony of Hart, Rutherford, and
Ruffner. Rutherford and Ruffner were evidently either members of the
Union or obligated to the Union because of the contractual relationship
between the Union and Hyman. They were reluctant witnesses insofar as
questions were asked, the answers to which could have been and, indeed,
were harmful to the Union. Therefore, examination of these individuals by
counsel for the General Counsel was permitted pursuant to Sec. 61 l(c) of the
Federal Rules of Evidence. Accordingly. it is concluded that the testimony
given by these individuals, in view of their relationship with the Union and
their evident reluctance and hostility when asked to answer questions con-
cerning Gngsby's activities, should be, and is, credited.
1180
IRON WORKERS, LOCAL 201
transferred by Hyman from the Alexandria job to the K
Street job, Respondent admitting that Hyman had the right
to do this under the contract, but because Hart accepted the
job as the first man on the job without becoming the fore-
man in name, and failing to demand, and accepting, wages
other than that required for foreman under the collective-
bargaining agreement. Accordingly, Respondent argues,
the withholding of the permit was for this breach of con-
tract on Hart's part and, inferentially, upon Hyman's part
through the actions of Rutherford in failing to pay to Hart
foreman's wages and, instead. paying the latter for overtime
which Hart did not actually work. Respondent continues
that when anyone of its members or any permit man is paid
for overtime work which is not actually performed, the con-
tractual fringe benefits payments place an extra burden on
the Union because, thereby, an employee favored by an
employer can gain extra welfare and retirement benefits to
which he is not entitled to the detriment of the other em-
ployee membeis. This places an unfair burden upon the
various funds of the Union. This, the Respondent contends
through Grigsby's testimony, is the reason why the permit
was withheld and why Grigsby desired to have Hart and
Rutherford come to the union office to discuss and possibly
straighten the matter out. According to Grigsby, had they
done so, the permit for Hart to continue to work would
have been issued.
As a second defense, to show that there could not have
been any withholding of the permit because of Hart's non-
membership in the Union, Respondent introduced in evi-
dence records showing that nonunion men were issued per-
mits during the entire period of time in question and, that
during the year in question a number of nonunion men had
been appointed and permitted to act as foremen for em-
ployer members of the Council with which the Union has a
collective-bargaining relationship. Therefore, argues the
Respondent, Grigsby's refusal to issue the permit to Hart
could not have been for unlawful reasons since it operates
its hall on a completely nondiscriminatory basis as evi-
denced by these documents.
C. Discussion and Conclusions
At the hearing herein, the Union presented three mem-
bers who were employed at the K Street site during the time
that Hart worked there. These employees gave very brief
testimony which was offered to prove that Hart was, in-
deed, a foreman within the definition of the same as used by
the Union. However, nothing in the record, including the
testimony of these indivudals, leads to the conclusion that
Hart was a supervisor within the meaning of the Act. The
record clearly establishes that Hart had no authority to
hire, fire, discharge, discipline, grant overtime, relieve men
from their duties, or in any other manner exercise any of
the usual criteria as prescribed by the Act to define supervi-
sors generally. Accordingly, I find and conclude that al-
though Hart might have been a union defined foreman in-
sofar as he was the first man assigned to the K Street job. in
the performance of his duties on that job he neither pos-
sessed nor exercised any authority of supervision and,
therefore, is entitled to the protection of the Act as an em-
ployee.
Accordingly, the question next to be answered is whether
Hart was refused the permit. and thereby automatically re-
fused employment by Hyman. for discriminatory reasons or
for good and valid motives necessary to effectuate the
Union's position as the bargaining representative of its
members.
The testimony as presented by Union Business Repre-
sentative Grigsby would seem to support a finding that ini-
tially. at least, Grigsby's refusal to issue a permit to Hart on
March 14 was motivated by a valid and legitimate exercise
of the Union's authority, delegated to the Union by reason
of its duty of representing the membership of the Union at
large. While it is true that under Radio Officers' Union of the
Commercial Telegraphers Union [Bull Steamship Company]
v. N.L.R.B., 347 U.S. 17 (1954), a discharge for reasons
other than failure to pay union or initiation fees, or in the
instant case to pay or tender permit money, would be dis-
criminatory, there are numerous decisions which hold that
the presumption that a union's activities in causing an em-
ployee's discharge for reasons other than failure to pay ini-
tiation fees, dues, or permit money, is lawful where the facts
show that the union's action is necessary to the effective
performance of its function of representing its constitu-
ency.
In the case at bar, as argued by Respondent. and as pre-
sented by the testimony of Grigsby. the Union had a legiti-
mate concern to see to it that pursuant to its contract with
the Council of which Hyman was a member, the employer-
contracting parties fully complied with the terms of the col-
lective-bargaining agreement. It requires no particularly in-
tricate interpretation of the collective-bargaining agree-
ment, as heretofore set forth, to show that the payments to
Hart of overtime, rather than foreman's pay, constituted a
possible violation of the collective-bargaining agreement,
which violation was of concern to the Union and to the
Union's constituency. Therefore, were no other factors pre-
sent, the only conclusion which could be reached with re-
gard to the factual situation presented by this case would be
that the Union refused to issue the permit requested by
Hart because both Hart and Hyman were engaged in acts
violative of the collective-bargaining agreement and, there-
fore, the withholding of the permit from Hart was a lawful,
nondiscriminatory action by the Union and, accordingly,
not violative of the Act.
However, other facts in the record would seem to indi-
cate that the reason for the withholding of the permit was
other than the pure and simple requirement by the Union
that the collective-bargaining agreement be complied with
by Hart and by Hyman. Not heretofore set forth in the
factual statement is credited testimony of Rutherford and
Ruffner to the effect that where a job is assigned, temporar-
ily, to a single individual, Hyman, for some time, had been
paying the individual doing such work overtime money for
work not performed rather than paying these individuals
foreman's pay. The reason for doing this, as given by Ruth-
3 See, for example, Philadelphiua Tvpographical Union No. 2 (Triangle Pub-
ications. 189 NLRB 829 (1971); cf International U'nion of Operating Engi-
neers. Local 18 AFL. CIO (Ohio Contracror AisociatlonL, 204 NLRB 681
(1973)
1181
I) t('ISIONS OF NA TIONAI LABOR RELATIONS BOARD
erf'ord and Ruffner, is that the payroll for llyman's employ-
ees is computerized and the necessity for changing the com-
puters and feeding additional information upon a change of
status from employee to foreman becomes a nuisance where
the assignment to the job as a single individual on such job
is only temporary as was the case of' Hart's assignment from
the Alexandria project to the K Street project in Washing-
ton. That this practice had been going on for quite some
time there is no doubt. It is difficult to believe that the
Union, under such circumstances was not aware of this
practice long before Hart's temporary assignment as the
single individual assigned by lHyman to the K Street proj-
ect. Accordingly, it is concluded that there was condonation
of this practice until the case of Hart's assignment to the K
Street project at a time when union book members were
laid off and not working, and especially when the president
of the Union was in such layoff status.
As heretofore related, after the charge in the instant pro-
ceeding was filed, Rutherford was summoned before the
Union's executive committee and the statement was made
to him both by Grigsby and other members thereof to the
effect that he should not have assigned Hart to the position
at K Street but should have assigned book members. The
committee members specifically mentioned the Union's
president and one other individual, at least. Thus, there is
every indication that although it may well have been that a
legitimate reason existed for the refusal to issue the permit
to Hart on March 14. there was also the discriminatory
reason for refusing Hart the permit by reason of the fact
that the union president and other bookmen had been laid
off and were eager for work and the Union chose to prefer
bookmen over a permit man although the permit man was
evidently equally qualified to perform the job under the
referral system set forth in the collective-bargaining agree-
ment. Thus, although Grigsby's reason for refusing Hart's
permit might have been a mixed motive reason, namely, the
violation of the collective-bargaining agreement and the de-
sire to send a bookman to the job instead of' Hart. the fact
that the motivation was, in part, wrongful within the mean-
ing of Section 8(a)(2) of the Act. It is found and concluded
that the refusal to issue the permit, and thereby cause
Hart's discriminatory discharge, was violative of Section
8(b)(2) and ( I (A) of the Act.
The complaint, as noted heretofore, also alleges a general
practice of the Union of refusing to issue work permits to
employees and applicants because of their lack of member-
ship in the Union. Set forth above is Rutherford's testimony
to the effect that as recently as February 1977. approxi-
mately no more than a month before Hart was refused a
permit, union representatives asked him to lay off permit
men and to hire union members instead. No specific evi-
dence is needed to prove that in the construction trades.
generally, layoffs and hirings come rather frequently with
the beginnings and the endings of jobs in the various trades
at various construction sites within any given geographic
area. Thereftore. it is understandable that bookmen. union
members, would be given referral preference if it were not
unlawful to do so, where the jobs in the particular area in
which a union local operates cannot absorb all of the indi-
viduals who desire employment in the classifications of
work performed by the individuals represented by the
Union. Such a condition undoubtedly existed during the
period of time during which the Union, according to Ruth-
erford, requested that he lay off permit men and hire union
members. However, as argued by Respondent Union, ex-
cept for the case of Hart, General Counsel offered no evi-
dence of any specific layoff or any specific hiring pursuant
to any specific request on the part of' union officials to lay
off permit men in order to hire union members. Accord-
ingly, on the basis of such a record, it cannot be found that
such a discriminatory practice was followed by the Union.
It is concluded, therefore, that the allegations of the com-
plaint alleging such a general practice must be dismissed for
lack of specificity of' evidence.
IV. IHF FFFFCT OF IIe UNI:AIR I.ABOR PRA('II('S UPON
( '()MMER('I
The activities of Respondent set forth in section III,
above, occurring in connection with the operation of em-
ployer Hyman herein described in section 1, above, have a
close, intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. Ii RMEI)Y
It having been found that Respondent herein has vio-
lated the Act, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of' the Act.
It having been found that Respondent engaged in activi-
ties which constituted interference, restraint, and coercion
as defined by Section 8(b)(2) and 8(b)( 1 )(a) of the Act, it is
recommended that the Respondent be ordered to cease and
desist therefrom. It is further ordered that to effectuate the
policies of the Act and to remedy the violations found
herein. Respondent will notif' Hyman and other employers
using the Respondent's hiring hall that it has no objection
to the employment of James Albert Hart and, that Hart will
have full use of the hiring hall facilities of the Respondent
without discrimination for the purpose of referrals for em-
ployment and the issuance of permits therefbre upon proper
tender of the permit fee by Hart. It is also recommended
that Respondent make Hart whole for any loss of earnings
he may have suffered as a result of the discrimination prac-
ticed against him by the Union. Such payments shall be
equal to the amount of wages Hart would have earned but
for the discrimination, in accordance with the standards set
forth in F W. Woolworth Compant. 90 NLRB 289 (1950),
and Florida Steel Corporation, 231 NLRB 651 (1977).4
Upon the basis of the foregoing findings of' fact and the
entire record in this case, I make the following:
CON('LUSIONS OF LAW
I. yman Construction Company is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
I See, generally. lis Plumbing & Ileauing (, 138 NlRB 716 (1962).
1182
IRON WORKERS, LOCAL 201
2. International Association of Bridge, Structural and
Ornamental Iron Workers, Local 201, AFL CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By refusing to issue a permit to James Albert Hart.
and thereby causing Hyman to discriminatorily discharge
Hart, the Respondent has violated and is violating Section
8(b)(2) and 8(b)( I )(a) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
5. The Respondent Union has not established or ltl-
lowed a practice of causing emploNers to discharge permit
men in order to cause the said emplo\ers to hire union
members.
[Recommended Order omitted from publication.]
1183