248 N.L.R.B. 21 (N.L.R.B. 1980)

Ironworkers Local 483

National Labor Relations Board - Board DecisionsMar 3, 1980

248 N.L.R.B. 21 (N.L.R.B. 1980)

IRONWORKERS LOCAL 483 21 International Association of Bridge, Structural and Ornamental Ironworkers, Local 483, AFL-CIO and John A. Craner, Attorney and Rudy Di Giorgio and Building Contractors Association of New Jersey, Party to the Contract International Association of Bridge, Structural and Ornamental Ironworkers, Local 11, AFL-CIO and John A. Craner, Attorney and Building Contractors Association of New Jersey, Party to the Contract. Cases 22-CB-3301, 22-CB- 3514, and 22-CB-3302 March 3, 1980 DECISION AND ORDER By Chairman Fanning and Members Jenkins and Penello On August 20, 1979, Administrative Law Judge Melvin J. Welles issued the attached Decision in this proceeding. Thereafter, Respondents filed ex- ceptions and a supporting brief, and a request for oral argument. Respondent Local 483 also filed a motion for remand to the Regional Director for the taking of further evidence. The General Counsel filed an answering brief and the General Counsel and Charging Party filed oppositions to Local 483's motion for remand to the Regional Director. All parties filed a joint motion to transfer the cases to the Administrative Law Judge for clarification of his Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, 2 and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and I Respondent Local 483's motion for remand to the Regional Director for the taking of further evidence is denied as there is no adequate show- ing that the proffered evidence is newly discovered or previously un- available. Respondents' request for oral argument is denied because the record, the exceptions, and the briefs adequately present the issues and the posi- tions of the parties. The joint motion to transfer the cases to the Administrative Law Judge for clarification of his Decision is denied as lacking in merit. 2 In the case of discriminatee Michael Cheselka, the Administrative Law Judge listed two different sets of figures concerning instances in which he was bypassed in favor of Local 483 members following his July 26, 1976, signing of the register. A review of the referral register indi- cates that he was bypassed by five members listed as "recalled," and two others listed as "requested, letter in file" 248 NLRB No. 6 hereby orders that the Respondents, Local 483 and Local 11, International Association of Bridge, Structural and Ornamental Ironworkers, AFL- CIO, Patterson, New Jersey, and Bloomfield, New Jersey, respectively, their officers, agents, and rep- resentatives, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE MELVIN J. WELLES, Administrative Law Judge: This case was heard at Newark, New Jersey, on various dates in 1977 and 1978, based on charges filed August 10, 1976 (amended on August 18, 1976), and March 31, 1977 (amended that same day), and a consolidated complaint issued April 19, 1977, alleging that Respondents, Local 483 and Local 11, International Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO, vio- lated Section 8(b)(1)(A) and (2) of the Act. Thereafter, the General Counsel, Respondents, and the Charging Parties' filed briefs. Upon the entire record in the case, including my ob- servation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER AND THF lABOR ORGANIZATION INVOLVED Building Contractors Association of New Jersey, a New Jersey corporation, is an association of employers engaged in construction work in that State. Its members have for many years delegated to the Association author- ity to bargain for them. During the year before issuance of the instant complaint, members of the Association have received goods and materials at their construction sites in New Jersey valued in excess of $50,000 from points outside the State of New Jersey. I find, as Respon- dents admit, that the Association is an employer engaged in commerce within the meaning of the Act. I find also, as Respondents admit, that Locals 483 and 11 are labor organizations within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues; Background These consolidated cases arise out of the operation of hiring halls of two Ironworkers locals, Local 483 and Local 11, during a period from February 10, 1976, through April 19, 1977. The complaint alleges that these Locals discriminated against 24 individuals by consistent- ly preferring members of the Locals over them in refer- rals to ironworker jobs in the areas of the Locals' juris- I The two Charging Parties in this case are Attorney Craner and iron- worker Rudy DiGiorgio. Craner's charges were filed on behalf of some 23 ironworkers allegedly discriminated against. who are named as such in the complaint. DiGiorgio's later charge was filed on his own behalf For convenience sake, the term "Charging Parties" will he used throughout this Decision to refer to all the individuals named in the complaint, rather than to Attorney Craner and ironworker DiGiorgio a' such IRONWORKERS LOCAL 483 1 _ . 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD diction. Both Locals are members of the District Council of Northern New Jersey, International Association of Bridge, Structural and Ornamental Ironworkers, which during all relevant periods had a contract with the Build- ing Contractors Association containing an exclusive hiring hall provision.2 The consent decree which was in- corporated by reference into the District Council-Associ- ation contract was issued by the United States District Court for the District of New Jersey in a Title VII action brought against, inter alia, the Northern New Jersey District Council of Ironworkers and its five locals, including Respondents herein. The consent decree provides that the referral system shall be operated by the Locals on a "nondiscriminatory basis without regard to membership or non-membership in the Union, and there shall be no discrimination against any person by reason of race or color." The consent decree, however, permits the Unions to refer individuals out of chronological order in the following instances: (1) the contractor spe- cifically requests an applicant, by name, who had previ- ously signed the referral list; (2) the applicant is a trainee or apprentice within the geographical jurisdiction of the local union; (3) the contractor requests a specific individ- ual to serve as foreman; (4) senior experienced applicants designated by the local union to act as stewards; (5) mi- norities requested by contractors who are obligated to meet affirmative action requirements imposed by any governmental agency; and (6) employer requisitions com- municated during other than normal referral hours or on Saturdays, Sundays, or holidays. Within the context of the contract and the consent decree, each Respondent has maintained referral regis- ters. Each applicant for referral is required personally to sign these registers, indicating thereon the date of sign- ing, his union affiliation, and the classifications for which he wishes to be referred (and apparently deems himself qualified). The respective business agents of the two locals will call out the names of applicants who are being referred, who will then either go to the job or, if absent when called, be so marked. At the end of the job or, if marked absent, at any time thereafter, an applicant re- signs the register in the same manner in order to be eligi- ble for another referral. 3 An applicant calling in advance to inform the Local 483 business agent that he will not be at the hiring hall on a particular date will have that date marked on the register, so that his name will not be called on that date, and also he will not lose his place on the register. When an applicant is referred out of turn (before an- other applicant who signed the referral register first), there would often appear in the "remarks" column of the 2 This provision was as follows: 15.1 Every Employer bound hereby agrees that he will recruit all employees covered hereby exclusively through the several hiring halls operated by the Union and/or its Locals. The said hiring halls shall be operated by the Union and its Locals in a non-discriminatory manner and on a non-discriminatory basis in accordance with the said Decree in U.S. v Plumbers Local 24, et al., Civil Action No. 444-71 etc. . . 15.2 The said hiring halls shall be operated in accordance with the provisions of said decree mentioned in the preceding Article. 3 Local 483 did not count 1-day jobs against an applicant, keeping him in the same place oiln the register when that occurred. referral register a notation as to the reason for the early referral. The reasons listed are "requested" (at times stat- ing that there was a letter in the file indicating such re- quest), "recalled" (Local 11 apparently used the phrase "returned to job" to indicate recalled), and "steward." Respondents introduced into evidence many letters from contractors requesting specific individuals. In many in- stances, including some where the "remarks" column in- dicated that such a letter was on file, there was no such letter introduced at the hearing. And none of the "re- called" or "returned to job" categories stated reasons for early referral were supported by any specific evidence; in each instance the reason stated stands by itself as to these two categories. There is now Board precedent, some five cases having been issued against various New Jersey Ironworkers locals since the hearing in the instant case, covering vir- tually all the disputed legal issues in this case. 4 Thus, the Board has concluded, in agreement with the General Counsel's position in this case that (1) the use of "re- quested" referral designations to justify a member's refer- ral ahead of a nonmember is a valid defense only if sup- ported by a letter in the file or specific objective evi- dence of some other sort (232 NLRB 520, 521 and 235 NLRB 232, 233, fn. 7); (2) "call back" or "recalled" is not a defense as "there is no such excepted category pro- vided for in the consent decree" (235 NLRB 211, 212 ); (3) use of the "steward" designation to refer a highly dis- proportionate number of union members out of turn could not be justified on the basis of a union being enti- tled to have its own members as stewards (235 NLRB 1511, 1512-13), and that such disproportion, absent spe- cific objective evidence to show that the preferences were based on germane and relevant considerations, such as special training programs and information received at union meetings being available solely to union members, was sufficient to establish the use of the "steward" ex- ception as a pretext "to cover a discriminatory prefer- ence for . . . members" (id. at 1513); (4) "all other non- member applicants who were similarly situated" to dis- criminatees named in the complaint should be made whole in the same manner as named applicants (all five cases cited above, and see in particular 235 NLRB at 213); and (5) the formula for determining backpay for discriminatees, both named and unnamed in the com- plaint, be based on the overall earnings of all applicants at the particular hiring hall, as set forth more fully below (235 NLRB at 1513-14). I am, of course, bound by the Board precedents cited, and there is accordingly no real need to discuss in any depth these legal issues, except to the extent where facts 4 These cases are International Association of Bridge. Structural & Orna- mental Ironworkers, Local 373. er al. (Building Contractors Association of New Jersey). 232 NLRB 504 (1977); International Association of Bridge. Structural & Ornamental Ironworkers, Local 45 (Building Contractors Asso- ciation of New Jersey), 232 NLRB 520 (1977); International Association of Bridge, Structural & Ornamental Ironworkers. Local 45 (Building Contrac- tors Association of New Jersey), 235 NLRB 211 (1978); International Associ- ation of Bridge, Structural & Ornamental Ironworkers. Local 373 (Building Contractors Association of New Jersey). 235 NLRB 232 (1978); and Interna- tional Association of Bridge. Structural & Ornamental Ironworkers Local 480, AFL-CIO (Building Contractors Association of New, Jersey), 235 NLRB 1511 (1978). IRONWORKERS LOCAL 483 23 presented here may occasion some additions or modifica- tions, and to the extent that arguments are raised by Re- spondents here that have not previously been considered. There remains the fact-finding task necessary to deter- mine whether and to what extent the various aspects of this case fit the applicable precedents. It is necessary also to consider a contention raised by the Charging Parties that Respondents' failure to enforce the exclusivity (within the guidelines of the contract and the court's decree) of the hiring halls itself was designed to permit their members to obtain jobs at the expense of non- members. B. The Referral Registers Following is an analysis of the referral registers of the two Respondent Locals with respect to all named discri- minatees alleged in the complaint. As to each individual, I list those instances where he was bypassed5 by a member of either Respondent Local, totaling them in terms of the reason (or lack thereof) stated, but not in- cluding any instance where a man was specifically re- quested and there is a letter in evidence supporting that request, nor any "steward" justification. There is also in- cluded a brief summary of any special defense advanced by Respondents with respect to each individual. For convenience sake, I have listed the alleged discriminatees in the order in which Respondents deal with them in their brief, taking first the applicants using Local 483. (I) Michael Cheselka: Local 483's referral registers do not show any Local 483 member being preferred over Cheselka with no listed explanation. The registers do show that he was bypassed following his July 26, 1976, signing by four members listed as "recalled," six mem- bers listed as "requested," and four more members listed as "requested, letter in file," but with no such letter pro- duced by Local 483. The referral registers do show that Cheselka was bypassed by five Local 483 members listed as "recalled," and by two others listed as "requested, letter in file," but with no such letter produced by Local 483. These five instances occurred following Cheselka's signing the register on July 26, 1976, the only time he signed the register during the period covered by the alle- gations herein. Cheselka himself testified, however, that he left the area August 2, 1976, a week after he signed the referral register and did not return for more than 6 months. And Respondent Local 483 submits that the charge as to him is "therefore, a mere sham and should be summarily dis- missed." As the first bypassing of Cheselka occurred with the referral of Local 483 member J. A. Lauro on August 2, the day Cheselka left the area, it is clear that he suffered no financial losses as a result of Local 483's actions. On the other hand, it is evident that Local 483 did not know at the time that Cheselka was no longer there, as they finally called him for a referral on Septem- ber 2, at which time he was, of course, absent. There is accordingly a technical violation as to him (other consid- ' "Bypassed" as used herein indicates that a member of Local 483 or of Local 11 was referred ahead of the particular Charging Party even though the member signed the referral register after the Charging Party. erations aside), but he clearly would not participate in any backpay award. (2) Anthony Cucci: Local 483's referral registers show that Cucci was bypassed a total of four times, once with no explanation at all listed, once by a member listed as "recalled," and twice by members listed as"requested." Local 483 argues that his charge is also "a sham," based on Business Agent Templeton's testimony that Cucci was working in Indiana and Illinois during almost the entire period, and would sign the referral register only when visiting the area, never staying around the hiring hall to await referral. The fact remains, however, that he was bypassed on the four occasions mentioned, and, like Che- selka, was called for referral, although absent, after sign- ing the register. To the extent that Respondent Local 483 can show at the compliance stage, if any, of this pro- ceeding that Cucci was not in fact available for employ- ment on any of the four occasions that he was bypassed in terms of what the referral registers show, it should be permitted to do so. (3) Jack Hespelt: Jack Hespelt did not testify in this proceeding. The referral registers, however, show that he was bypassed by Local 483 members on eight occa- sions, six times by members listed as "recalled," and twice by members listed as "requested, with a letter in the file," but with no such letters produced at the hear- ing. Respondent claims that Hespelt was not entitled to referral from Local 483 (or from Local 11) because he signed the registers of each Local at the same time, in violation of a provision of the consent decree providing: "No applicant for referral shall register for referral in more than one Local at one time." The Board specifical- ly rejected an identical argument in 235 NLRB at 212, fn. 5, stating: It is clear that it would have been futile for Gilbert to rely solely on Respondent for employment op- portunities in view of its consistent pattern of dis- crimination against him and other nonmembers. In effect, Gilbert was attempting to mitigate the loss of earnings he suffered during the backpay period by reason of Respondent's discrimination against him. Furthermore, the record contains no evidence that Respondent had knowledge prior to the hearing that Gilbert was seeking referral at another hiring hall. Respondent therefore has not affirmatively demonstrated that such a consideration was a basis for its failure to refer him. For these reasons, we conclude that Gilbert's effort to locate employment opportunities elsewhere does not preclude our find- ing that Respondent committed unfair labor prac- tices as to this individual .... Substituting Jack Hespelt's name here for Gilbert's in that case is mandated by the facts here presented. (4) Eitel Hespelt: Eitel Hespelt is shown on Local 483's referral registers to have been bypassed four times by union members; once with no explanation at all listed, twice with "recalled" stated as the reason, and once with "requested-letter in file" stated, but without such a letter produced. He, too, did not testify at the hearing herein, and he too was "guilty" of a "double signing." IRONWORKERS LOCAL 483 3 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD For the reasons stated with respect to Jack Hespelt, this does not constitute a defense. (5) Russell Hrenekno: The referral registers show that Hrenenko was bypassed by Local 483 members more than 20 times. Six of these were without any explanation noted; nine had "recalled" listed; and there were some seven "requested" reasons, most of which also stated "letter in file" but without such letters having been pro- duced." Respondents' defense as to Hrenenko is solely that the last time he signed the register was July 29, 1976, and "Since that time he has been steadily employed in Pennsylvania." The referral registers show, however, that he signed June 2, 1977, and was bypassed twice before being referred to a job. To the extent that he did not register between July 1976 and June 1977, he would, of course, not receive any backpay resulting from this proceeding. (6) George Janacek: Janacek was bypassed twice, once with no explanation stated, and once with "recalled" listed as the reason. Respondent adverts to the fact that Janacek "retired in September 1976" as its only "de- fense." Manifestly, he would not be entitled to backpay for any periods during which no discrimination against him is shown or, of course, after he may have taken him- self out of the field by retiring. (7) William Wharrie: Wharrie was bypassed 11 times, 7 with "recalled" listed as the reason, and 4 times with "requested," 3 of the latter stating that a letter was on file, but with no such letter produced. Respondent Local 483 argues that his "action should also be summarily dis- missed," because "he did not appear at trial to testify or to be cross-examined." As the discriminations against him are prima facie established by Respondent Local 483's own records, his, or any other applicants', failure to testify is not a basis for dismissal. Respondent would be afforded an opportunity to show that he was in fact unavailable for employment (as it did in Cheselka's case, for example) in the compliance stage of this proceeding. (8) Rudy Pavesi: The referral registers of Local 483 show that Pavesi was bypassed 14 times, 4 of them list- ing "recalled," and 10 listing "requested" as the reason. Four of the latter indicate a letter in the file, but without such a letter having been produced at the hearing. Re- spondent claims, in defense, that he was a "malcontent," that he obtained a particular job by himself, that it gave him "every possible consideration and every possible benefit of the doubt," but that he "did nothing but take advantage of his situation." Respondent also asserts that Pavesi should be "discredited." None of the aforesaid reasons is relevant to the objective facts shown by the records that he was bypassed without any legitimate ex- planation. Even discrediting his testimony totally would not alter that fact. (9) Vito Chrisliano: Christiano was bypassed, as shown by Local 483's referral registers, a total of nine times. Three of these listed "recalled" as the reason, and six listed "requested," one of which indicated a letter was on file, but with no letter produced. Respondent points to the fact that Christiano testified to getting calls direct- 6 Local 483 did produce many letters of request from contractors The summaries here do not include any "requested" designations where such letters are in evidence. ly from contractors to report to jobsites, and to securing his own job with one contractor. Respondent also points out that the evidence indicates he worked for one com- pany for 110 hours, with no entry in the referral registers for that job. None of these facts minimizes the discrimi- nations shown to have been practiced against him, al- though, of course, any earnings from such jobs would be deducted from any gross backpay that might be due Christiano. His testimony about receiving calls from con- tractors and getting jobs on his own will be considered in another connection below. (10) Richard Clark: Clark is shown by the referral eg- isters of Local 483 to have been bypassed 13 times. One of these times has no listed explanation, eight of them show "recalled" in the remarks column, and four show "requested," with one of the latter indicating a letter in the file, which was not produced at the hearing. Respon- dent mounts perhaps its most vigorous defense with re- spect to Clark. In brief summary, Respondent claims that Clark was also a "chronic malcontent," that he attacked Business Agent Templeton with a bat, that he was fired by contractors on at least three occasions, that he was called directly at home by contractors for jobs, but re- mained on the referral register while employed at at least one of them, and that he "should have been bounced from the Local 483 referral register long ago," but the Local "continued to extend to Clark all the rights and privileges enjoyed by everyone else utilizing the hiring hall-no better or no worse." Whether Respondent could legitimately have barred Clark from using the hiring hall for the type of actions and conduct he alleg- edly engaged in is not before me. For Respondent, as it stated, did not bar him. However, he did not receive "all the rights and privileges enjoyed by everyone else." He is shown rather to have been bypassed by Local 483 members. The fact that other nonmembers received the same discriminatory treatment is not a defense. (11) Nicholas Philipchuk: Philipchuk is shown by the referral registers to have been bypassed eight times, once with no explanation, and seven times with "requested" listed as an explanation, three of the latter indicating that a letter was on file, but having no supporting letter pro- duced. Respondent defends as to him by pointing to the fact that, as Philipchuk testified, he obtained a job in Local I 's territory on February 17, 1977, working until March 28, and that he "did not know" whether he so in- formed Business Agent Templeton. In fact he did not, as Templeton testified, and as indicated by his still being on the register and called (being marked absent) on March 2. Although it is clear that Philipchuk should have so in- formed Templeton, there is no instance of discrimination attributable to that period of time, that is, to Philipchuk's December 6, 1976, signing of the referral register. Local 483 also points to a "late call" referral to Philipchuk on October 7, 1976, which Philipchuk turned down after reaching the jobsite on the ground that the job was "too high." Again, there is no instance of discrimination ap- pearing in the referral registers at that time, and there- fore no basis for denying Philipchuk any remedy to which he is entitled. (12) Antonius Winkens: The Local 483 referral registers show a total of five bypassings of Winkens, one with no IRONWORKERS LOCAL 483 25 explanation at all, two with a "recalled" explanation, and two listed as "requested," with no letter produced as to the one of these stating that a letter was on file. Respon- dent states as to Winkens (and also as to Clark and Phi- lipchuk) that the fact that charges as to him were with- drawn at the hearing in 232 NLRB 504 before Adminis- trative Law Judge Ricci in some manner constitutes a defense here. Whatever reason may have existed for the withdrawals at that time, which covered a different period than does the instant proceeding, there is no basis for refusing to find discrimination against Winkens, Clark, or Philipchuk when the evidence here establishes such discrimination. Respondent's statement that "review of the referral books reveals not one single instance of discrimination against Winkens" does not square with the five bypassings shown by these books-three of which do not even have a legitimate reason even stated (in terms of the exceptions contained in the consent decree). (13) Henry Berghuys: Berghuys was bypassed, as shown in the referral registers, a total of 16 times. Of these, I had no listed explanation; 5 indicated "recalled" as the explanation; and 10 stated "requested," with 7 of this group indicating a letter on file, but with no such letter produced at the hearing. Respondent Local 483 as- serts that Berghuys "did not work in its territory from July 16, 1976, to February 17, 1977." It is true that he received a referral in July 1976 and did not get another referral until February 1977. However, he signed the register on July 28, 1976, on October 18, 1976, and on December 6, 1976 (the latter being the basis for his refer- ral on February 17, 1977) and he was bypassed on each of the first two signings, although marked absent when he was subsequently called. To the extent that he may have been unavailable for employment at all during these two periods, that will be taken into account in comput- ing any backpay to Berghuys resulting from this pro- ceeding. As to Berghuy's testimony relating to an alleged instance of discriminatory treatment following the Febru- ary 17 referral, which Respondent claims was not in fact discriminatory, this is not being considered as such in view of a justifying request letter having been produced by Local 483. (14) Patrick luri: Turi was bypassed by Local 483 members some 16 times, once with no explanation given, 3 times with "recalled" stated, and 6 times with "request- ed" given as the reason, I of which indicated a letter on file but with no such letter produced. Respondent's claim that "the referral registers . . . disclose no improper re- ferrals being made ahead of Turi" is thus not borne out by the evidence. Respondents also point to the fact that Turi was "never requested for referral by any contractor during the period in question" as leading to the "infer- ence" that his "lack of ironworker skills was the primary reason for his lack of activity, not any discriminatory ac- tivity on the part of Local 483," and to the fact that his being registered only as a "rodman" was responsible for his "dramatically reduced" opportunity for referral. Nei- ther of these contentions is relevant to the discrimination practiced against him as shown by the referral registers. The possible impact of these factors on the remedy will be discussed in that section of this decision. (15) John Jones: Local 483's referral registers show that Jones was bypassed seven times, twice with no ex- planation at all, four times with "recalled" listed, and twice with the Local 483 member "requested," and indi- cated that a letter was on file, but without the letters produced. These figures refute the contention made by Local 483 that a "review of the referral registers again indicate the lack of any discriminatory treatment being practiced by Local 483 against Jones." As to Jones' testi- mony, and Templeton's denial thereof, that Templeton said to him, "I've got to take care of my minorities and local men," there is no need to resolve this, or similar conflicts, in testimony of this nature from other appli- cants, for all discrimination found herein is based on the records themselves, so that a statement of intent to dis- criminate by a business agent would add nothing to the case, assuming that it was made. (16) Joseph Sullivan: Eight bypassings are shown by the referral registers of Local 483 with respect to Sulli- van. One of these eight was unexplained; four were listed as "recalled;" and three as "requested," with one of the latter indicating a letter was on file, but such letter was not produced. Again, the figures themselves refute Re- spondents' claim that the referral registers show "no evi- dence of discrimination . . . regarding Sullivan." Re- spondents point to Sullivan's testimony that he went to Pennsylvania on July 29, 1976, and worked there for 4 or 5 months. That would affect only one of the instances of discrimination summarized above, a bypassing of Sulli- van that occurred with the referral of Local 483 member J. F. Lauro on August 2, 1976, with Lauro listed as "re- called," and with Lauro having signed the register 11 days after Sullivan. And this "effect" will be taken into account in terms of the backpay due Sullivan; he would not receive any for that period as he was unavailable for employment. Furthermore, under the Board's formula, his earnings from the Pennsylvania employment would be deducted from any backpay otherwise due him in any periods during which he was so employed. (17) Joe Lee Moore: Based on Local 483's referral reg- isters, Moore was bypassed on 12 occasions, once with a "recalled" explanation, and 11 with a "requested" expla- nation, with seven of the latter indicating a letter on file, but without the letter produced. Respondents' claim that "a review of the referral register reveals no discrimina- tion against Moore" is thus not substantiated. The fact that Moore may have sustained an injury limiting his "ability to perform ironwork" would, to the extent it made him unavailable for employment, be taken into ac- count at the compliance stage of this proceeding. (18) Rudy DiGiorgio: The referral registers of Local 483 show four instances of bypassing with respect to Di- Giorgio, one listed as "recalled," and three as "request- ed," with one of the latter indicating, but without sup- port, that a letter was on file. There is therefore no merit to Respondents' claim that he "was treated fairly in all his referrals." The remaining six charging parties are the alleged dis- criminatees who utilized Local I l's hiring hall. (I) Michael Fearns: Fearns was bypassed by Local 11 members, as shown by that Union's referral registers, some 22 times, 12 with no explanation given, 5 indicating IRONWORKERS LOCAL 483 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a "return to job," and 5 stating "requested" as the reason for the particular referral. 7 Respondents argue that Fearns' signing the register was not done in a bona fide attempt to secure employment, but was merely to keep his name alive on the Local 11 register for the purposes of this lawsuit. Fearns was also absent on many occa- sions when his name was called for referral. It is true, as he testified, that he was working as a policeman for Con- rail on a 40-hour-a-week basis, working the midnight-to- 8-a.m. shift, beginning in June 1976. He also testified that he took that job "because I was forced out of my regular work." There is no showing in the record, nor any basis for inferring, that Local 11's bypassing him was in any way related to his full-time employment as a policeman. Whether he was in fact available for employment as an ironworker after June 23, 1976, is best left to the compli- ance stage of this proceeding. Of course, as with all dis- criminatees herein found, his interim earnings would be deducted from any gross backpay due to him. (2) Ralph Grisi: Local I l's referral registers show that Grisi was bypassed some 50 times by Local 11 members. There was no explanation at all stated 24 of these times; 17 times "returned to work" was given as a reason; and 9 times "requested," with no supporting evidence or letter in the file, was asserted. These figures completely refute Respondents' contention that "the records reflect no discriminatory treatment against Grisi." Local 11 points to testimony of Grisi concerning various absences from the area to work in other parts of the country, as well as an injured arm (for 6 weeks in September and October 1976). Here, as in other cases, to the extent it is shown at the compliance stage that he was unavailable for employment on occasions when the face of the refer- ral registers indicate discrimination, he would not partici- pate in any backpay for such period. (3) Anthony Pontrelli: Pontrelli was bypassed by Local II members 29 times without any explanation at all ap- pearing on the face of the referral registers. He was also bypassed another 42 times, 28 of them being explained by "returned to work," and 14 by "requested," without any letters on file for any of these referrals. This is scarcely the "fairly treated by Local 11" that Respon- dents' brief claims to be the case. (4) Peter DeMaio: DeMaio's total of more than 60 by- passings shown on Local I l's referral registers include 24 with no explanation at all, 31 with "returned to job," and 8 with "requested," with no letters on file for any of these out of turn referrals. It is difficult to square this record with Respondents' assertion that "DeMaio's refer- ral record reflects that he was always referred out by Local 11 in proper sequence in accordance with the dic- tates of the Consent Decree." Indeed, as to him and the five other named discriminatees with respect to Local 11, the number of bypassings without any explanation at all show on the referral registers. (5) Joseph Tafro: Joseph Tafro was bypassed some 54 times by members of Local 11. There was no explanation given 28 times; 21 of these referrals were listed as "re- 7 The terms used here may not be precisely those used in the referral registers, but reflect the gist of the reason stated, when there was one. Local 11 did not, as noted above, use precisely the same terminology as did Local 483. turned to job," and 5 as "requested," with no letters in evidence as to any of them. These figures provide a con- clusive answer to Respondents' defense that "the referral registers reflect no improper treatment of [Joseph] Tafro in the operation of its hiring hall." (6) Victor Tafro: Victor Tafro is shown by Local I l's referral registers to have been bypassed at least 18 times during 1976 and 1977, 14 without any explanation listed, and 4 with "returned to job." Once again, Local Il's claim that "The referral registers reflect that [Victor] Tafro was treated fairly by Local 11 in the operation of the hiring hall" does not square with the registers them- selves. To sum up the foregoing figures: The referral registers show that Local 483 bypassed named Charging Parties without any explanation a total of 17 times, involving 11 of the 18 named applicants; it used "recalled" a total of about 70 times as a reason for out of turn referrals of members as against the Charging Parties, and "request- ed," without a supporting letter introduced, close to 50 times. The Local 11 referral registers show that this Respon- dent bypassed the six Charging Parties using its hiring hall a total of about 130 times with no explanation, 105 times as "returned to job," and 41 times as "requested," with no requesting letter produced. C. Respondents' Contentions and Argruments Respondents nowhere assert, nor could they, that re- ferral of a member ahead of a nonmember without any explanation appearing on the referral register is lawful. As indicated in the individual summaries above, Respon- dents apparently overlooked these facts in some in- stances, particularly with respect to the 6 alleged discri- minatees who used Local I l's hiring hall who were by- passed from 12 to 29 times in this manner. It is true, as pointed out above, that the Charging Parties as a group, particularly those using Local 483's hiring hall, were absent much more frequently, when called for referral, than Local 483's members. That neither explains nor condones any of the bypassings, for nothing in the record even suggests that Respondent's referrals of union members out of turn was in any way based on the ab- sences of the nonmember applicants. Furthermore, any time a Charging Party, or any other nonmember similar- ly situated, was called for referral but marked absent, that call is the same as a referral for present purposes. It is also true that the number of "separate" violations indicated by the above summaries is somewhat mislead- ing. Thus, during the period in question, there are literal- ly hundreds of instances where Local 11 men were re- ferred out of turn, ahead of the six named discriminatees. But many of these instances involve the same Local I11 member being referred out ahead of more than one non- member Charging Party. For example, Local 11 member R. A. Perry was referred to a job on May 11, 1976, at Atlas Steel Company ahead of Mike Fearns, who signed the register April 30, while Perry had signed on May 5. But Joseph Tafro and Pete DeMaio were also bypassed by this same May 11 referral of Perry to Atlas Steel. Ob- viously, only one of the three could have been sent to that job. Other examples of this abound in the Local 11 IRONWORKERS LOCAL 483 27 referral registers. The Local 483 referral registers also contain examples of this nature. Thus, Charging Party J. Jones signed the register on April 22, 1976, Henry Berghuys signed April 23, and Anthony Cucci also April 23. All were bypassed by W. E. Jones, who was referred to the Briscoe Company on April 30, although he did not sign the register until April 28. In one sense, the referral by the unions of one or more of their members ahead of more than one nonmember who had signed the referral register earlier than the member emphasizes the discriminatory treatment accord- ed the nonmembers. It makes much less likely, for exam- ple, the purported explanation that something in particu- lar about the individuals concerned was a factor in their being bypassed. In a different sense, however, this kind of situation diminishes the impact of the bypassing as to any particular discriminatee, for he would not necessarily have been the one referred absent discrimination-one of the nonmembers could have been selected nondiscriminatorily (presumably the first of the non- members to have signed the register). In the example cited above, Joseph Tafro, who signed the register ahead of both Fearns and DeMaio, would have been the appli- cant referred had the system operated as the court's decree commanded. But Joseph Tafro was also bypassed, following his April 28 signing, by the May 14 referral of member Warren, as well as by the May 21 referral of member G. Dunn; Fearns was bypassed by both the Warren and Dunn referrals, and DeMaio was bypassed by the May 25 referrals of R. Hartnett and G. Woodall.8 Thus both these employees were meaningfully, in terms of direct harm to them, discriminated against on the oc- casion of their April 30 and May 5 signings of Local I l's referral register, even discounting the duplication of dis- crimination represented by the Perry and Warren refer- rals. I believe that the Board's remedy devised for this type of case, discussed at more length below, adequately caters to this kind of problem. Respondents do advance some arguments here that may not have been considered by the Board in the earli- er cases with respect to the "recalled" and "requested" explanations of their members' out-of-turn referrals. Thus, the "requested" exception in the consent decree merely provides, as Respondents point out, that "The union shall request written confirmation from the con- tractors of each request or referral of applicants by name." (Emphasis supplied.) Respondents assert that their demand upon a contractor for a written request is sufficient to put them "in full compliance with the Con- sent Decree," that "the responsibility for forwarding it lies strictly with the contractor." I view the Board's holding in the other cases as implicitly rejecting this de- fense. Granting that the lack of such a letter on file may not constitute a variance from the consent decree itself, it is easy to see, in light of the large number of unex- plained bypassings of Charging Parties and other non- members by members of the two Respondents, why the Board would require more than a bare notation of a a Listed in the General Counsel's appendix to his brief as a May 28 referral, an obvious typograhical error valid reason without substantiation to justify such by- passings. The Board also found, as noted above, that the "re- called" category was not a legitimate exception because there is no such excepted category provided for in the consent decree. Respondent argues that this designation is used in situations where a job already going temporar- ily shuts down. "Once the job starts up again, the con- tractor will notify the hiring hall and ask for the same crew back again." I do not think that Respondents' agru- ment here adds anything of sufficient substance to war- rant reconsideration of the Board's prior holding that "recalled" is not within the exceptions contained in the decree. In effect, Respondents are equating "recalled" with "requested," in that a recall listed in the referral register would of necessity be someone named by the contractor in seeking employees from the hiring hall, albeit that they were employees who had started work- ing for them some time earlier. Thus a "recalled" expla- nation is at best, from Respondents' standpoint, the same as a "requested," and, absent supporting evidence, nei- ther serves as a defense to a bypassing of a nonmember, as the Board has already held. Respondents also argue that no violation should be found, or remedial order issued, with respect to any indi- vidual not named in the charges or in the complaint. As noted above, the Board has explicitly ruled to the con- trary in the five cases virtually identical to this one with respect to this issue. Respondents do raise one point which appears to pose a dilemma. They point to the fact that Rudy DiGiorgio, who filed a separate charge on March 30, 1977, 9 has a "10(b) date" of September 30, 1976.10 And liability of Respondent Local 483 as to Di- Giorgio therefore goes back only to that date. Yet no such cutoff date would be involved for any nonmember beneficiaries of the Board's unfair labor practice order who were not named in the complaint, the cutoff date as to them presumably being 6 months before the initial charges were filed. The anomaly here is that DiGiorgio, by filing later than the other named discriminatees, re- stricts his backpay to September 30, 1976, while un- named discriminatees, who filed no charge at all, get backpay from February 10, 1976, as do the rest of the named discriminatees. DiGiorgio, in short, would be better off had he filed no charge at all. And the non- member discriminatees not named in the complaint would be worse off had they filed charges, but after the other discriminatees did, than they are without having filed charges at all. The answer to this dilemma probably lies in the fact that DiGiorgio should be entitled to backpay from Feb- ruary 1976, even though he filed his separate charges in September 1976. Because the General Counsel expressly limited the relief requested for him to September 30, 1976, however, it would be inequitable, and perhaps vio- lative of due process at this point, to date DiGiorgio's backpay any earlier. In any event, nothing in the Di- Giorgio situation can change the result here from that reached by the Board in the other cases cited as to em- 9 All the other named discriminatees were included in charges filed by Attorney John Craner on August 10, 1976. 'o Amended by counsel for the General Counsel at the hearing. IRONWORKERS LOCAL 483 7 28 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD ployee applicants not named in the complaint, and their entitlement to participate in the remedy devised by the Board. D. The Use of the "Steward" Designation The General Counsel argues that the disproportionate number of steward referrals to members as against non- members demonstrates discriminatory treatment of the latter. With respect to Local 483, the General Counsel points to the fact shown on the referral registers that be- tween May 10 and October 11, 1976, 6 of the 210 refer- rals of Local 483 members "fell within the steward ex- ception," while none of the 590 nonmember referrals were as stewards. As to Local 11, during the period from November 24, 1976, to March 14, 1977, there were 146 steward referrals of the 364 total referrals of mem- bers of Local 11, and during the same period there were 93 nonmembers referred as stewards out of 436 non- members referrals. I The Local 483 numbers are much too small, it seems to me, to be of statistical significance, even though six as opposed to none is in fact an infinite difference. For had Local 483 used the "steward" exception deceptively, to cloak preferences for its members that had no legitimate explanation, one would expect that designation to have been used many times. Furthermore, examination of the registers indicates, as to the first three Local 483 mem- bers referred as stewards during the period in question, John Brown, Tom Cleland, and Ed McKernan, that none in fact bypassed a Charging Party, that each bypassed one or more other Local 483 members, and that the latter two bypassed several nonmembers. I find no basis in the foregoing for concluding that Local 483 misused the steward exception. Indeed, it hardly used it at all. As to Local 11, even though there are proportionately more Local members than nonmembers referred as ste- wards, the number of nonmembers so referred is relative- ly large, the disproportion is not nearly of the magnitude that existed in the other cases where the Board conclud- ed that there was discrimination based on the dispropor- tion. In 235 NLRB 1511, for example, there was a 6 to I ratio of members being referred as stewards as opposed to nonmembers. Furthermore, some disproportion is to be expected in this regard. The Board in the cited case adverted to the "well-established tradition that a union is entitled to have its own members as steward" and only found the violation in that case because the record clear- ly demonstrated "that Respondent's true purpose in pro- viding its own members with a disparate share of the ste- ward appointments was to secure a disproportionate number of jobs for them." In my opinion, the present record will not sustain such a conclusion with respect to Local 11. Accordingly, I conclude that the General Counsel has not sustained his burden of proof with re- spect to showing that the "steward" exception was used in this case to further the discrimination in referrals in favor of Local I l's members. I I have not independently checked these figures, and I assume their approximate correctness for purposes of discussion Any minor variations would have no significance. E. The Charging Parties' Contentions Counsel for the Charging Parties contended at the hearing and in a brief to me that Respondents "knowing- ly permitting employers to evade the hiring halls" in itself was discriminatory in fact and in intent. "By not in- sisting that . . . employers follow the contract, the unions violated their duty of fair representation toward all employees who would expect the contract to be en- forced." It could be expected, argue the Charging Par- ties, that contractors, "who are at the whim of the busi- ness agent insofar as the men they obtain can naturally be expected to deal with union personnel," would prefer Local men, or those non-Local men not seeking to trans- fer into the Local. Thus, the Union's failure to enforce its bargained-for exclusive hiring hall was arbitrary and capricious, and violated its duty of fair representation. And the Charging Parties request that, in addition to the normal remedies the Board provides in cases involving discrimination in referrals, the Board require that all con- tractors must be required to hire only through the hiring hall, and that the "50 percent" rule 2 be eliminated. The Charging Parties also point to the wide discrepan- cy between the income earned by nonmembers and members, as reflected in employer contribution records, as evidencing discrimination, in part resulting from the more obvious discrimination of referring Local men before non-Local men who had signed the register first, and in part from the failure of the Unions to enforce their exclusive hiring halls. The Charging Party's argu- ment has a surface appeal. I agree, for example, that the restrictive membership practices employed by the two Respondent Locals must have had a purpose, that they must "have been used to protect something and that that something is the economic well being and job security of local union members." I also agree that, absent some ex- planation, a wide disparity between the work performed and income attained in favor of local members against nonmembers would more than merely suggest discrimi- nation against the latter. But statistics in a vacuum can often mislead, and, with respect to some of the bases for the Charging Parties' argument, I believe the data failed to prove the point advanced. For example, the persons named in the complaint may have been given much less work and received much less income by virtue of nonre- ferral jobs obtained by members. But the named discri- minatees are not all of the nonmembers or even all of the nonmembers who sought to obtain membership or trans- fer into the Locals. James O'Keefe presents a striking ex- ample. Thus, the employer ledger cards for him show virtually continuous employment from November 1976 through July 1977, for two employers, with neither of his jobs obtained by referral from the Local 483 hiring hall. Yet O'Keefe was not only a nonmember, he was also one of the persons who was seeking by court action to obtain membership in Local 483. Perhaps, indeed, that is why O'Keefe, or others similarly situated, did not "participate" in the charge and were not named in the complaint. 2 he "50 percent rule" permitted a contractor from out of the area to bring in half of its employees without regard to referrals from the union's hiring hall. IRONWORKERS LOCAL 483 It may be that the "nonmember" figures alone are not relevant to the point made by the Charging Parties-that the unions' animus was directed only at those non- members who have sued Respondent Locals to force the Locals to admit them to membership. But the fact that some within even that class got many jobs, and some of the named discriminatees got jobs outside the referral system suffices, in my view, to reject any substantial fac- tual basis for reaching the Charging Parties' theory as a matter of law. There is not a shred of evidence that either Respondent in fact connived with contractors to aid members. The Charging Parties state that permitting the hiring hall to be bypassed resulted in what the Unions knew would be "obvious"-that local contractors "will hire local men or non-local insiders if they wish to get their job done expeditiously and safely." (Emphasis supplied.) I don't know what a "non-local insider" is. I suppose the Charging Parties' definition would be any non-Local men who did in fact receive a lot of work without going through the hiring hall. But by that token any group of "nonmembers" whose income from area ironworker work was substantially below the levels of the rest of the entire class of employees using a particular hiring hall would be discriminatees-even if the income of all non- members as a class equaled or surpassed that of members. In at least some cases, it is also true that nonmembers were absent a great many times because they were in fact out of the area, for both short and long periods of time. The Charging Parties claim that the "high proportion of non-local, compared to local men . . . marked absent" itself evidences a "subtle form of discrimination" by Re- spondents. However, there is no evidence at all to show that the applicants involved were not absent on days so marked in the referral registers. Nor is there any evi- dence of, or basis for inferring, that either Respondent withheld assignments of job openings until "non- members" were "absent." I would imagine that this would be difficult to do as a practical matter. Contrac- tors needing ironworkers would not want to wait for the hiring hall operators to manipulate the referral system. There are sufficient instances of absolute discrimina- tion-preference to members with no explanation at all- and inferrable discrimination along more conventional lines-preference to members without following the safe- guards provided in the consent decree-to establish the violations of the Act alleged by the General Counsel both as to named (in the complaint) and unnamed "non- members." To go so far as to base an unfair labor prac- tice against these Respondents solely on disparity of income unrelated to Respondents' preference for union members within the operations of the hiring hall would therefore, in my opinion, be largely a futile and unneces- sary exercise. In any event, the backpay formula used by the Board in the other cases mentioned already compen- sates the discriminatees based on the differences in earn- ings through hiring hall jobs between them and members of Respondent Locals as to any period where actual dis- crimination is shown. F. Concluding Findings As in the five cases which constitute "the law" with respect to the issues in this case, the record here conclu- sively demonstrates that Respondents discriminated in the operation of their hiring halls by preferring their members to nonmembers in making referrals. I find, ac- cordingly, that both Respondents violated Section 8(b)(1)(A) and (2) of the Act by their conduct in these respects, both as the nonmember named discriminatees, and with respect to all similarly situated nonmember ap- plicants. On the basis of the foregoing findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. By attempting to cause and by in fact causing the employer members of the Building Contractors Associ- ation of New Jersey to discriminate against 18 iron- workers named in the complaint, and other as yet un- identified ironworkers, in violation of Section 8(a)(3) of the Act, Respondent Local 483, International Associ- ation of Bridge, Structural and Ornamental Ironworkers has violated and is violating Section 8(b)(1)(A) and (2) of the Act. 2. By attempting to cause and by in fact causing the employer members of the Building Contractors Associ- ation of New Jersey to discriminate against the six indi- vidual ironworkers named in the complaint and other as yet unidentified ironworkers, in violation of Section 8(a)(3) of the Act, the Respondent Local 11, Internation- al Association of Bridge, Structural and Ornamental Ironworkers has violated and is violating Section 8(b)(l)(A) and (2) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act, I shall recom- mend that they cease and desist therefrom and take cer- tain affirmative action designed to effectuate the pur- poses of the Act. In view of the fact that the Board has set forth its views, and issued orders, in the five cases previously cited, which are in all respects virtually iden- tical to the instant case, 1 need recommend only that the Board issue identical orders herein, with backpay com- puted on a quarterly basis, plus interest, as prescribed in F W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977), using the formula specified by the Board in those cases. By and large, that formula seems a fair way of dealing with a problem which cannot have a mathematically pre- cise solution. Thus, with respect to those Charging Par- ties and any other employees similarly situated' 3 who regularly used the Local 483 or Local 11 referral sys- tems, it is equitable to make them whole in the manner prescribed by the Board in the cited cases, even though 13 As noted above, Board law requires that these other employees also be included in the remedy 29 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it is possible that, absent discrimination, they might have had less work through referrals than union members by virtue of having less skills, or not being requested by contractors as often. As to some of the employees here involved, however, the application of that remedy seems unwarranted. For example, employee Cheselka signed the referral register on July 26, 1976, and his name was not called until September 2, 1976, with four union mem- bers being called in the interim for jobs for which Che- selka was qualified. But, Cheselka himself testified that he left the area August 2, 1976, and did not return for some 6 months. In these circumstances, it would be manifestly unfair to have Cheselka participate in any backpay award during that period, even though the Union, which did not know he was out of the area,' 4 in effect attempted to discriminate against him by referring other applicants during that period. Accordingly, I recommend that neither Cheselka nor any other individual entitled generally to backpay under the terms of this Decision shall receive any backpay during periods when they would not have been available for employment absent discrimination. Factual determi- nations necessary to effectuate the remedy in this and all other respects shall await the compliance stage of these proceedings. Compare 235 NLRB 213, fn. 8. Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER l Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board hereby orders that: A. Respondent International Association of Bridge, Structural and Ornamental Ironworkers, Local 483, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause the separate em- ployer-members of Building Contractors Association of New Jersey, or any other employer, to discriminate against any of the following employees: (b) In any other manner restraining or coercing em- ployees or applicants for employment in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. 2. Take the following affirmative action necessary to effectuate the purposes of the Act: (a) Keep and retain for a period of 2 years from the date of this Decision permanent written records of its hiring and referral operations which will be adequate to disclose fully the basis upon which each referral is made and, upon the request of the Regional Director for Region 22, or his agents, make available for inspection, at reasonable times, any records relating in any way to the hiring and referral system. (b) Submit four quarterly reports to the Regional Di- rector, due 10 days after the close of each calendar quar- ter subsequent to the issuance of this Decision, concern- ing the employment of the above-named employees and other nonmember applicants subsequently found to have been similarly situated. Such reports shall include the date and number of job applications made to Respon- dent, the date and number of actual job referrals by Re- spondent, and the length of such employment during such quarter. (c) Place the referral registers, for a period of 2 years, on a table or ledge in the hiring hall for easy access and inspection by the applicants as a matter of right, upon completion of each day's entries in such registers. (d) Make whole each of the above-named employees, and all other nonmember applicants who were similarly situated, for any loss of earnings suffered by reason of the discrimination practiced against them, in the manner set forth in the section of this Decision entitled "The Remedy." (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all re- cords, reports, work lists and other documents necessary to analyze the amount of backpay due under the terms of this Decision. (f) Post at all places, where notices to employees, ap- plicants for referral, and members are posted, copies of the attached notice marked "Appendix A."16 Copies of said notice, on forms provided by the Regional Director for Region 22, after being duly signed by the Local's representative, shall be posted by Respondent immediate- ly upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to members are custom- arily posted. Reasonable steps shall be taken by the Union to insure that said notices are not altered, defaced, or covered by any other material. (g) Cause, at its expense, the attached notice marked "Appendix A" 7 to be printed in a newspaper of general circulation within its jurisdictional area. (h) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what 16 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." '7 See fn. 16, supra. Nicholas Philipchuk Rudy Pavesi Anthony J. Cucci Vito Christiano Richard Clark Antonias Winkens Russell Hrenenko George Janacek Michael Cheselka Eitel Hespelt Jack Hespelt John Jones Patrick Turi Joseph Sullivan Henry Berghuys William Wharrie Joe Lee Moore Rudi DiGiorgio or any other employees, in violation of Section 8(a)(3) of the National Labor Relations Act because of their lack of membership in Local 483. :4 Viz, the very fact that he was called out on September 2. '" In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. IRONWORKERS LOCAL 483 31 steps Respondent Local 483 has taken to comply here- with. B. Respondent International Association of Bridge, Structural and Ornamental Ironworkers, Local 11, AFL- CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause the separate em- ployer-members of Building Contractors Association of New Jersey, or any other employer, to discriminate against any of the following employees: Victor Tafro Joseph Tafro Peter DeMaio Michael J. Fearns Anthony Pontrelli Ralph Grisi or any other employees, in violation of Section 8(a)(3) of the National Labor Relations Act, because of their lack of membership in Local 11. (b) In any other manner restraining or coercing em- ployees or applicants for employment in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the purposes of the National Labor Relations Act: (a) Keep and retain for a period of 2 years from the date of this Decision permanent written records of its hiring and referral operations which will be adequate to disclose fully the basis upon which each referral is made and, upon the request of the Regional Director for Region 22, or his agents, make available for inspection, at reasonable times, any records relating in any way to the hiring and referral system. (b) Submit four quarterly reports to the Regional Di- rector, due 10 days after the close of each calendar quar- ter subsequent to the issuance of this Decision, concern- ing the employment of the above-named employees and other nonmember applicants subsequently found to have been similarly situated. Such report shall include the date and number of job applications made to Respondent, the date and number of actual job referrals by Respondent, and the length of such employment during such quarter. (c) Place the referral registers, for a period of 2 years, on a table or ledge in the hiring hall for easy access and inspection by the applicants as a matter of right, upon completion of each day's entries in such registers. (d) Make whole each of the above-named employees, and all other nonmember applicants who were similarly situated, for any loss of earnings suffered by reasons of the discrimination practiced against them, in the manner set forth in the section of this Decision entitled "The Remedy." (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all re- cords, reports, work lists and other documents necessary to analyze the amount of backpay due under the terms of this Decision. (f) Post at all places, where notices to employees, ap- plicants for referral, and members are posted, copies of the attached notice marked "Appendix B."' 8 Copies of said notice, on forms provided by the Regional Director for Region 22, after being duly signed by the Local's la See fn. 16, supra representative, shall be posted by it immediately upon re- ceipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Union to insure that said notices are not altered, defaced, or covered by any other material. (g) Cause, at its expense, the attached notice marked "Appendix B"' 9 to be printed in a newspaper of general circulation within its jurisdictional area. (h) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps Respondent Local 11 has taken to comply here- with. 7 See fn 16, upra APPENDIX A NOTICEi To MIMBIRS POSTED BY ORI)F R OF THI NATIONAL LABOR Ril A TIONS BOARD An Agency of the United States Government WE WIl.L NOT cause or attempt to cause the em- ployer-members of Building Contractors Associ- ation of New Jersey, or any other employer, to dis- criminate against any of the following employees: Nicholas Philipchuk Eitel Hespelt Rudy Pavesi Jack Hespelt Anthony J. Cucci John Jones Vito Christiano Patrick Turi Richard Clark Joseph Sullivan Antonias Winkens Henry Berghuys Russell Hrenenko William Wharrie George Janacek Joe Lee Moore Michael Cheselka Rudi DiGiorgio or any other employees, in violation of Section 8(a)(3) of the National Labor Relations Act because of their lack of membership in Local 483. 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 National Labor Relations Act. WE WILL keep and retain for a period of 2 years permanent written records of our hiring and referral operations which will be adequate to disclose fully the basis upon which each referral is made and, upon the request of the Regional Director for Region 22, or his agents, make available for inspec- tion, at all reasonable times, any records relating in any way to the hiring and referral system. WE WILL submit four quarterly reports to the Regional Director, due 10 days after the close of each calendar quarter subsequent to issuance of the Board's Decision and Order concerning the employ- ment of the above-named employees and those non- member applicants subsequently found to have been similarly situated. Such reports shall indicate the date and number of job applications made to us, the IRONWORKERS LOCAL 483 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD date and number of our actual job referrals, and the length of such employment during such quarter. WE WILL place the referral registers, for a period of 2 years, on a table or ledge in our hiring hall for easy access and inspection by the applicants as a matter of right, upon completion of each day's en- tries in such registers. WE WILL make whole each of the above-named employees, and all other nonmember applicants who were similarly situated, for any loss of earnings they may have suffered by reason of our discrimina- tion against them, plus interest. INTERNATIONAl ASSOCIATION OF BRIDGE STRUCTURAL AND ORNAMENTAL IRON- WORKERS, LOCAL 483 APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause or attempt to cause the em- ployer-members of Building Contractors Associ- ation of New Jersey, or any other employer, to dis- criminate against any of the following employees: 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 National Labor Relations Act. WE WILL keep and retain for a period of 2 years permanent written records of our hiring and referral operations which will be adequate to disclose fully the basis upon which each referral is made and, upon the request of the Regional Director for Region 22, or his agents, make available for inspec- tion, at all reasonable times, any records relating in any way to the hiring and referral system. WE WILL submit four quarterly reports to the Regional Director, due 10 days after the close of each calendar quarter subsequent to the issuance of the Board's Decision and Order, concerning the em- ployment of the above-named employees and those nonmember applicants subsequently found to have been similarly situated. Such reports shall indicate the date and number of job applications made to us, the date and number of our actual referral, and the length of such employment during such quarter. WE WILL place the referral registers, for a period of 2 years, on a table or ledge in our hiring hall for easy access and inspection by the applicants as a matter of right, upon completion of each day's en- tries in such registers. WE WILL make whole each of the above-named employees, and all other nonmember applicants who were similarly situated, for any loss of earnings they may have suffered by reason of our discrimina- tion against them. INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON- WORKERS, LOCAL 11 Victor Tafro Joseph Tafro Peter DeMaio Michael J. Fearns Anthony Pontrelli Ralph Grisi or any other employees in violation of Section 8(a)(3) of the National Labor Relations Act because of their lack of membership in Local 1.