Iron Workers Local 601 (Papco, Inc)

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 1273 (N.L.R.B. 1985)

IRON WORKERS LOCAL 601 (PAPCO, INC.)
International Association . of Bridge , Structural and
Ornamental Iron Workers, AFL-CIO, Local
601 (Papco , Inc.) and James L. Brown. Cases
11-CB-1280 and 11-CB-1320 -
30 September' 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
- DENNIS AND BABSON
On 27 June 1985 Administrative Law Judge
Hutton S. Brandon issued the attached decision.
The Respondent filed exceptions and a supporting
brief and the General Counsel filed an answering
brief.
- The National Labor Relations Board has delegat-
ed its authority- in this proceeding to a three-
member panel.
The Board has considered the- decision and the
record in light of the exceptions and briefs and-has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order'
as- modified. .
ORDER
The National Labor Relations Board adopts the
recommended Order of the 'administrative law
judge as modified below and orders that the Re-
spondent, International- Association of Bridge,
Structural and Ornamental Iron Workers, AFL-
CIO, Local 601, Charleston, South Carolina, its of-
ficers, agents, and representatives, shall take the
action set forth in the Order as modified.
1. Insert the following as paragraph 1(b) and re-'
letter the subsequent paragraphs. -,
"(b) Discriminatorily refusing to refer employees
or applicants for employment through its employ-
ment referral system because they have been criti-
cal of the Union or the way it operates."
2. Substitute the attached notice for that of the
administrative,law judge.
1 We shall modify the judge's recommended Order to reflect his find-
mg, which we adopt, that the Respondent refused -to refer James L
Brown for discriminatory reasons
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
• POSTED BY ORDER OF-THE
NATIONAL LABOR RELATIONS BOARD
An Agency -of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has. ordered us to post and abide by'this notice.
276 NLRB No. 142
1273
WE WILL NOT threaten to assault - or assault
James L. Brown, or any of our members for being
,critical of the Union or, the way it operates. -
WE WILL NOT discriritinatorily -refuse to refer
employees or applicants for employment through
our employment referral system because. they have
been -critical of the:Union or -the ,way it. operates.
WE WILL NOT refuse to'refer employees or appli-
cants for employment through our employment re-
ferral system in disregard of the -provisions of our
collective-bargaining agreements with various asso-
ciations and employers or in disregard of our pub-
lished internal rules and regulations regarding such
referrals. -
• WE WILL NOT in any other manner restrain or
coerce- employees or applicants, for employment in
the exercise -of the rights guaranteed them by Sec-
tion 7 of the Act.
WE WILL make James L. Brown whole, with in-
terest, for' any loss of earnings he may have sus-
tained because of our unlawful failures to refer him
for employment. - -
INTERNATIONAL ASSOCIATION OF
BRIDGE, 'STRUCTURAL AND ORNA-
MENTAL IRON WORKERS, AFL-CIO,
LOCAL 601
George Carson, Esq., for the General Counsel.
Allen Holmes, - Esq. (Gibbs and Holmes), of Charleston,
South Carolina, for the Respondent. -
James L. Brown, pro se.
DECISION -
STATEMENT OF THE CASE
HUTTON S . BRANDON, Administrative Law- Judge.
This case was tried at Charleston , South Carolina, on 10
and'11 April 1985 . The charge in Case 11 -CB-1280 was
filed by James L. Brown , an - individual (Brown) on 16
July 1984 ,1 while the charge in Case 11-CB-1320 was
filed by Brown on 30 November. A complaint in the first
numbered case - was issued by the Regional Director for
Region 11 of the National Labor Relations Board on 28
'August. An order consolidating cases and a consolidated
complaint incorporating allegations of the second charge
issued on 14 January, and was amended on 28 March.
The consolidated complaint , as amended , alleged that
International Association of Bridge, Structural and Orna-
mental Iron Workers , AFL-CIO, Local 601 (Respondent
or the Union) violated Section 8(b)(1)(A) 'of the National
Labor Relations Act by (a) threatening an employee-
member with physical violence for questioning a union
expenditure at a union meeting , (b) physically assaulting
an employee -member for having questioned a union ex-
penditure , and (c) failing and refusing to refer Brown to
- ' All dates are from May 1984_ through April 1985 unless otherwise
stated • - -
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jobs with Papco, Inc. and other employers' jobs pursuant
to a-hiring hall arrangement. with such employers. Re-
spondent's timely filed answer denies the commission of
the unfair labor practices alleged and- puts in issue the
factual basis for the complaint allegations. ' '
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs- filed by the General Counsel and Respondent,
I make the following -
FINDINGS OF FACT
1. JURISDICTION
The consolidated complaint alleges that Papco, ' Inc.
(Papco) is an Alabama corporation engaged in the con-
struction business at various locations throughout the
United States, including the International' Paper Compa-
ny plant at Georg;town,`South Carolina. It is further al-
leged that, during the 12-month period preceding• issu-
ance of the complaint, Papco in the course and conduct
of its construction operations performed services valued
in excess-of $50,000 in States other than the State of
South Carolina. Respondent at the hearing admitted
these allegations to be true as well as the additional alle-
gation that Papco, is an employer within the meaning of
Section 2(2) of the Act engaged in commerce within the
meaning of Section 2(6) and-(7) of the Act. Accordingly,
I find the truth of these allegations has been established.
II. LABOR ORGANIZATION INVOLVED
The consolidated complaint alleges, .Respondent ad-
mitts, and I- further, find-that Respondent is a -labor orga-
nization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. Background
Brown , although a 'resident of Darlington , South Caro-
lina, - has been a - member of Respondent , which has its
main office in Charleston , South Carolina , since 1963 He
has been - a longtime critic of union officers and policies.
In 1982 , he filed a charge with the Board in Case 11-
CB-1126 which resulted in litigation against the Union in
1983, and a decision adverse to the Union in -1984. More
specifically , the Union was -found in the decision (JD-.
52-84 , issued by Administrative Law Judge Donald R.
Holley on 14 February 1984, and adopted by the Board
in the absence of exceptions on 20 March' 1984) to have
violated Section 8(b)(1)(A) of the Act by threatening
Brown-With physical violence because Brown had re-
quested permission to copy the Union 's referral list and
by charging excessive fees for copying such- lists. • At. the
request of counsel for General Counsel , I have taken-ad-
ministrative notice of Judge Holley 's decision2 Which
2 As stated by the Board in Operating Engineers Local 12 (Associated
Engineers), 270 NLRB 1172 (1984) -
While the lack of formal'review [in a case adopted by the Board in
the absence of exceptions] may diminish or even negate the prece-
dential value of the rationale in-such a decision , there is no sound
also found that the Union had violated Section 8(b)(1)(A)
and (2) of the Act -in discriminatorily refusing to refer a
-referral applicant other than Brown 'to employment
under the Union's exclusive referral system. With respect
to the threat against Brown, Judge Holley found that
Herman McMahan, the Union's business agent, also in-
volved in the case sub judice, unlawfully threatened
Brown by inviting hini outside to settle their differences
over Brown's request to copy the Union's referral lists.
Judge Holley's decision further noted Brown's filing of
earlier charges with the Board against the Union which
were resolved without litigation.
Brown continued in his opposition to union leadership
by unsuccessfully running for presidency of the Union in
September against the present incumbent George Sim-
mons. Moreover, he did not support McMahan's candi-
dacy for reelection to the position of business agent.
Brown's history of difficulty with the Union was ac-
knowledged by Respondent's counsel at hearing who ob-
served, in connection with an argument regarding
Brown's own proclivity to violence, that Brown "has a
pattern and practice of hiding behind the National Labor
Relations Act, the Constitution of the Union and so on
and so forth." , - -
The General Counsel contends herein that the history
outlined above establishes the basis for the Union's ex-
treme animosity toward Brown, and serves to illuminate
the conduct of the Union and its business agent, McMa-
han, herein.
2. The alleged threat and assault.
On 18 May Brown attended a regular scheduled union
meeting at the union hall in Charleston. An item of busi-
ness at the meeting was expenditures on one of-two auto-
mobiles owned by the Union and the ultimate sale or dis-
position of the automobile. Apparently Brown ques-
tioned the necessity for the Union's owning.of two auto-
mobiles in the first place, and he raised questions regard-
ing expenditures for insurance and licensing for the car
which the Union was proposing to sell. According to
Brown, McMahan apparently took offense at his remarks
and told Brown that he had two arms and two legs and
could drive two cars and added that- he would -"get"
Brown, that McMahan's time would come- -
Brown moved from the floor of the meeting for adop-
tion of a method of selling the car in issue different from
that proposed by McMahan. -Brown's motion was reject-
ed by a vote of the attending membership. Following the
conclusion of the meeting _ and while still in the union
hall, Brown was approached by James Veseley, another
union member who, in effect, rebuked Brown for raising
issues at the meeting and causing trouble. Brown insisted
he had a right to raise issues. -.
There is a dispute between, the testimony of witnesses
herein regarding whether the discussion between Brown
and Veseley was a loud one. It is nevertheless clear that
McMahan's attention was drawn to the two and he ap-
proached them and confronted Brown, saying according
basis for treating such decisions as less than a formal determination
of a respondent 's culpability under the Act , -
IRON WORKERS LOCAL 601 (PAPCO, INC.) - 1275
to Brown , that he had better watch what - he was saying
or McMahan would file internal , union charges against
him. Brown replied that he was not talking to McMahan
but to Veseley and that it was not any of McMahan's
business . Further , according to Brown , Veseley also told
McMahan that it was none of his business . Brown testi-
fied that, after this exchange , he turned his head back
toward Veseley at which point McMahan 's left hand
struck Brown on the right side of Brown 's face breaking
his glasses, bloodying his nose , and knocking him to the
floor . At that point according to Brown , McMahan
stood over him and told him McMahan had hit him with
his left and asked if Brown wanted to try McMahan's
right . Brown further testified that he never saw the blow
coming , -made no attempt to ward it off, and made no re-
sponse to McMahan's further challenge after the blow
had been struck. - .
. McMahan in his testimony admitted that - he struck
Brown . Further, McMahan admitted that Brown had
told him the exchange with Veseley was none of McMa-
han's business .' Brown , according to McMahan , also said
he was not afraid of McMahan . McMahan related he
then told Brown that he had given him his word "a
while back" that he was not going to have any problems
with Brown , but if very much more of this keeps up, he
was going to take his word back . Brown replied that
McMahan 's word was no good and McMahan was no
good . Following additional similar remarks , McMahan
turned to walk away but observed Brown 's hand going
to his pocket , and he then struck Brown. McMahan ex-
plained that having heard - stones from other union mem-
bers about Brown using a knife in fights, and having seen
Brown sharpening a knife at union meetings, he feared
that Brown was reaching for a knife . McMahan added
that after striking Brown , Brown told McMahan he was
not finished with him yet. McMahan did not specifically
deny telling Brown - he. had hit him with his left and
asking him if he wanted his right . On the other hand, he
claimed he had- some books in his right hand at the time
he struck Brown.
The General Counsel presented two witnesses to the
18 May incident , Phillip Lee and Hubert Martin, who
generally corroborated Brown 's version with some . in-
consequential variations . Martin, who testified he heard
nothing said between the two before the blow was struck
other than a comment by Brown that he did not trust
McMahan 's decisions , related that Brown made no ges-
tures toward McMahan before the blow was struck. Lee
was not looking at the time the blow was struck,, but
heard the impact of it.
Veseley testified for Respondent explaining that he did
not see McMahan hit Brown . He had left the two to go
into the restroom a few feet away , but testified that after
entering the restroom , he heard Brown issue an epithet,
presumably at McMahan . However , on cross -examina-
tion , he equivocated on the point . Moreover , Veseley
conceded he did not remember "a whole lot" about the
remarks exchanged by Brown and McMahan . While Phil
Lindsey - was identified as a witness to the affair, and al-
-though he was called as a witness by Respondent,- he
was not asked about the confrontation between Brown
and McMahan or McMahan 's striking Brown.
Considering the respective testimony of the witnesses
to the occurrences on 18 May , I am constrained t6 credit
the testimony of Brown , Lee, and Martin wherever they
contradict McMahan and Veseley . Brown 's testimony,
particularly his denial that he made any threatening ges-
ture toward McMahan , was corroborated by Martin.
Lee's testimony was generally corroborative of Brown
and Martin . On the other hand , Veseley 's testimony -re-
garding the epithet attributed to Brown was equivocal
and suspect because ' it was admittedly made outside his
presence . Further , it was not even corroborated by
McMahan . I find Veseley incredible on this issue.
McMahan remains the only witness who attributed any
threatening gesture to Brown as provocation for striking
Brown . McMahan's testimony throughout the hearing
may be fairly characterized as self-serving , evasive, indi-
rect , and occasionally contradictory ., In testimonial de-
meanor, ' I found him entirely unpersuasive . Moreover, I
believe undisputed facts substantiate that the assault on
Brown was not provoked by any offensive gesture on his
part. It is clear that McMahan 's blow ' caught Brown by
surprise , for he had made no effort to ward it off. If
Brown had in fact been reaching for a knife, it is , unlikely
that he would have been taken by - surprise by a single
blow so solidly delivered that it knocked him to the
floor .. Further , McMahan 's subsequent remark to. Brown
-as he stood over him to' the effect that was his left, and
Brown might wish to try his right ,. strikes me as not
wholly consistent with an initial act of self-defense. If
McMahan had in -fact feared Brown was reaching for a
knife , it appears more reasonable that McMahan- would
have said something about it to ` B'rown . Yet,- McMahan
made no reference to a knife or any other kind of
weapon as he stood over Brown after -hitting`him.
Also in assessing McMahan 's credibility , I must note
that McMahan had previously invited Brown to fight in
the case considered by Judge Holley. That invitation
clearly reflects not only McMahan's hostility toward
Brown but also adisposition to express such hostility
through fisticuffs Given this disposition it,is less likely
that McMahan 's attack on Brown was defensive in
nature .. - - --
Finally , I have taken into consideration as bearing on
McMahan 's credibility conviction in the - United States
Court, District of South - Carolina , Charleston Division,
on 29 January for violations of United States Code Title
18,.1341, 1342 , and Title 29 , Sec. 501 (c). This felony con-
viction relating to fraud and embezzlement,,which conse-
quently bears on McMahan 's honesty, was in the appeal
process at the time of the' hearing-herein . Under 'Rule
609 of the Federal Rules of Evidence, the fact of McMa-
han's conviction was admissible herein and may not be
disregarded in assessing his -credibility . See NLRB v.
Jacob E. Decker & Sons, 569 F . 2d 357 (5th Cir. 1978). I
have considered such conviction as supportive of my
conclusions regarding McMahan 's credibility herein, but
I have accorded greater weight to the other-factors
noted above . ' - ,
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The failure to refer Brown
Brown was employed at a job on the naval base in
North Charleston from August 1981 until the job ended
in. August 1984. Brown was apparently unemployed be-
tween the termination of that job and his registering with
the Union's referral system on 12, November and again
on 26 November after hearing that Papco was going to
be hiring ironworkers for a job in Georgetown, South
Carolina.
It appears that Papco was party to an agreement be-
tween the Union and the Erector Employer Association
providing for the Union's referral of employees to the
employers as required. The employers retained the right
to employ directly a "minimum number of key employ-
ees," and also retained the right to reject any referral by
the Union for justifiable reason. Further, under the
agreement the employers retained the right to ask for re-
ferrals by name and, where necessary, to specify referral
of those having particular skills. Only if the Union were
unable to provide the employers with referrals within a
48-hour period were the employers entitled to hire di-
rectly at the jobsite.
While the referral agreement provided for the mainte-
nance of four separate groups of employees for referral
with priority accorded to group "A" on the basis of
skills, experience, prior employment by-employer-parties
to a bargaining agreement with the Union, and residence
requirements, in practice, insofar as this record shows,
the Union maintained only two lists, an "A-list" or avail-
able for work (out-of-work) log, and a "B-list ," a daily
register for those reporting to the hall seeking work on
any given day. Relevant positions of the Union's rules
and regulations regarding its referral procedures provides
for referral of applicants in the hall from 8 to 10 a.m.
Monday through Friday; provides any referral applicants
must initially be registered on the A list; requires that to
retain eligibility for referral, a referral applicant must re-
register on the A list each 30 days; and provides that if
there are'no qualified referral- applicants on the B list, re-
ferrals may be made by the Union by telephoning those
people on the A list.
On 26 November when Brown- signed the A list, he
also signed the B list: While at the union hall Brown in-
quired of McMahan who would be supervising the
Papco job, and McMahan stated it would be Sam Kelly,
and Glenn Falk. McMahan: did not mention any ineligi-
bility of Brown for employment by Papco. Also while at
the hall, Brown testified he heard McMahan ask a man
named Webster who had signed the B list ahead of
Brown if he wanted the Papco job. Webster declined.
The record reflects that two men were referred by
McMahan to the Papco job on 26 November, Finch and
Lindsey, both of whom were on the A list but neither of
whom was on the B list.
On 27 November Brown telephonically talked to
McMahan and asked if he would be referred to the
Papco job. McMahan said he would not be because he
was on a "not for rehire" list at Papco. Thereafter, the
two discussed the fact that Brown had been discharged
from the Papco job in 1975, but Brown reminded McMa-
han that he had been employed -by Papco twice since
that time3 having been referred to the job by McMahan.
Brown testified McMahan told- him that he had "brought
up the not-for-rehire list and that Papco was supposed to
send him a letter stating whether or not to disregard it."
McMahan ended the conversation telling. Brown that
Brown would have to get the matter straightened out
with Papco himself.
The record reveals that an additional' man, Phillips,
was referred to Papco by McMahan on 27 November.
Phillips was not on either the A or the B. On 3 Decem-
ber, 27 additional people were referred to the Papco job
by McMahan most of whom were not on the A list and
none of whom was on the B list . Of those on the A" list,
only seven signed above or ahead of Brown.
Further, in connection with Papco referrals following
the filing of the charge in Case 11-CB-1320 by Brown,
and during investigation of -the charge, the General
Counsel interviewed H. S. Kelly, Papco's project manag-
er, on 12 December and obtained a written statement
from him. In the statement Kelly verified that Brown
had worked for Papco in 1978 and 1979-1980 and was
terminated on both occasions in a reduction in force and
concluded that in view of that, Papco had no objection
to Brown's referral by the Union and that Brown should
not be on a not-for-rehire list. The General Counsel as-
serted at the hearing without contradiction from Re-
spondent that Kelly's position was communicated to Re-
_ spondent's counsel on 17 December. Notwithstanding
this fact three employees were referred to Papco on 17
December and one on 19 December, none - of whom
were on the B list or ahead- of Brown on the A" list.
Brown was not referred. Instead, based on the statement
of Respondent' s counsel at the .hearing, McMahan con-
tacted a higher official of Papco at its offices in Mobile,
Alabama, James L. Martin, who wrote McMahan a letter
dated 22 December stating that Papco did not intend to
employ Brown , noting that Brown had engaged in gross
insubordination by striking a salaried supervisor and re-
questing that Brown not be referred to Papco. More-
over, on 8 April Respondent secured a statement from
Kelly asserting that when he earlier gave the statement
to the General Counsel concerning Brown, he had no
"prior knowledge of [Brown's] problem with Papco."
Neither Kelly nor Martin were called as a witness in this
proceeding.
Brown was provided no referrals by the Union to any
employer, prior to the hearing herein although he updat-
ed his position on the A list on 21 December and reregis-
tered on that list on 4 February and again on 13 March.
Further he signed the B list on 12 December, 4 Febru-
ary, and 25 March. The record establishes that during
this period, the Union referred nine men to Huber Con-
_'struction Company, two to General Contracting Compa-
ny, two to South Carolina Electric and Gas Company,
3 It is undisputed that , on 21 May 1975, Brown had been terminated
for "Gross disrespect of Supervision," with his "status change" card
maintained by the Company marked not for rehire It is-furthei undis-
puted that Brown nevertheless was reemployed by Papco from 14 No-
vember until 18 December 1978 when he was terminated in a reduction
in force, and again from 19 November 1979 until 10 April 1980 when he
was again caught in a reduction in force During the last week of the last
period of employment with Papco he had worked as a foreman
IRON WORKERS LOCAL 601 (PAPCO, INC.) 1277
four to Riley Stoker Company, two to Livers Bronze,
seven to Tidewater Construction Company, three to
Bestel Company, - and five to S & W _ Contractors. Only
approximately five-of the individuals referred were on
both the B list and ,the A list at the time of the referrals.
In 18 of these referrals, the individuals referred were on
neither list.
Under strict application of the referral procedures and
because of lapses in his position on the log as a result of
the 30-day rule Brown would have been ineligible for re-
ferrals to the South Carolina 'Electric and Gas jobs, the
Livers Bronze job, and one of the Tidewater'-Construc-
tion jobs. But the General Counsel contends that there
were at least five jobs in addition to the Papco job-for
which Brown' was eligible and to which he would have
been referred absent the Union's failure to fairly repre-
sent him. Thus, Brown was the top man on the A list on
10 January when two men, neither of whom were on
either referral list, were referred to•General Contracting.
Likewise, one individual,'Isaac Blue, was given a referral
on 15 January outside regular referral hours and when"
Brown was at the top of the A list. After re-signing the
A list on 4 February, Brown was near the top of that list
when the Union on 4 March referred three people to
Tidewater Construction Company none of whom were
on the B. list, and while two were on the A list they
were well below Brown. And on 19 March, three men
from Columbia, South Carolina, where the Union main-
tains another office, were allowed to sign both lists and
were immediately referred to jobs with Huber Construc,
tion Company. Finally, on 28 March, Brown received ,a
referral from the Federal Administrative Job Service in
Columbia to a job with S & W Contractors. Brown con-
firmed the job by telephoning Steward Brown, the em-
ployer's representative. Brown then telephoned Union
President Simmons and advised him of the job. Simmons
identified the union steward on the job and told Brown
that the steward would write him a. referral. However,
when Brown reported to the job the next morning, he
was told by the employer's- representative that he was
not needed, that the Union had already taken care of the
job.
The foregoing evidence establishes, I conclude, -, a
prima facie case that Respondent violated Section
8(b)(1)(A) of the Act as alleged . The Board has long
held that disparate treatment.in job referrals even from a
nonexclusive hiring hall for discriminatory reasons inde-
pendently violates Section 8(b)(1)(A). Operating Engi-
neers Local 4 (Carlson Corp.), 189 NLRB 366 (1971);
Teamsters Local 923 (Yellow Cab Co._), 172 NLRB 2137
_(1968). And to the extent-a union operates a referral
system in disregard of contractual requirements establish-
ing the system or in disregard of published nondiscrim-
inatory standards it operates without reference to objec-
tive criteria in violation of Section 8(b)(1). Plumbers
Local 619 (Bechtel Power Corp.), 268 NLRB 766 (1984);
Polis Wallcovering Co., 262 NLRB 1336 (1982); Laborers
Local 394 (New Jersey BGA), 247 NLRB 97 fn. 2 (1980).
Thus, Respondent's apparent disregard of its own refer-
ral procedures noted in the evidence presented by the
General Counsel is sufficient in itself to establish the
prima facie violation. The evidence regarding Respond-
ent's hostility toward Brown individually provides the
basis for an inference that Respondent's failure,to refer
him was intentional and thus expands the nature and
extent of the prima facie violation. Under these circum-
stances, I conclude, the burden shifts to Respondent to
establish that the operation of its referral system was
consistent with both contractual commitments and estab-
lished, objective criteria, that there was in fact no devi-
ation from the procedures in connection with the failure
to refer Brown, or that if there were deviation, it was
neither discriminatorily motivated or in breach of 'its
duty of fair representation. See Pipe Fitters Local 392 v.
NLRB, 712 F.2d 225 (6th Cir.,1983).
Respondent relies on the testimony of McMahan and
Simmons to explain the failure to refer Brown. In es-
sence, • McMahan testified- with respect to the Papco re-
ferrals that he met • with, Papco officials in a prejob con-
ference, and -a question was raised whether Papco
wanted the Union to refer people to the job that Papco
had previously terminated and marked their records as
"not for rehire." McMahan, who could not recall the
date of the meeting, testified generally that he was told
by Kelly and Papco's president Martin they did not want
such" people. Accordingly, McMahan wrote a letter' to
Kelly dated 26 November attaching copies of termina-
tions of eight employees from Papco,, including Brown's
1975 termination, and noting that they had been marked
"not for rehire." McMahan's letter did not request a re-
sponse,,and apparently 'none was received. Asked to ex-
plain the purpose of the -letter, McMahan testified with
some inherent contradiction: '
Well, it. was for two purposes; one purpose was if
there was anybody on there that they didn't agree
with that was not for rehire, then all they had to do
'was to let me know; and we wouldn't send them or
certainly not refer them to the job.
However, McMahan relied on his letter as identifying
those employees Papco did not want to reemploy and
used it, as a basis for refusing to refer Brown to the
Papco job, even though he was admittedly aware that
Brown had been employed by Papco subsequent 'to his
1975 termination. McMahan sought to avoid the implica-
tion of that awareness by stating that in 1980, subsequent
to Brown's last period of employment by Papco, McMa-
han talked to Papco's -then superintendent, Wilbur Na-
tions, and Nations told him he had made a terrible mis-
take giving Brown another chance at Papco.
McMahan conceded that he had received information
sometime later through Respondent's counsel and the
General. Counsel regarding, Kelly's statement that he had
no objection to Brown's employment. His testimony re-
garding his actions thereafter in contacting •Papco was
confused and he was at times clearly evasive on the
point. The gist of his testimony, however, was that he
contacted Papco's officials to ascertain whether they
would "eliminate" all the people previously marked "not
for rehire," referred to in the attachments to McMahan's
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
26 November letter.4 In any event, the result of this con-
tact was Martin's letter of 22 December, already noted
herein, which referred only to Brown. McMahan further
testified that sometime between 'Christmas and New
Year's, he personally met with' Martin, and Martin told
him that ' subsequent to Brown's- discharge by Papco, he
had been rehired by Nations without Martin's knowl-
edge, that' that was one reason Nations was no ^ longer
with Papco, and that under no circumstances should
Brown be referred to Papco.
With respect to the failure to refer Brown to the Gen-
eral Contracting job on 10 January rather than the two
employees who were on neither A or B list, McMahan
explained that the men requested and referred were "rod
men," and that while other ironworkers may have had
experience.in such work, age and inactivity would ad-
versely affect their speed in the work. He further ex-
plainedthat the one man in the -hall on that day did not
do rod work anymore. In connection with the referrals
to Huber Construction Co. on 15 January, McMahan re-
lated that the men sent were "permit" men requested by
the employer and paid at less than the journeyman rate.
One exception was a referral given to Isaac Blue. who
came in the hall. after-referral hours. McMahan gave the
referral to Blue explaining that the job was not certain
and requested that Blue check back-with- him that after-
noon. The job did not materialize, and Blue never re-
ported to the job., McMahan also testified that in late
January he made two'referrals of men not on the referral
lists to South Carolina' Electric and ' Gas -Company. ^ The
two men involved had already been employed by the
company and the company had requested the' referrals of
the men by name . McMahan denied that he failed to
refer Brown for any discriminatory reason.
According to McMahan, he made no . referrals in the
hiring hall after 29 January when he stepped down from
his position. Notwithstanding the fact that -McMahan's
name continued to;be signed to referrals by the Union's
office secretary until sometime in March, Simmons as-the
acting business agent_ was responsible for referrals after
29 January. - ` -
Like McMahan, "Simmons denied that any failure to
refer Brown was based on unlawful considerations.
Rather; 'Simmons testified that Brown was not"referred
after 29 January because'he was not in the-hall when re-
ferrals were made, because the-requested referrals sought
apprentices rather than journeymen, or' because'the con-
tractor required a particular skill such as "rod" work.
Simmons testified that he has • known Brown . to turn
down - rod work. Brown - in rebuttal contradicted Sim-
mons on this point. -
With respect to particular referrals, Simmons related
that the referrals to Tidewater Construction on 4 March
were for rodmen and a reinforcing foreman. Brown was
not referred- because he did structural work, according to
Simmons. Simmons admitted, however,-that journeymen
ironworkers' such as.,Brown were capable of doing rod
4 Why McMahan would be concerned with such people other than
Brown is not clear,- for-none -- of. the other employees referred to - were
shown to have sought- employment through the Union to any employer
during any material time herein" -
work. Simmons also testified he did not refer' Brown to -
the Bestel and S & W jobs since Brown- was not in the-
hall at the time of-the referrals. I-However, he did not
deny that Brown had talked to him about Brown's refer-
ral to S & W by the Federal Job Service, nor did he
deny Brown's claim that he had given Brown assurances
that the union steward on the--job would give him a
union referral. However, he did not explain why Brown
could have been denied the-job on the basis that the
Union had taken care of it.
According to Simmons, the three men whom he re-
ferred to the Huber Construction jobs on 19 March were',
referred, in effect, because they had worked on the job -
before and had security clearances 'since the job was on a
missile base. While acknowledging that the men had -
been sent from the Union's Columbia office for the jobs,
Simmons was uncertain whether they. had previously
been on an out-of-work list in Columbia or even if Co-
lumbia had an out-of-work list. He appeared to_ concede,
however, that the referrals had been arranged, or made
by the Columbia office. - :
B. Conclusions -
Having credited Brown, Lee, and Martin -concerning -
the circumstances -surrounding McMahan's assault on-
Brown on 18 May; - I conclude that by such assault Re-
spondent violated Section 8(b)(1)(A) of,the'Act _ as al-
leged. It is clear that the assault was a'product of McMa-
han's animosity toward Brown growing out of Brown's
propensity to question, criticize, or oppose McMahan's
conduct of Respondent's business. Such -animosity was
first' demonstrated in the findings of Judge Holley in the
earlier case by Brown against Respondent. The assault
followed a` union meeting when Brown had questioned
and' opposed Respondent's proposal to dispose of an
automobile. It more immediately followed a discussion
between Brown and Veseley in which McMahan inter-
vened concerning Brown's raising issues. at union meet-
ings . There was no evidence that Brown's actions at the
meeting were based on anything other than good-faith
concerns, and I find his dissident actions were therefore
protected under the Act. Boilermakers Local 686 (Boiler.
Tube Co.), 267 NLRB 1056 (1983). Based on the credited
testimony, Brown did nothing by word or gesture which
would remove him from the, protective mantle of the
Act. Thus, I find McMahan's assault on Brown was'
prompted by his -protected activity - and was coercive
within the meaning of Section 8(b)(1)(A) of the Act.
- The consolidated complaint alleges also that McMahan
threatened to assault Brown -but alleged it - occurred the
day following' the actual . assault .' No evidence -was sub-
mitted regarding any matter occurring the day following
the - assault. • From - the General Counsel's opening re-
marks, I conclude that he- contends the threatened assault
took place on the same day-as the assault. However, it is
unclear, from the General Counsel's opening remarks or
brief, whether he is relying on McMahan's threat -made
in the 18 May` union meeting that he would get-Brown
or McMahan's remarks after the assault asking, in effect,
if Brown wanted to be hit with McMahan's right hand.
Brown's credited "testimony about McMahan's remark
IRON WORKERS LOCAL' 601 (PAPCO, INC) 1279
during the meeting was not specifically " denied by
McMahan, and McMahan admitted the remark attributed
to him following the physical assault . Thus, crediting
Brown and considering McMahan's• admission, I find
both events were factually established, and I find both -
were threatening and coercive and in violation of Sec-
tion 8(b)(1)(A).
The refusal to refer Brown is alleged- only as a viola-
tion of Section 8(b)(1)(A) and is based on the proposition
that the Union fails to fairly represent its members when
it operates an exclusive hiring hall and make referrals
without regard to objective criteria. Polis Wallcovering
Co., supra. Evidence of an intent to` discriminate is not
necessary to establish the violation. Where discrimination
in operation of an exclusive hiring system is proven, a
union violates Section 8(b)(2) of the Act as well as Sec-
tion 8(b)(1)(A). See, e.g., Longshoremen ILA Local 1408
(Jacksonville Maritime Assn.), 258 NLRB 132 ( 1981),
enfd. 705 F.2d 1549 (11th Cir. 1983). And discriminatory
motive may be inferred from all the surrounding circum-
stances absent any credible showing by the union of a le-
gitimate ,justification for facially discriminatory referrals.
Iron Workers Local 798 (AGC of Mobile), 272 NLRB 679
(1984). It is essentially actual discrimination that the
General Counsel argues provides the basis for McMa-
han's refusal t6 refer Brown to the Papco job.
Actual discrimination is supported not only by McMa-
han's hostility toward Brown as revealed in this record
but also what circumstantially appears to be a conscious
effort on the part of McMahan to avoid referring Brown
to Papco. I find unpersuasive and incredible McMahan's
testimony to the contrary. I also find his uncorroborated
and self-serving testimony concerning the preparation of
the 26 November letter to Kelly to be incredible. An ar-
rangement by which a union undertakes to identify for
an employer those former employees whose records the
employer has marked "not for rehire" in itself smacks of.
a breach of the union 's duty of fair representation But
beyond that, other circumstances suggest that the alleged
26 November letter even if it was in fact mailed to
Papco was a sham having no purpose other than to
avoid referral of Brown Thus, although McMahan knew
Brown was seeking referral to Papco on 26 November
and saw him in the hall that date, 'he did not tell him that
he was not eligible for referral until the following day. It
is reasonable to infer that since McMahan did not tell
Brown on 26 November that he could not be referred to
.Papco, there was no 26 November letter in existence or
contemplated: at the time. Even McMahan does not con-
tend that Brown.was specifically identified at the prejob
conference as an individual Papco did not want back.
There is also evidence indicating that Kelly never re-
ceived the Union's 26 November letter which, contrary
to McMahan's testimony,, d:d not ask for a response.
Thus, Kelly on 12 December executed a statement stat-
ing in effect that he had no objections to Brown's refer-
ral.5 It would seem that a reasonable - and logical re-
5 Kelly's 8 April statement given the Union to the effect that he had
no knowledge of Brown's prior problem with Papco at the time of his 12
December statement further supports the conclusion the. 26 November
letter was never sent
sponse to Kelly's statement by a business agent not in-
clined to discriminate would be to accept it at-face value
and refer Brown to the next available Papco job Yet,
McMahan's response to this information was not a subse-
quent referral even though referrals were made to Papco
on 17 and 19 December of people who were neither in
the hall on those dates or ahead of Brown-on the A list,
but an attempt to, in effect, have Kelly's position re-
versed. McMahan's testimony on this subsequent contact
with Papco was evasive but ultimately ended with what
must be viewed a completely unreasonable explanation,
i:e , that he wanted to see if Papco would take back the
others mentioned in the attachments to the 26 November
letter when there was no contention that any of the
others -mentioned were in fact seeking referrals to Papco
or any other employer through the Union's hiring hall.
Even if McMahan's 26 November letter -was actually
sent his discriminatory intent _in including Brown in those
not to be considered for rehire in that letter is revealed
by McMahan's admitted knowledge that he knew that
Brown had been hired twice by Papco subsequent to his
1975 discharge by Papco. Accordingly, Papco itself had
disregarded Brown's 1975 discharge as a basis for refus-
ing to rehire him. I again do not credit-McMahan's self-
serving , and uncorroborated testimony that Papco's
Wilbur Nations told 'him. Brown's subsequent hire had
been a mistake. In this regard, it is to be noted that -
Brown had been promoted to foreman during his last
period. of employment with Papco shortly before the re-
duction in force which resulted in his: termination. Such
promotion is inconsistent with a belief-that his hiring was
a "mistake." But even if Nations had made such a state-
ment to McMahan, it would not have provided a basis
for McMahan's disregarding Brown's subsequent -hirings
by Papco for his records after those periods of employ-
ment.were not marked "not for rehire." Only McMa-
han's' demohstrated_hostility toward Brown and discrimi -
natory motivation can explain McMahan's persistence in
avoiding referral of Brown to Papco.
I conclude that Respondent's failure to refer Brown to
Papco constituted unreasonable, arbitrary, and invidious
action in breach of its duties of fair representation in vio-
lation of Section 8(b)(1)(A) of the Act. The presence of
actual discriminatory motivation in the failure to refer
Brown would appear to provide the basis for a finding
that such failure also constituted a violation of Section
8(b)(2) of the Act. However, the General Counsel does
not urge the finding- of an 8(b)(2) violation: Nor, does Re-
spondent's brief argue the -point. Accordingly, and be-
cause the order. herein provided for the violations of Sec-
tion 8(b)(1)(A) found-will adequately remedy the harm
caused. Brown, no.violation of Section, 8(b)(2) of the Act
will be considered herein. -
McMahan's refusal to refer Brown extended to em-
ployers other than Papco. The two individuals referred
to General Contracting on, 10 January by McMahan
were on neither the A -nor the B list . McMahan's argu-
ment that the men were sent, out as "rodmen" is not a
valid defense in view of Brown's credible testimony that
he was experienced in =rod . work and able to do such
work. Brown, by his position on the A list and by virtue
1280 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the. referral rules, I conclude, would have been re-
ferred in the absence of either discrimination or depar-
ture from the referral rules. - . - ,
Again on 15 January, McMahan gave a•referral.to an
individual, Isaac Blue, to Huber Construction Co. Brown
was ahead-of Blue on the A list and since the referral
had been given outside the referral hours the fact that
the individual was in the union hall at the time the refer-
ral was issued was of no-consequence under the Union's-
rules .6 McMahan testified that the job did not actually
materialize.- Even if that is true, the incident clearly re-
veals a continued effort to avoid a referral of Brown and
to ignore the established referral procedures. -
I find no merit-in the-General Counsel's argument-that
Brown should have been referred to the South Carolina
Gas and Electric jobs on 21, and 28 January rather than
the two individuals 'actually referred who had been, on
neither- the , A or B, lists. Brown, under the hiring hall
rules, had lost his - place on, the A list by 21 January for
failure to update his position and did not again sign the-
list until 4 February.'-There is nothing in the hiring hall
rules to, support the General Counsel's argument that' pri-
ority should have- been given Brown for -having been
listed at one time over persons never having been on 'the
list.
Like McMahan, Simmons appears to Shave had little
regard for the established procedures in making referrals.
He referred three men to Tidewater on .4 March who
were neither_ • in the-hall nor ahead of Brown on-,the'A
list. And-on 13 and 26 March, he again referred two men
to the same employer although -both men had not been
on either the A or. B list on ,the dates of referral. ' Sim-
mons' only explanation was that the men referred' were
rodmen. As already indicated Brown could do rod work.
At best, Simmons was exercising his own discretion in'
choosing who to refer. In disregarding referral proce-
- dures, I conclude that Simmons violated Section 8(a)(1)
as alleged. " -.
Simmons' referral` of the three individuals from Colum
' bia to Huber on -19 March was not, in my opinion, ade-
quately explained' by "Simmons. The three had not been
on the A list prior to 19' March, and Simmons' testimony
-was vague regarding how they had been sent from Co
lumbia for the jobs. There was no contention that they
were requested by name, nor does it appear that they
were referred because of a special skill. While Simmons
alluded to their possession of security clearances, it, is not
clear that such clearances were a condition of employ-
ment . Other referrals to Huber were "not shown -to re-
quire security ,clearances: Simmons could not provide
copies of their referral slips to the General Counsel: Sim-
mons' testimony that the referral of the three was ar-
ranged by Respondent's- office in' Columbia prompted a
6, At one point in explaining the 15 January referral, McMahan testified
that he referred people "strictly out of the hall,"'i e, those who were
physically present. If it were true it would
'
constitute a violation of Sec
8(b)(1)(A) as an unannounced departure from the Union's referral proce-
dures and would make the A list useless See Operating Engineers Local
406 (Ford. Davis & Bacon Construction), 262 NLRB 50 (1982) However,
McMahan's testimony on this point is contradicted by Respondent's own
referral records which serve to further demonstrate McMahan's unreliabi-
lity as a witness -
whole. new set of questions by the General Counsel that
Simmons was unable to answer about how referrals out
of the Columbia office fit into Respondent's referral
process. On this evidence, I must conclude that the pref-
erence to referrals given the three men from Columbia
has not been-demonstrated- by'-Respondent'to have been
in accordance with its announced hiring hall procedures.
The General Counsel's prima facie case based on the ap-
parent out of order referrals has not been rebutted. I
conclude that such referrals were made outside such pro
cedures 'and were therefore in violation of Section
8(b)(1)(A) of the Act as urged by the General Counsel.
On the other'hand, contrary to the General Counsel's
arguments , Simmons ' referral of four men to Riley
Stoker on 25 February appears to have been consistent
with hiring hall rules. All four were on both 'the A and
the B lists. -
The record -reveals that between ' 11 November and 14
March Brown signed or updated his position on the A
list five times and was never referred. No other- individ- .
ual ' signed the same list over twice without being re-
ferred. Nevertheless, except in the instances noted above,
I conclude that the record. reveals no other occasions
when it appears that Respondent's failure to refer Brown
was based on Respondent's hostility to Brown or was in-
consistent with its hiring hall procedures-or otherwise in
breach of Respondent's duty of fair representation.?
CONCLUSIONS OF LAW,
-1. Papco is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act. -
, 2 Respondent International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-CIO,
Local 601,,-is a labor organization within the meaning of
Section 2(5) of the Act. ,.
3. By threatening- with physical assault and by -phys-
_ically assaulting James L. Brown, Respondent violated
Section 8(b)(1)(A) of the Act.
4. By refusing to refer James L. Brown to employment
with Papco and other employers with whom Respondent
has collective-bargaining agreements, Respondent violat-
ed Section 8(b)(1)(A) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section -2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices,' I shall recommend that it cease
and desist therefrom and take certain affirmative action
which will effectuate the policies of the Act. -
Since this case represents the second time that Re-
spondent has engaged in unlawful conduct violative of
the Act, it has demonstrated a proclivity to violate -the
Act, and because the conduct involved herein, specifical-
While not every scrap of evidence produced at the hearing has been
detailed in this decision , that which has not been -included has been care-
fully considered and weighed To the extent that any evidence not re-
ferred to herein might be viewed as rebutting the findings of fact made,
such evidence has not been overlooked Rather, it has been considered
and rejected as incredible or lacking in probative value Walker's, 159
NLRB 1159, 1161 (1966) . -' -
IRON WORKERS LOCAL 601 (PAPCO, INC) - 1281
ly -the-.physical assault on Brown, constituted a particu-
larly serious unfair labor practice demonstrating a gener-
al disregard for employees' fundamental rights, the cease-
and-desist order recommended will be a broad one re-
quiring Respondent to cease and desist from infringing in
any other manner on rights guaranteed employees by
Section 7 of the Act. - See Longshoremen Local 1180
(Lake Charles Stevedores), 266 NLRB 484 (1983); Hick-
mott Foods, 242 NLRB 1357 (1979).
-Having found that by its unlawful -refusal to refer
Brown to a job beginning 26 November with Papco and
thereafter with other employers, it shall be recommended
that Respondent make Brown whole for any loss of earn-
ings suffered by him as a result of Respondent's unlawful
refusal to refer him. See Painters Local 1178 (Roland
Painting), 265 NLRB -1341 (1982). Backpay and interest
is to be computed in the manner prescribed in, F. W.
Woolworth Co., -90 NLRB 289 (1950), and Florida Steel
Corp., 231 NLRB 651 (1977).8
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed9 •
ORDER
The Respondent, International Association of Bridge,
Structural and Ornamental Iron Workers , AFL-CIO,
Local 601, Charleston , South Carolina , its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Threatening to assault or assaulting James L.
Brown or any of its members for being critical of the
Union or the way it operates.
(b) Refusing to refer employees or applicants for em-
ployment through its. employment referral system in dis-
regard of the -provisions of its collective-bargaining
agreements with various associations and employers or in
disregard of its published internal rules and regulations
regarding such referrals.
(c) In any other mariner restraining or coercing em-
ployees 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) Make James L. Brown whole for any loss of earn-
ings he may have sustained because-of Respondent's un-
lawful failures to refer him for employment by paying
him a sum equal to what he would. have earned absent
the unlawful conduct, plus interest, as provided in the
section of this decision entitled "The Remedy."
(b) Preserve and,,on 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.
(c) Post at its business offices, meetings halls, and dis-
patch halls copies of the attached notice marked "Ap-
pendix."1O Copies of the -notice, on forms- provided by
the Regional Director for Region 11, after being signed
by the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous -places
including all places where -notices to members are cus-
tomarily posted. Reasonable steps shall be taken by the -
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
8 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
9 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
. 10 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "