Ironworkers Local 373

National Labor Relations Board - Board Decisions

Sep 28, 1977

232 N.L.R.B. 504 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Association of Bridge, Structural &
Ornamental Ironworkers, Local 373 and Henry
Arminas, Paul Bongard, Jr., Frank Castellano,
Jeffrey Coleridge, Philip Connell, William Craw-
ford, Joseph Dolinich, Edward Farley, James Fox,
John Krusis, Thomas McCloskey, Donald McMa-
hon, Frank O'Neill, Arthur Smith, Charles Thom,
and Joseph Thom, and Building Contractors
Association of New Jersey, Party to the Contract
International Association of Bridge, Structural &
Ornamental Ironworkers, Local 45 and Adam
Lerie, and Joseph Bucci, and Marcel Brizien, Carl
Clarino, Patrick Clarino, James Moniello, John
Moniello, Michael Moniello, and Jack Tagliareni
and Building Contractors Association of New
Jersey, Party to the Contract
International Association of Bridge, Structural &
Ornamental Ironworkers, Local 483 and William
O'Neill, and Nicholas Philipchuk and A.H. Wink-
ens, and Richard Clark, and Building Contractors
Association of New Jersey, Party to the Contract.
Cases 22-CB-3024, 22-CB-3046, 22-CB-3123,
22-CB-3151, 22-CB-3097, 22-CB-3195, and 22-
CB-3204
September 28, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On September 23, 1976, Administrative Law Judge
Tomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief; Respondents
International Association of Bridge, Structural &
Ornamental Ironworkers, Locals 373 and 45 (herein
I Respondent Locals 373 and 45 have requested oral argument. This
request is hereby denied as the record, exceptions, and briefs adequately
present the issues and positions of the parties.
2 Respondent Local 373 has excepted to the failure of the Administrative
Law Judge to strike the testimony of Frank O'Neill on the ground that his
invocation of the constitutional privilege against self-incrimination effective-
ly deprived it of its right to cross-examine him. Inasmuch as Respondent's
cross-examination of the witness related primarily to matters relevant to
backpay proceedings, we hereby affirm the Administrative Law Judge's
ruling. See Sec. 102.44(c) of the Board's Rules and Regulations, Series 8, as
amended.
3 The Northern New Jersey District Council of Ironworkers is comprised
of various locals, including the three Respondents herein. Pursuant to a
contractural agreement with the Building Contractors Association of New
Jersey, these locals operate exclusive hiring halls.
4 The consolidated complaint specifically alleged, inter alia, that
Respondent Locals 373, 45, and 483 had discriminated against 29 named
individuals. At the hearing. the General Counsel withdrew the allegations of
the complaint relating to alleged discriminatees A. H. Winkens, Nicholas
Philipchuk. and Richard Clark. who had filed charges against Local 483.
The Administrative Law Judge dismissed the allegations of the complaint
with respect to alleged discriminatees William O'Neill, the sole remaining
complainant against Local 483, Joseph Bucci, Charles Thom, and Joseph
232 NLRB No. 85
called Respondent Locals 373 and 45), jointly filed
exceptions and a supporting brief; and the Charging
Parties filed limited exceptions and a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs' and has decided to affirm the rulings,2
findings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The Administrative Law Judge concluded that
Respondent Locals 373 and 45 have engaged in
widespread and pervasive violations of Section
8(b)(l)(A) and (2) of the Act by discriminating
against nonmember applicants in the operation of
their exclusive hiring halls. 3 He found that Respon-
dents had committed unfair labor practice violations
in every instance in which their members were
referred to work in preference to 22 alleged discrimi-
natees named in the complaint who had registered
prior to them.4 In each instance the member's name
bore no special designation in the right-hand column
of the referral books entitled "Remarks" which might
have justified preferential treatment.5 In so doing,
the Administrative Law Judge, as part of his
Decision, introduced into evidence as his own
exhibits certain appendixes prepared and submitted
by the General Counsel in a posthearing brief to the
Administrative Law Judge which contained summar-
ies of the referral books of Respondent Locals 373
and 45, and the shop steward reports of Respondent
Local 45. It is clear from a comparison of the referral
books with the statistical information set out by the
Administrative Law Judge as illustrations of unlaw-
ful conduct that, in finding specific violations herein,
he substantially relied on the summaries provided by
Thom. We adopt the Administrative Law Judge's dismissal of these
allegations.
5 On July 28, 1972, a 5-year consent decree 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 the three Respondents herein. The
consent decree provides 'that the referral system shall be operated by
Respondents on a "non-discriminatory 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: (I) the contractor specifically requests an
applicant, by name, who had previously 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 individual to serve as
foreman; (4) senior experienced applicants designated by the local union to
act as stewards: (5) minorities requested by contractors who are obligated to
meet affirmative action requirements imposed by any governmental agency:
and (6) employer requisitions communicated during other than normal
referral hours or on Saturdays, Sundays, or holidays. It appears that
Respondents, when making referrals which purportedly fell within these
classifications, generally denoted such referrals by placing special designa-
tions in the "Remarks" column of their refenal books.
504
IRONWORKERS, LOCAL 373
the General Counsel rather than on the actual
referral records which were introduced into evidence.
Respondents except to the Administrative Law
Judge's findings insofar as they are based on the
General Counsel's posthearing summaries. They
contend, inter alia, that the General Counsel failed to
take into account designations in the "Remarks"
column for members falling within excepted catego-
ries under the consent decree, and did not consider
other designations appearing elsewhere in their
referral books.
While we conclude that Respondents in fact have
engaged in a continuing and widespread pattern of
unlawful conduct against the discriminatees herein,
we do so based upon our examination of the referral
books themselves, placing no reliance on the General
Counsel's summaries. In finding the specific viola-
tions which are detailed in Appendixes C and D
[omitted from publication], we have excluded from
consideration those instances in which it appears
from the books that Respondents seek to justify
nonchronological referrals of members by according
them preferential referral designations recognized by
the consent decree. We have relied solely on those
referrals wherein members with no purported desig-
nations were given preference over the 22 nonmem-
ber applicants found by the Administrative Law
Judge to have been discriminated against. Thus, we
find that Respondent Local 373 clearly violated
Section 8(b)(l)(A) and (2) of the Act an indisputable
minimum number of 349 times and Local 45 clearly
violated the same provisions of the Act an indisputa-
ble number of 74 times by affording preferential
treatment to their own members. 6
In addition to his findings of specific violations, the
Administrative Law Judge concluded that Respon-
dents' designation of their own members as falling
within the excepted categories of "foreman," "stew-
ard," "requested," or "late call" were deceitful in at
least half of the total instances in which they made
out-of-turn referrals based on such designations. In
this regard, he found:
As the months went on-starting early in
January 1975 before any charge was filed,
continuing into the second half of the year with
more charges being filed, and then through the
early part of 1976 as the hearing approached,
more and more of the preferred members were
6 Specifically, with respect to Local 373, a review of the referral books
reveals that during the period from January 15, 1975, to June 10, 1976, that
Respondent clearly violated the Act at least the following number of times
against each of the named discriminatees: Henry Arminas (33); Paul
Bonard, Jr. (26); Frank Castellano (30); Jeffrey Colendge (25): Philip
Connell (36); William Crawford (60); Joseph Dolinch (6); Edward Farley
(22); James Fox (27); John Krusis (12); Thomas McCloskey (26); Donald
McMahom (14); Frank O'Neill (12); and Arthur Smith (20). Similarly, with
respect to Local 45, for the period February 11, 1975, to June 10. 1976:
designated foremen, stewards, etc. Indeed, there
came a time when practically every member of
Local 373 was recorded as in one special category
or another. The inference that this progressive
pattern tells a revealing story of deceit is
inescapable.
The Administrative Law Judge supported the "ines-
capable" inference of deceit with a detailed recitation
of findings conclusively establishing comparable
patterns of progressively worsening, grossly disparate
designation treatment for members vis-a-vis non-
members in both Respondents' referral registers.7
While we do not find sufficient evidence to support
the specific calculation in the Administrative Law
Judge's finding that at least half of the aforemen-
tioned designations were false, it is clear from the
referral books that Respondents continuously and
systematically designated their own members as
falling within excepted categories under the consent
decree and referred them out of turn, almost to the
point of so designating each and every member
referred. Although nonmember signatories signifi-
cantly outnumbered members in the referral books,
they were seldom accorded preferential referral
classifications and were rarely referred to jobs out of
chronological order even if they were classified
within excepted categories in the books.
We agree with the Administrative Law Judge that
the only reasonable evidentiary inference to be
drawn from this striking statistical contrast between
member and nonmember referrals made pursuant to
excepted category designations is that a substantial
number of such designations are false. This evidence
supplements the aforementioned conclusive evidence
of multitudinous acts of discrimination against 22
identified nonmember applicants for employment
and further demonstrates that Respondents have
engaged in egregious and pervasive violations of the
Act over an extended period of time by giving
preference to members over nonmembers in making
referrals.
THE REMEDY
Having found that Respondents have engaged in
and are engaging in unfair labor practices within the
meaning of Section 8(b)()(A) and (2) of the Act, we
shall order that they cease and desist therefrom and
Marcel Bizien (4); Carl Clarino (I); Patnck Clanno (I); Adam Lerie (24);
James Moniello (4); John Moniello (4); Michael Moniello (20); and Jack
Tagliareni (16). See Appendixes C and D.
7 The Administrative Law Judge apparently based his findings with
respect to excepted category designations and referrals upon an analysis of
the referral books themselves. While there are minor discrepancies between
the figures set out by the Administrative Law Judge and those revealed by
our examination of books, such discrepancies are too insubstantial to affect
our conclusion herein.
505
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
take certain affirmative action designed to effectuate
the purposes of the Act.
The complaint herein not only alleges that Respon-
dents have violated the Act as to certain identified
nonmember applicants, but also alleges more broad-
ly that they have discriminated against "other of
[their] applicants for employment." In view of our
finding that Respondent Locals 373 and 45 have
committed widespread unfair labor practices against
nonmember applicants seeking employment through
their hiring halls, we agree with the recommendation
of the Adminstrative Law Judge that Respondents
must be required to cease and desist from discrimi-
nating against the 22 identified discriminatees, as
well as all nonmember applicants similarly situated.8
We also shall provide that Respondents make whole
the identified discriminatees and all nonmember
applicants similarly situated who sought employment
opportunities during the relevant period for any loss
of earnings they may have suffered by reason of
Respondents' discrimination against them.9
With respect to backpay for the individual discrim-
inatees, and all nonmember applicants who were
similarly situated, the Administrative Law Judge
applied a formula to each Respondent Local where-
by the overall earnings of all applicants, members
and nonmembers, seeking employment through its
referral system would be divided by the total number
of ironworkers who worked out of the hiring hall.
While we agree with the basic formula adopted by
the Administrative Law Judge, we shall modify this
portion of his recommended remedy by taking into
account the net earnings of the individual discrimi-
natees during the relevant period and by providing
for the inclusion of interest. Thus, we shall order
Respondents to make whole the named discrimina-
tees and all other nonmember applicants who were
similarly situated for any loss of earnings they may
have suffered by reason of Respondents' discrimina-
tion against them in the manner prescribed by the
Administrative Law Judge, less their net earnings,
I Respondents have set forth their use of' "requested" referral designa-
tions made pursuant to the operative judicial consent decree as an
affirmative defense to the charges herein. In this regard, the evidence of
substantial falsification of excepted category referral designations by
Respondents has already been discussed. In addition, we note specifically
that Respondents have failed to substantiate the validity of "requested"
designations by producing (1) the separate "Contractors Requisition
Register" required by par. 23 of the consent decree or (2) wntten
confirmation of contractors requests required by par. 27(c) of the consent
decree. Respondents must at least produce such documents, or explain their
failure to do so, in order to meet the burden of proving their defense to
facially discriminatory referrals. Accordingly, the class of "similarly
situated" discnminatees entitled to relief by this Decision and Order shall
include any nonmember applicant for referral identified by the General
Counsel in subsequent compliance proceedings as an individual in
preference to whom a member applicant designated "requested" has been
nonchronologically referred, with the provision that Respondents may
attempt affirmatively to defend any "requested" referral designation by
production and verification of the aforementioned documents or other
evidence of sufficient probity.
together with interest as provided in Florida Steel
Corporation, 231 NLRB 651 (1977).1°
The Administrative Law Judge also recommended
that a neutral monitor-designated and supervised
by the Board but compensated by Respondents-be
appointed to oversee the daily operations and
recording procedures at both hiring halls. In our
judgment, the appointment of a monitor is not
necessary to effectuate the purposes of the Act.
However, in light of the consistent pattern of
discrimination engaged in by Respondents against
nonmember applicants over an extended period of
time, we shall require Respondents to keep and
retain for a period of 2 years permanent written
records of their hiring hall operations and make such
records available to the Regional Director upon
request." We shall further require Respondents to
submit to the Regional Director four quarterly
reports concerning the employment of the 22 named
discriminatees and other nonmember applicants
subsequently found to have been similarly situated.12
In addition, we shall order Respondents to place the
referral registers, for a period of 2 years, on a table or
ledge in their hiring halls for easy access and
inspection by all applicants upon completion of each
day's entries in such registers. Finally, in addition to
a requirement that Respondents post appropriate
notices at their hiring halls, we shall direct that
Respondents cause such notices to be printed in a
newspaper of general circulation within their juris-
dictional area. 13
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that:
A. Respondent International Association of
Bridge, Structural & Ornamental Ironworkers, Local
373, Perth Amboy, New Jersey, its officers, agents,
and representatives, shall:
1. Cease and desist from:
9 See Painters, Decorators, and Paperhangers of America, Local No. 985
(W F Sahualia & Co., Inc.), 194 NLRB 323 (1971); Harold Goldsmith and
Ada J. Goldsmith, d/b/a Superior Maintenance Company, 133 NLRB 746
(1961).
'o In accordance with our decision in Florida Steel Corporation, supra, we
shall apply the current 7-percent rate for periods prior to August 25, 1977, in
which the "adjusted prime interest rate" as used by the Internal Revenue
Service in calculating interest on tax payments was at least 7 percent.
lI See, e.g., Ironworkers Local Union No. 290, International Association of
Bridge, Structural and Ornamental Workers, A FL-CIO (Mid-States Steel
Erection Company), 184 NLRB 177 (1970), enfd. 443 F.2d 383 (C.A. 6, 1971).
12 See, e.g., International Association of Bridge, Structural and Ornamental
Iron Workers, Local 350 (Atlantic County Building Trades Employers
Association), 164 NLRB 644 (1967).
13 See Local 420, United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and Canada, A FL (J. J.
White, Inc.), I I NLRB 1126 (1955), enfd. 239 F.2d 327 (C.A. 3, 1956).
506
IRONWORKERS, LOCAL 373
(a) Causing or attempting to cause the separate
employer-members of Building Contractors Associa-
tion of New Jersey, or any other employer, to
discriminate against any of the following employees:
Henry Arminas
Paul Bongard, Jr.
Frank Castellano
Jeffrey Coleridge
Philip Connell
William Crawford
Joseph Dolinich
Edward Farley
James Fox
John Krusis
Thomas McCloskey
Donald McMahon
Frank O'Neill
Arthur Smith
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 373.
(b) In any other manner restraining or coercing
employees 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 and Order 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 all reasonable
times, any records relating in any way to the hiring
and referral system.
(b) Submit four quarterly reports to the Regional
Director, due 10 days after the close of each calendar
quarter subsequent to the issuance of this Decision
and Order, concerning 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 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 employ-
ees, 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."
14 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 Pursuant to a
(e) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all records, reports, work lists and other documents
necessary to analyze the amount of backpay due
under the terms of this Decision and Order.
(f) Post at all places where notices to employees,
applicants for referral, and members are posted
copies of the attached notice marked "Appendix
A."1 4 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 immediately upon receipt thereof,
and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by 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." 15 to be printed in a newspa-
per of general circulation in Perth Amboy, New
Jersey.
(h) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order,
what steps Respondent Local 373 has taken to
comply herewith.
B. Respondent International Association of
Bridge, Structural & Ornamental Ironworkers, Local
45, Jersey City, New Jersey, its officers, agents, and
representatives, shall:
I. Cease and desist from:
(a) Causing or attempting to cause the separate
employer-members of Building Contractors Associa-
tion of New Jersey, or any other employer, to
discriminate against any of the following employees:
Marcel Bizien
Carl Clarino
Patrick Clarino
Adam Lerie
James Moniello
John Moniello
Michael Moniello
Jack Tagliareni
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 45.
(b) In any other manner restraining or coercing
employees 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 and Order permanent written
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
II See fn. 14, supra.
507
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 all reasonable
times, any records relating in any way to the hiring
and referral system.
(b) Submit four quarterly reports to the Regional
Director, due 10 days after the close of each calendar
quarter subsequent to the issuance of this Decision,
concerning the employment of the above-named
employees and other nonmember applicants subse-
quently found to have been similarly situated. Such
reports 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 employ-
ees, 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 records, reports, work lists and other documents
necessary to analyze the amount of backpay due
under the terms of this Decision and Order.
(f) Post at all places where notices to employees,
applicants for referral, and members are posted
copies of the attached notice marked "Appendix
B." 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 it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to members are customarily posted. Reason-
able 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"1 7 to be printed in a newspa-
per of general circulation in Jersey City, New Jersey.
(h) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order,
what steps Respondent Local 45 has taken to comply
herewith.
"6 See fn. 14, supra.
I7 See fn. 14, supra.
APPENDIX A
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
employer-members of Building Contractors Asso-
ciation of New Jersey, or any other employer, to
discriminate against any of the following employ-
ees:
Henry Arminaus
Paul Bongard, Jr.
Frank Castellano
Jeffrey Coleridge
Philip Connell
William Crawford
Joseph Dolinich
Edward Farley
James Fox
John Krusis
Thomas McCloskey
Donald McMahon
Frank O'Neill
Arthur Smith
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 373.
WE WILL NOT in any other manner restrain or
coerce employees or applicants for employment
in the exercise of the rights guaranteed them by
Section 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 inspection, 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
employment 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 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 entries 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
508
IRONWORKERS, LOCAL 373
earnings they may have suffered by reason of our
discrimination against them.
INTERNATIONAL
ASSOCIATION OF BRIDGE,
STRUCTURAL &
ORNAMENTAL
IRONWORKERS, LOCAL
373
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
employer-members of Building Contractors Asso-
ciation of New Jersey, or any other employer, to
discriminate against any of the following employ-
ees:
Marcel Bizien
Carl Clarino
Patrick Clarino
Adam Lerie
James Moniello
John Moniello
Michael Moniello
Jack Tagliareni
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 45.
WE WILL NOT in any other manner restrain or
coerce employees or applicants for employment
in the exercise of the rights guaranteed them by
Section 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 inspection, 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 employment 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 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 entries 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
discrimination against them.
INTERNATIONAL
ASSOCIATION OF BRIDGE,
STRUCTURAL &
ORNAMENTAL
IRONWORKERS, LOCAL 45
DECISION
STATEMENT OF THE CASE
THOMAs A. RIccl, Administrative Law Judge: A hearing
in this proceeding was held at Newark, New Jersey, on
May 24, 25, 26, and 27, and on June 7, 1976, on complaint
of the General Counsel against three locals - Nos. 373, 45,
and 483 - of the International Association of Bridge,
Structural & Ornamental Ironworkers, together here called
Respondents or the Unions. The final complaint, following
several preliminary ones, and upon which the hearing was
predicated, issued on April 27, 1976, and rests upon seven
separate charges filed. The essential issue underlying the
entire case is whether, in their operation of exclusive
referral hiring halls, the Respondents unlawfully caused
employers in their jurisdictional areas to discriminate
against nonmembers of the pertinent locals in their
employment opportunities, and thereby violated Section
8(b)(IXA) and (2) of the Act. The charges were filed on
various dates beginning July 24, 1975, and ending April 7,
1976. With respect to Respondent Local 373 the complaint
lists 16 employees - all individual ironworkers - as
having suffered illegal discrimination at the hands of that
local; it lists eight additional individuals, again all
ironworkers, as having been prejudiced illegally by Local
45 in its hiring hall; and finally, the complaint names four
ironworkers, all nonmembers of Local 483, as having been
unlawfully refused referral to work by that union. Briefs
were filed after the close of the hearing by the General
Counsel, Respondents, and the Charging Parties.
Upon the entire record and from my observation of the
witnesses, I make the following:
FINDINGs OF FACT
1. THE BUSINESS OF THE EMPLOYERS
Building Contractors Association of New Jersey, a State
of New Jersey corporation, is an association of separate
employers engaged in the business of construction in the
State of New Jersey. For years these members have
authorized the Association to bargain collectively with
unions representing employees of the individual members
on a multiemployer basis, and over the years the Associa-
tion has, on behalf of its members, negotiated and signed
509
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective-bargaining agreements with Respondent Locals
373, 45, and 483. In the normal course of their business
operations the members of the Association have, during the
past 12 months, and therefore a representative period,
caused construction materials and other goods to be
brought from out-of-state sources to their construction
projects in the State of New Jersey valued in excess of
$50,000. 1 find that the Association is an employer engaged
in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
I find that Locals 373, 45, and 483, of the International
Association of Bridge, Structural & Ornamental Ironwork-
ers, are labor organizations within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES 1
In this case there is no dispute as to the pertinent facts,
which prove conclusively on their face the widespread
unfair labor practices alleged in the complaint. Respondent
Locals, through their council, called Northern New Jersey
District Council of Ironworkers, have long been in
contractual relations with the multiemployer group called
Building Contractors Association of New Jersey. The
contract provides in the usual way for hiring halls to be
operated by each of the component locals, five of them,
including these three Respondents. Also according to the
contract and according to law, all ironworkers seeking
employment are to be registered at the hall and referred
out to job assignments in rotation as requests for workmen
are received from separate employers. In further keeping
with the law, the arrangement is that the locals will not
assign their members to work out of turn; i.e., in preference
to other ironworkers who sign the referral registers ahead
of them. It is that conduct, of sending members - of Local
373 and 45 - to fill employer requests despite the fact
nonmembers had signed into the halls before them that the
complaint calls illegal and violative of the statute. By so
sending its own members to work before nonmembers
sitting in the hall and waiting their proper turn, the union
causes the employer, who has contractually agreed to put
people to work only when coming out of the hiring hall, "to
discriminate against an employee in violation of Subsec-
tion 8(a)(3)" in the words of the statute, and thereby itself
violates Section 8(b)(2). See International Brotherhood of
Boilermakers, Iron Shipbuildings, Blacksmiths, Forgers and
Helpers Local Lodge No. 169, AFL-CIO (Riley Stoker
Corporation), 209 NLRB 140 (1974).
A number of contentions articulated in defense will be
considered below. Respondents called no witnesses and
offered no evidence at all. They rested upon conclusion of
the General Counsel's and the Charging Parties' case.
A. The Referral Registers
The proof, showing that both Locals 373 and 45 did
precisely what is charged in the complaint, consists of
At the close of the hearing the General withdrew almost all of the
complaint allegations directed to Respondent Local 483; the single
remaining minor charge against that local will be disposed of at the end of
written referral registers made by Respondents' agents
themselves. They were produced at the hearing by
Respondents in the original and were received in evidence.
You look at a page, run your finger down the list of
numbered signatures, and see one Local 373 member after
another who signed the book after William Crawford on
January 20, 1975, and was sent out to work before January
29, when his name was called out for the first time. For
purposes of making clear at the outset the plain nature of
all evidence, I find, as a first instance, that during the
period January 21 to 28, 1975, inclusive, Respondent Local
373 violated Section 8(bX2) and (IXA) of the Act 15 times
by sending 15 of its members to work, although each had
signed into the hiring hall after William Crawford, who
designated himself thereon as a member of Local 399.
The same kind of pictures appear in the registers of Local
45, its members sent out to work while nonmembers who
had signed in ahead of them were ignored. And this
includes, with respect to Local 45 also, plain members with
no purported designation. As will appear, both Respon-
dents also committed a great many unfair labor practices
where the conclusions rest on inference (Radio Officers'
Union of the Commercial Telegraphers Union, AFL, [A. H.
Bull Steamship Company] v. N.LR.B., 347 U.S. 17), but at
this point there is no need for implied factual findings of
illegality.
Actually, Local 373 sent 42 of its members, all of whom
signed that register after Crawford, out to work assign-
ments during the 9-day period January 21 through 28, all
this while ignoring the Local 399 registrant. Of the 42 in the
book, 5 were labeled foremen, 14 were labeled stewards,
and 6 called replacements. As to the 15 whose out-of-turn
assignement proves the 15 unfair labor practices thus far
found, there is not even a pretense that they fitted any
category such as might excuse the illegal acts shown. In his
brief, counsel for Respondents called these 15 unquestion-
able unfair labor practices, plus other like complete
violations of the statute shown in the Union's records by
the hundreds "mistakes." Plain human experience makes
this defense unacceptable.
The first charge in this entire consolidated proceeding
was filed in July 1975 against Local 373. The use of these
designating words - foreman, steward, replacement, etc.,
- takes on added meaning if the register of January 1975
and that of November through December 1975, again as
illustration of the whole, be compared in this respect. One
of the exhibit referral books covers the period November
11, 1975, to January 13, 1976. During those 2 months 600
ironworkers signed the book and the Local 373 agents in
charge referred to work 200 members of their own local. Of
these, 106 were marked "steward," 50 were marked
"foreman," 43 were marked "request," and only one name
appears blank! In contrast, during the 9-day period a year
earlier - 156 of 42 Local 373 were referred to work as
nothing more than plain ironworkers. Given the contrast
between January and December of the same year, and
given the filing of the charge between the first and second
numerical pictures, a rational mind asks: What are the
this decision. The findings of facts and conclusions of law which follow are
therefore concerned only with Locals 373 and 45.
510
IRONWORKERS, LOCAL 373
probabilities that such total designation of Local 373
members as special cases of one kind or another was tied to
their common local union membership, and not to the
mere assertion in the registers, unsupported by any
objective proof, of special individual status?
As to Local 373, referral registers were put in evidence
for the period January 15, 1975, through June 10, 1976, and
for Local 45 for the period February 11, 1975, to June 10,
1976. The first group consists of 10 books, each with 50
numbered pages, each page with 16 sequentially numbered
employee signatures. The Local 45 records consist of two
volumes, each with 50 pages, and each page also with 16
names.
Crawford is I of 16 ironworkers named in the complaint
as having suffered illegal discrimination in direct conse-
quence of illegal operation of the hiring hall by Local 373.
All 16 of these are members of ironworker locals other than
Local 373, all are experienced ironworkers - some in the
trade as long as 10 or 20 years, and all have been shaping
up - i.e., registering for work - in the Local 373 hiring
hall for a number of years. The complaint also alleges that
other hiring hall registrants, also members of locals other
than Local 373, although not identified in the complaint
and who did not file charges, suffered similar illegal
discrimination in the operation of this hiring hall. As to
Respondent Local 45, the complaint names eight individu-
al ironworkers, again also not members of Local 45, as
having been illegally passed over out of turn in work
assignments in the operation of the Local 45 hiring hall.
For purposes of considering certain defense contentions, it
suffices at this point to note that the referral registers in
question show violations of Section 8(bX2) by the two
Respondents totaling in the hundreds. Each of the named
discriminatees, at least, signed into the hiring halls a
number of times, and the registers show multiple violations
occurring after most of the times each of them signed their
names to the registration books throughout the entire
period.
The extent, the multiplicity, the flagrance of the unfair
labor practices shown without question in this case are so
great that there is an inescapable tie, even at this stage of
the Board proceeding, between what unfair labor practice
findings ought be made and what remedial action must be
taken forthwith. In fact, because it is not possible here to
report and specify each and every instance when a Local
373 or Local 45 man was unlawfully preferred to the
outsiders, the defense arguments - discussed below - are
intentionally aimed at frustrating simple handling of the
case before the Board and thereby inordinately delying and
perhaps even making impossible eventual correction of an
intolerable continuing situation. Some comments are
therefore in order, so that the purpose of the Act - always
the correct objective of all Board proceedings - not be lost
in the shuffle.
The Local 373 registers show the dates when each of the
16 charging parties registered, the date his name was called
for referral in the hiring hall following each of his
particular signings in, and the precise dates - with names,
skills, employers, when the great number of Local 373
members, each of whom had signed after the outsider, were
referred to work ahead of him nevertheless, always prima
facie proof of an unfair labor practice. The following chart,
set out here for the purpose of illustration, is an extract
from the register of the picture it reveals as to what Local
373 did after every one of the many signings in by
Charging Party Jeffery Coleridge.
JEFFEREY COLERIDGE LOCAL 373 MEMBERS REFERRED OUT-OF-TURN
Date Date
Signed in Referred
Marked
Foreman
Marked
Steward
Marked Marked
Replacement Returned
Marked No
Requested Mark
3/11/75
4/9/75
4/17/75
5/9/75
6/11/75
6/26/75
7/17/75
7/25/75
8/8/75
9/23/75
10/8/75
10/16/75
10/27/75
12/12/75
10
7
5
12
14
14
5
6
6
3/19/75
4/15/75
4/23/75
6/10/75
6/25/75
7/15/75
7/24/75
8/7/75
8/19/75
10/7/75
10/15/75
10/23/75
11/14/75
12/30/75
17
9
3
13
13
13
7
7
10 20
1 8
5
8 26
3 14
1
1
1
2
1
4
3
31
2
1
1
3
1
3
3
7
2
1
15
9
4
3
7
3
6
1
3
10
2
3
1
1
3
4
511
512
1/23/76
2/18/76
4/14/76
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2/17/76
3/22/76
4/27/76
4 19
27 29
9 11
4/28/76 5/29/76 5 23
156 237
Comparable to the case, already mentioned, of only one
of the registrations by Crawford in January 1975, here the
illustrative chart shows Respondent sent 551 of its
members to work out of turn ahead of Coleridge, as a total
picture, after the 18 times he registered in the hiring hall.
Inasmuch as next to the names of 84 of these particular 551
members of Local 373 there is no mark, and therefore no
claim they were on any basis entitled to preference, I find a
separate violation of Section 8(bX2) with respect to each of
these 84 referrals.
As part of his brief submitted after the close of the
hearing, the General Counsel attached voluminous statisti-
cal analysis of all of the referral registers of both Local 373
and 45, showing, as does the above chart for Coleridge,
every out-of-turn referral made by Respondents of their
members following the many signings in by each of the 16
outsiders as to Local 373, and by each of the 8 outsiders
with respect for Local 45. The summary consists of 234
pages, each page listing about 30 members of Respondents
as having been so preferred. If in overall appraisal of this
total statistical picture, the continuing registrations of each
of the 24 outsiders, be viewed in isolation from the rest of
the case, it would appear that Respondents violated the
statute about 7,000 times; i.e., 234 times 30. But the records
also show that during many periods there was more than
one outsider - maybe two, three, or more - whose name
was ahead of the preferred member. This means that a
great many particular out-of-turn referrals are listed under
the statistical picture pertaining to more than one of the
prejudiced nonmembers. Can it be said that when Smith, a
Local 373 member, was one day referred out of chronologi-
cal order Respondent violated the statute twice, or three
times, instead of once? In a case of this magnitude,
reflecting so pervasive and fixed a determination to
disregard the law, it hardly matters. It would be a mistake
to belabor such details once it has been found that
Respondents, acting as here, have violated the statute at
least hundreds of times, no matter how the numbers be
added.
But while this question may smack of philosophical play
in terms of how many unfair labor practices were
committed, it takes on a very real and substantive meaning
when it comes to deciding just who was hurt by the illegal
conduct, and just how much money earnings each of the
prejudiced ironworkers lost in consequence. In short, how
do you remedy this sort of continuing misconduct, to say
nothing of putting a stop to it? When a member of the
local, Smith, is referred out of order, which two outsiders
- Brown and Jones - who signed the register before him
and are still waiting for work lost how much because of the
discrimination - Brown? Jones? both? The very unprece-
dented complexity revealed by this single example, multi-
plied hundreds of times as it is here, dictates a rational
overall look at both what findings of illegal conduct are
warranted and what thought should be given now to the
appropriate remedy.
1
1
2
20 4
B. Defense
3
15
50
1
2
6
4
84
I. Due process
Counsel for Respondents protests against the entire
proceeding on the ground that his clients are being denied
"due process" because they have not been told what "the
exact violations alleged" are, because no proof of wrongdo-
ing "was put into evidence," because the accused locals
were not informed of "the exact nature of the charges" they
are "called upon to defend." In a very real sense, the
"truth" in this case, the "evidence" of wrongdoing was
brought to the hearing by Respondents themselves. There
certainly is no surprise, and there certainly is no failure to
show the proof to Respondents. The referrals, without end,
of union members who signed and dated the books after
the nonmembers, are recorded in the handwriting of
Respondents' business agents, the men who run the hiring
halls. To say that they must be shown what they themselves
did, after they themselves brought their own records to
court, is no more than an attempt to make a mockery of
both reason and the rules of evidence. I find no merit in
this defense argument.
2. Consent decree
In 1972 a consent decree issued out of the United States
District Court for the District of New Jersey in an action
brought by the United States against, among other
defendants, the Northern New Jersey District Council of
Ironworkers and its five locals, including the three
Respondents, to enforce Title VII of the Civil Rights Act of
1964. Included in the court decree are strictures against the
halls to the effect that, in the operation of their hiring halls,
they not discriminate against registrants for job referrals on
account of "race, creed, color, or national origin." In
detailing the exact procedures according to which the
hiring halls must be run, the decree then expressly
incorporates a number of the precise applicable provisions
spelled out in the Ironworker Council's collective-bargain-
ing agreement with the Building Contractors Association.
Among these, and pertinent here, is the understanding that
"no ... applicant shall be ... denied referral because he
is not a union member." And, of course, the hiring halls
remain even today subject to supervision and scrutiny of
the District Court to prove compliance with its every
provision.
I find no merit in the conclusionary, all-embracing
statement that because Respondents must operate their
hiring halls in conformity with the civil rights aspect of this
consent decree, the National Labor Relations Board is
precluded from testing their referral registers after a charge
is filed alleging violations of the proscriptions of the
National Labor Relations Act. I can conceive of a case
where John Smith was passed over on January I in favor of
Joe Brown who registered on January 2, and where a civil
court has ordered the union to send Brown out right away,
IRONWORKERS, LOCAL 373
now, in affirmative action - to use a modern phrase. The
Board might well yield in that specific situation, preemp-
tion or no preemption. But when a District Court orders a
union not to discriminate against black or Spanish people,
and even to do something extra to balance the prejudices of
the past, it does not follow that respondents in Board
proceedings may therefore utilize the hiring hall to
monopolize virtually all available work in an entire
geographical area in flagrant flouting of the clear prohibi-
tions of this Federal law. The argument rests fundamental-
ly upon poor logic anyhow. It does not follow from the fact
that you may not discriminate against blacks, etc., that you
may therefore discriminate against members of another
local union. And this is what the documentary evidence
proves time without number in this case. But even apart
from all this, the decree itself literally restates the
provisions of Section 8(b)(2) of the Taft-Hartley Act. The
first caveat on the subject of "referrals" in the consent
decree reads:
The referral system shall be operated on a nondiscrimi-
natory 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.
In his brief the General Counsel correctly paraphrases
this defense as an attempt to shift the burden of proving an
asserted affirmative defense to the prosecution side of the
case. The Union's referral registers are an overwhelming
prima facie case if there ever was one - violations of
Section 8(b)(2) without end for months and continuing
today. The court decree says the Union could send
members of minority groups out to work even before others
who signed in ahead of them. Now the Union says: "We
had, and we have a right to do that, Taft Hartley or not.
Prove to us and to the Board that we did not - i.e., prefer
minority people - in each and every one of the hundreds
of instances where our records show preference to our own
members." It is a mistaken notion, or defective reasoning,
to say that when one party has the burden of proving the
positive, you assume the positive so long as the opponent
fails to disprove the positive, or to prove the negative.
Moreover, there is the determinative fact that the Respon-
dents here do not even claim the positive to be true. While
saying it had a right to send blacks to work out of turn,
Local 373, as well as Local 45 for that matter, did not even
make the statement that what appears as pure discrimina-
tion against nonmembers was in fact positive discrimina-
tion in favor of minorities. It could hardly make the
statement. Of the 200 Local 373 members referred to work
between November 17, 1975, and January 13, 1976, only 12
were black; and of the 42 Local 373 members referred out
to work from January 21 to January 28, 1975 - all
- The registers also show that in addition to L.ocal 373 or Local 45
members reterred out of turn with no mark, or marked "foremen."
"steward." etc.. still others were also sent out to work out of turn. with
respect to the dates when the Charging Parties signed the registers The
underlying collective-bargaining agreement provides that each Ironworker.
,hen registering for work, must indicate his particular expeltise within the
trade. This means he marks himself for the following kinds of work or skill:
connecting work. structural work, ornamental work, machine rigging,
tinishinig work. sheeting. fencing. rod. swelding. welding structural and
selding rods
preferred against Crawford's earlier registration - no
more than three were black!
I view all of Respondents' talk about that consent decree
as amounting to no more than an opening statement that
they intended to prove an affirmative defense to defeat the
complaint. They left it at that, and came forth with nothing
in the form of evidence or proof. The record stands - an
absolute prima facie case upholding the complaint - as
though counsel for Respondents had not spoken at all
about the consent decree. If Local 373 had proof that 15 of
its members who were improperly assigned ahead of
Crawford in January 1975 - only 3 of them black - were
in fact so favored as a form of affirmative action to prefer
minority groups in compliance with the court decree -
and never mind Section 8(bX2) of the Act - all it had to
do was come forth with proof. It did not.
3. Foremen, stewards, etc.
The argument that the locals had a right in certain
circumstances to prefer particular ironworkers, even if they
happened to be members of Respondents, and that
therefore the General Counsel has not satisfied his primary
burden of proof, is made a second time - albeit limited to
less than all the local men who were referred out of turn -
in a reference apart from the court decree. The contract
between the Ironworkers Council and the Contractors
Association deals with referral of foremen, stewards,
replacements, and employees expressly requested by name
by a particular employer, and the General Counsel
concedes that ironworkers who met such special qualifica-
tions spelled out in the collective-bargaining agreement
could be referred out of turn. I find this defense argument
also unconvincing in the light of the total record. But the
interest of clarity requires the finding now that, even
assuming, contrary to my ultimate conclusions, there was
merit in this defense position as to some of the preferred
members of Local 373 or Local 45, a very substantial
number were illegally favored without question because as
to them the defense assertion cannot possibly apply. No
mark of any kind was ever placed near the names of
perhaps hundreds of preferred local men.
As the months went on, starting early in January 1975
before any charge was filed, continuing into the second
half of the year with more charges being filed, and then
through the early part of 1976 as the hearing approached,
more and more of the preferred members were designated
foremen, stewards, etc. Indeed, there came a time when
practically every member of Local 373 was recorded as in
one special category or another. The inference that this
progressive pattern tells a revealing story of deceit is
inescapable. 2
In an ordinary unfair labor practice proceeding before
this Board, once it had been found that a respondent
When registrants are referred out in response to requests received from
contractors. they can only go for work within their indicated skills. In each
and every instance where the preferred assignment of a Local 373 or Local
45 member is shown in the General Counsel's appendixes it means a man
as shown on the fact of the referral register was sent to do the precise
kind of work for which the nonmember had registered before him. All of
those members of Respondents who. although referred out of turn, appear
(Continued)
513
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
committed hundreds of separate violations of the same
section of the statute, it really is immaterial whether or not
it also committed more, even if the additional ones
themselves run into the further hundreds. But there are
significant and important aspects of this case that demand
special consideration. In a very substantial sense the
question of whether or not Respondents violated the
statute is intimately interwoven with the question of the
appropriate remedy. The unfair labor practices already
found reveal an unmistakable and fixed determination in
these locals to violate the statute flagrantly and persistent-
ly. The pattern of misconduct gives promise only of
continued indifference to all legal proscriptions. It is
appropriate therefore to put at rest the claim that because
the contract and the law do permit out-of-turn assignments
of a local union member as a steward or a foreman, etc.,
Local 373 or Local 45 can simply continue to mark all of its
members with such one-word titles and under that cover
send out all its members while ignoring all other regis-
trants. As noted, from November 11, 1975, to January 13,
1976, Local 373 marked 199 of the 200 of its members
assigned in such fashion. A numerical breakdown of the
total Local 373 registers, spanning a 15-month period,
shows that it sent 1,048 of its members to work as
"stewards," while putting the title on only 383 nonmem-
bers. This disparate treatment bespeaks a double message
when coupled with the fact that during the same period
more than twice as many nonmembers signed the registers
as did Local 373 members - 5,210 compared to 2,410. But
the contract provides only that "senior, experienced
applicants" may be referred out of chronological sequence
to work as stewards. So far as this record shows, the outside
applicants - the Charging Parties for the least - were as
experienced as the bulk of the local members. There is no
basis for presuming that the ratio of experienced ironwork-
ers between the two groups was 6 to I in favor of the local
members. But that is precisely what the relative number of
steward referrals shows against the total registration.
As in the case of the civil rights minority group
argument, here the locals argue they had a right to prefer
experienced men even if they were members. But it offered
nothing even tending to justify such a meaningful dispro-
portion in its selection. It may well have had objective,
nondiscriminatory basis for the out-of-turn selection of
some of these, but surely not for so large a number. The
applicable rule of reasoning is called the law of concomi-
tant variations.3
The revealing numerical picture applies with equal force
where Local 373 members were marked "foreman" when
referred to work out of chronological order. Again, the
contract provides that when a contractor "requests a
specific person to serve as a foreman on a job," that man
could be sent out so long as his name was on the register,
no matter when he signed in. Can it be presumed - absent
any evidence in support - that so many Local 373
members were requested and so few nonmembers? Refer-
ence has already been made to the register for November
to have been sent to do the kind of work for which the Charging Parties did
not then register, have been ignored, both in the appendixes and in
discussions in this Decision.
I The cumulative indications of false labeling take many forms. Among
17, 1975, to January 13, 1976, where 50 of the 200 Local
373 men sent out were marked "foreman." More glaring is
the picture shown in the immediately following register -
that for January 13, 1976, to March 18, 1976. Here, 784
ironworkers signed the book; of these about 267 were
Local 373 members and about 517 nonmembers. Fourteen
Local 373 members were not in the hall when called, and
therefore were marked "absent." Of the remaining 253, all
sent out, the record shows clearly 107 were marked
"steward," 75 were marked "foreman," 57 were marked
"requested," and about a dozen were marked ambiguously.
Can it be, again, that all Local 373 men were "senior,
experienced men," or requested by employers to act as
foremen, or requested by such a diversity of contractors for
unexplained personnel attachment? I think not. I find that
a substantial number of Local 373 members who are
referred to work marked "stewards," "foremen," or
"requested" - and it is not necessary to fix the precise
number - were not specially qualified, or requested, and
that when Local 373 sent them out it violated the statute in
the vast majority of such cases.
But what most supports this finding of repeated unfair
labor practices and points to hidden purpose - as
distinguished from nondiscriminatory objective selection
- is the further fact that during the January 13 to March
18 period alone, of the 75 Local men called "foremen," all
but 2 were referred to work out of chronological order -
i.e., while men who had signed in ahead of them sat and
watched in the hall. In significant contrast, all but 4 of the
22 nonmembers who were marked "foremen" on registers
went to work only when their names, as listed, entitled
them to assignment.
The pattern holds with respect to "stewards" referred
during the same 2-month period. There were 93 men
marked "steward" and 69 marked "nonmembers." But, of
the 69 nonmembers only 3 were referred out of chronologi-
cal order, while of the 93 Local 373 men, all but I were
given preferential assignment; i.e., out of chronological
order.
C. Local 45
All of the foregoing considerations apply with equal
pertinence to what is revealed in the referral registers of
Local 45. The defense argument relying on the minority
rights consent decree, the contractual privilege of employ-
ers to request special referrals for foremen and even for any
ironworker personally desired by a contractor, and the
right of a union to select men to serve as stewards are
addressed with respect to Local 45 exactly in the same
words as they are advanced to explain away the primafacie
case proved against Local 373 by its registers. For the
period February 11, 1975, to June 10, 1976, about 1,526
ironworkers signed into the Local 45 hiring hall, according
to its records; of these, only 45 are marked "black." The
percentage ratio between black and white cannot begin to
justify the extent of out-of-turn preference shown here for
Local 45 members, to say nothing of the fact there is no
the members it sent out to work as stewards were approximately 65 Local
373 apprentices and trainees. On the face of the registers, these could not
have fallen in the special category of "senior, experienced men."
514
IRONWORKERS, LOCAL 373
evidence - offered or claimed - that color was the reason
for the proven discrimination pattern.
As he did with the Local 373 registers, the General
Counsel prepared, and attached to his brief, a statistical
summary taken from the Local 45 referral registers as they
reveal out-of-turn referrals of Local 45 members after
many instances when the eight nonmembers named in the
complaint signed into this hall. The following chart sums
up a significant part of the information set out in the
statistical picture:
LOCAL 45 MEMBERS REFERRED OUT-OF-TURN TO
THE PREJUDICE OF THE NONMEMBERS PREVIOUSLY
SIGNED IN
NONMEMBER TIMES
REGISTERED
NO. MARK
AFTER NAMES
MARKED
"REQUESTED"
Jack Tagliarini
John Moniello
James Moniello
Michael Moniello
Carl Clarino
Patrick Clarino
Marcel Bizien
Adam Lerie
I cannot and do not believe that so many members of the
local, all repeatedly given deliberate preference in work
assignments over the nonmembers who signed in ahead of
them, could possibly have been specifically requested by
the great number of employers that must have been
involved. But again, as to all of those Local 45 men next to
whose names there is no distinguishing mark at all, it was a
pure violation of Section 8(b)(2) of the Act by Respondent
Local 45 to have referred them. How many separate
violations were committed? Here too there is an overlap
shown in the registers of Local 45. But for the least there
occurred 109 separate unfair labor practices, for that many
unmarked members were preferred to Adam Lerie after he
signed in.
As in the case of Respondent Local 373, I find that
Respondent Local 45 violated Section 8(b)(2), as alleged in
the complaint, at least 109 times, to the detriment of the 8
employees named in the complaint.
D. Further Contentions by the General Counsel
I. All 16 ironworkers named in the complaint as having
suffered illegal discrimination in the operation of the Local
373 hiring hall applied for membership in that local in 1975
or 1976 and were refused. Likewise, all eight of those, also
named in the complaint, who were hurt illegally by Local
45, were denied membership applications filed with that
Respondent. The General Counsel asks for a finding that
an additional reason why the two Respondents referred
their members out of turn ahead of the named individuals
was retaliation for having presumed to apply for member-
4 International Brotherhood of Boilermakers. Iron Shipbuilders, Block-
smiths, Forgers and Helpers Local Lodge No. 169. AFL-CIO (Riley Stoker
Corporation), 209 NLRB 140(1974).
ship. Clearly, Respondents did not want these men in their
locals, and I suppose this is evidence of dislike for them in
the eyes of Respondents' officers. But it would add nothing
to the strength of the affirmative evidence to make such a
further finding. If a union ignores members of other locals
who timely register in the hiring hall and by such deliberate
denial of their statutory rights to employment under an
exclusive hiring hall arrangement commits a complete
unfair labor practice 4 - as already found in this case - to
point to other indications of an intent to violate the statute
in the very same illegal act is no more than adding color.
2. Another assertion by the General Counsel at the
start of the hearing was that he intended to prove
Respondents favored friends and relatives of their mem-
bers against the same named individuals. There is no
supporting evidence to warrant such a further factual
finding.
3. Still another element of proof of illegal discrimina-
tion, again as asserted by the General Counsel, is that when
they did refer nonmembers albeit after first favoring the
Local 373 or Local 45 men, Respondents sent the strangers
to jobs of very short duration. And some evidence was
offered that does prove many assignments to the outsiders
were indeed for only I day, perhaps 2 or 3 days. The W-2
forms used for this purpose also show, however, that on
other occasions the outsiders went to work that lasted
much longer. But of greater significance, on this point, is
the further fact that there is no indication that could
support any meaningful finding that the local men were in
fact sent to longer assignments. There is proof, in another
form, showing without question that Local 373 members
OTHER
MARKS
7
6
5
4
5
4
3
7
41
42
39
51
36
9
52
109
46
49
51
39
49
12
61
55
20
24
22
16
24
11
27
15
515
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
earned much more during the years 1975 and 1976 than did
the Charging Parties. But to say that the discriminatees, in
addition to having been sent out less frequently, as shown
by the referral registers, were also sent out to less desirable
jobs would require inquiry into what kind of jobs were
given the local union members. Absent such evidence there
can be no comparison between the two groups.
4. As to Local 45, there is another form of documentary
evidence that does add to the quantum of affirmative proof
supporting the basic complaint allegation - i.e., that that
local really did favor its members without regard to the fair
distribution of jobs theoretically guaranteed by the hiring
hall arrangement. This evidence does not go to intent or
reason for discrimination, but rather to the fact itself of
discrimination. On all the projects where work covered by
the contract between the Ironworkers Council and the
Employer Association is performed, there is a steward who
makes a weekly report to the Ironworkers Union Pension
Fund. These are called steward reports, and in each
instance show the names of every employee on the job, the
local union of which he is a member, and the number of
hours worked during that week. Perhaps a thousand of
these steward reports were received in evidence, for the
period January 1975 to June 1976. As to these exhibits, still
original records maintained by Respondents, the General
Counsel prepared a third statistical picture, also attached
to his posthearing brief.
It will be recalled that the 8 outsiders who signed into the
Local 45 hiring hall, together registered a total of 41 times.
The steward reports show that in just about each and every
such instance members of Local 45, who signed the
registers after the outsiders, worked on projects covered by
the collective-bargaining agreement, not only as assigned
out of turn from the hall, but to a much greater frequency
on jobs that are not mentioned in the registers at all. And
they performed this work - detailed without end as to day
and place - during the very period when their names
appeared on the registers recording them as ostensibly
waiting for work. As the General Counsel asserts, the
registers of Local 45 are false. The collective-bargaining
agreement does provide an employer may request "an
applicant" out of the hall by name. But these men went
from one job to another - always as reported by the
stewards - without their names ever going back on the
register. The local is required to keep a record of all such
requests by employers for "applicants," but although
contending all these members "had been requested"
Respondent did not produce its record in this regard.
Again, these steward reports are not necessary to help
prove the essential complaint allegation, for the referral
registers - even in the case of Local 45 - more than
suffice to establish continuing, repetitive, and multitudi-
nous violations of the statute by Local 45.
E. Joseph Bucci
Joseph Bucci's name appears in the complaint as an
alleged discriminatee but without specific reference to a
particular local respondent. He finished high school in
June 1975 when 18 years old, applied for entry into the
Ironworkers Union Apprenticeship Program, failed the
"entrance exam" and was so notified in November. He
then received a notice advising him he could appeal the
ruling but he did not do so. At the hearing he testified that
he went to the Local 45 hiring hall on December 1, 1975,
where Babe Venner, business agent of Local 45, asked who
was he; when he answered "Joe Bucci," the business agent
asked did he have an Ironworkers book. Bucci said no, and
then, according to his testimony, the business agent "closed
the glass window and that was it." Bucci never again
thereafter spoke to any union agent. I will recommend
dismissal of the complaint as to this man. There is no
grounds for holding he was entitled, considering all the
applicable provisions of the relevant collective-bargaining
agreement, to register in this hiring hall.
F. William O'Neill
This man's name appears in the complaint as having
been illegally referred out of the Local 483 hiring hall.
There were, at the start of the hearing, three other
ironworkers named in the complaint as having been denied
proper referral by that Respondent - Wilkens, Philipchuk,
and Clark. As to the last three, the General Counsel
withdrew their names from the case at the close of his case
in chief. O'Neill's story is the only remaining part of the
case against Local 483.
He said he went to the union hall on August 25, 1975,
because a certain Mr. Conklin, owner of a company called
Senia Construction, had told him that he, Conklin, would
arrange, or had arranged, to have some agent of the
employer request O'Neill's special referral to the job. The
witness said he sat in the hall that day but was not sent to
that particular job. He was referred out to work 3 days
later.
This is the totality of the testimony, or proof of any kind,
said to establish that Local 483 did anything illegal with
respect to this man. It is the purest hearsay and nothing
else. I shall recommend dismissal of the complaint as to
William O'Neill also.
G. Frank O'Neill and Jack Talgliareni
Frank O'Neill, a member of Local 158 of the Ironwork-
ers International, registered at the Local 373 union hall 16
times during 1975 and the first half of 1976. He was
subjected to the same discriminatory treatment as were the
other nonmembers of Local 373 - about 300 names of
Local 373 men appearing on registers of having signed in
after him but being referred out first. When his name was
called in the hall following his 16 registrations - although
always belately - 13 times he was present and accepted
assignments, where he went and worked. Three times he
was absent. His record of absences is not abnormal, for
absences are marked throughout the registers next to the
names of all kinds of registrants, members of Local 373
included.
Tagliareni, a member of Ironworkers Local 399, regis-
tered six times in the Local 45 hiring hall, and also like the
other named claimants here was repeatedly passed over -
according to this Respondent's registers - in favor of later
registrants who were members of Local 45. Five of the
times Taglareni's name was belatedly called, he was
present and sent out of work. What happened the sixth
516
IRONWORKERS, LOCAL 373
time is not clear in the registry book because the
appropriate place for notation was simply left blank.
During cross-examination of these two men at the
hearing it was brought out that both have at times worked
as ironworkers under other assumed names. The reason for
such activity, the timing, the relationship between that and
the referrals and the discriminations shown here, does not
appear. Whatever the fact of a man using more than one
name when working at the same trade may mean in other
contexts, or under other rules and laws, it has no significant
relationship to the question presented in this case. They
sought work out of this hall, they accepted it when it was
offered, and they were unlawfully denied referrals to which
they were lawfully entitled. The continuing unfair labor
practices committed by Respondents hurt them as well as
others named in the complaint. There is no reason
therefore for viewing them in any different light so far as
this proceeding is concerned.
H. Charles and Joseph Thom
These two men are brothers who signed into the Local
373 hall nine times, all but once together. They often
marked the book "one car," giving the Union dispatcher to
understand they wanted an assignment that would make it
possible for both of them to travel to work together - in
one car. And they were sent out in that way. Eight times
they signed together; of these, four times they were sent to
the same employer on the same day, twice their names
were called on the same day and both were absent from the
hall, once there is a blank space in the register after both
names, and once, again their names called on the same
day, Charles was absent and Joseph went to a job. The
only other time when either name appears on the register is
when Joseph signed alone, and eventually, albeit belatedly,
was sent out alone. That their concept of employment as
ironworkers required joint employment as a regular
arrangement, is further shown by a picture of their
earnings, also placed in evidence. The two principal jobs
they held were with Vican Construction and with Sudler
Construction. At Vican, Joseph earned $8,063 and worked
99 days, while Charles earned $7,680 and worked 94 days.
At Sudler, Joseph earned $3,435 and Charles $3,306, while
Joseph worked 42 days and Charles 41 days.
I do not think there can be a finding in this case that
Local 373 violated the Act respect to these two registrants
in its hiring hall. They used the hall for work they could get
that fitted their special circumstances and needs. To
conclude that the Union treated them differently than it
treated its own members would require that it in fact sent
its members out to double jobs, or assignments where two
men could travel to work in one car. There is no such
evidence, and none was offered. I shall therefore recom-
mend dismissal of the complaint with respect to Charles
and Joseph Thom.
I have had marked three of the Appendixes (A, B, and C)
attached to the General Counsel's brief as Administrative
Law Judge Exhibits: Administrative Law Judge Exhibit I
is the statistical picture drawn from the Local 373 referral
registers and showing all referrals of Local 373 members in
preference to the 16 nonmembers named in the complaint
who signed in ahead of the preferred members. Adminis-
trative Law Judge Exhibit 2 is the statistical picture drawn
from the Local 45 registers and showing the like out-of-
turn referrals by that Respondent vis-a-vis the earlier
registrations by the other eight outsiders named in the
complaint. Administrative Law Judge Exhibit 3 is the
statistical picture drawn from the steward reports of Local
45, showing about 1,000 instances when its members were
working on contract jobs in total disregard of the exclusive
hiring hall. In order that the closing findings of unfair labor
practices committed be better understood by any reviewing
authority, I now receive into evidence Administrative Law
Judge Exhibits 1, 2, and 3.
I find that, in every instance where Local 373 and Local
45 referred their members to work in preference to
nonmembers who had signed into the hiring hall ahead of
them, and where the member's name bears no special mark
of designation in the book, all as shown in the original
referral registers received in evidence, Respondents violat-
ed Section 8(bXIXA) and (2) of the Act. I also find that all
instances, again as precisely shown in the referral registers,
where the two Respondents referred members in prefer-
ence to previously registered nonmembers, but marked
their names "foreman," "steward," or "requested," they
violated the same section of the statute more than half of
the total times they did so. The realities are that there must
have been some occasions when such "marked" out-of-turn
referrals in fact conformed with and were therefore
justified by the provisions of the underlying collective-
bargaining agreement. With no less certainty, there must
have been occasions when the use of the labels was not in
keeping with the contract exceptions to the hiring hall
rules. In the light of rational inferences arising from the
very significant related numbers revealed on the total
records, I think at least half of such referrals in truth were
no more than regular, nonexceptional assignments, and
probably even many more. Inferences of illegal motivation
do arise from numerical imbalance; see United States v.
Ironworkers Local 86, 443 F.2d 544 (C.A. 9, 1971), cert.
denied 404 U.S. 984 (1971). For purposes of this Decision
these findings will suffice.
IV. THE REMEDY
It has been held that in special circumstances the Board
may, indeed should, fashion unusual remedies. Where the
violations of the Act committed are of extraordinary
pervasive nature, where they are of almost unlimited
magnitude, if the remedy imposed is to have any justifica-
tion at all it too must be of a force and character to match
the offenses. Long ago the Supreme Court said an
employer must bargain with a union which in the end
concedes it represents no present employees, and the
reason was because emphasis upon the conventional meant
frustration of the very purpose of the statute in that case.
Franks Bros. Company v. N.LR.B., 321 U.S. 702 (1944).
And more recently the Court ruled that where an
employer's unfair labor practices are sufficiently "fla-
grant," "egregious," it could be ordered to extend exclusive
recognition to a union, and bargain collectively with it,
notwithstanding there is no showing it was ever in fact
authorized by a majority. N. LR.B v. Gissel Packing Co.,
Inc., 395 U.S. 575 (1969). This case at bar brings to light
517
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
still another instance of such widespread flouting of the
law, such longstanding, repetitious, and pervasive viola-
tions of the statute, that the normal or usual remedial
Board techniques are pointless. In fact, the record, as a
whole strongly suggests that these two local unions are
counting upon the standard procedural delays inevitably
tied to the usual Board practices in order to continue right
on with their now long-established practice of denying
work to any hiring hall applications but their own
members. It is for this reason that Respondents demand to
be shown now each and every instance where they in fact
prejudiced a man. That infinitessimal question alone, were
it to be permitted to stall this proceeding, would mean
months of detailed bookkeeping before a Board finding of
any kind could issue - with Respondents all the while
continuing the illegal practices of the past. This is why I
think finding a few hundred separate violations suffices
instead.
But the same delay - reaching into years - is sought
obliquely via the make-whole route. In the normal case,
after the Board finds an unfair labor practice was
committed, a check is made to ascertain how much the
discriminatees lost in wages. The standard backpay
specifications detail to the penny precisely how much
Smith "would have earned" had the union not ignored his
right to work. In this case it is not possible to restructure
the past - i.e., it is not possible to determine with any
rational degree of certainty, how much each of the 22 (the
Thoms excluded) individuals named in the complaints -
to say nothing of those in fact discriminated against but
not yet identified! - would have earned had they been
sent to work in proper rotation. The inquiry in each of
maybe a thousand instances would become so ramified and
speculative that in the wasted morass of time and energy
the misconduct would simply remain unremedied. Counsel
for the locals correctly said, at the hearing: "Neither of us
are that young to do that."
Two definitive elements in the remedy are dictated in this
case. Of course, as always, Respondents must be ordered to
cease and desist from further violations of Section
8(b)(l)(A) and (2) of the Act in the operations of their
exclusive hiring halls. There must also, however, be: (1) a
monitor - designated and supervised by the National
Labor Relations Board but compensated by the two
Respondent Locals - to oversee the day-by-day operation
and recording of both the Local 373 and Local 45 hiring
halls; and (2) an immediate order by the Board directing
the two Respondents to pay, to each of the 22 named
discriminatees, an amount of money to bring their 1975
earnings, and their first half of the year 1976 earnings, out
of these halls, up to a par with the average earnings of all
Local 373 and Local 45 members who shaped out of these
halls during the same periods.
As to the first point - designation of a neutral
overseeing monitor - if the facts of this case, as already
explained above, are not sufficiently persuasive to a
reviewing authority, if the logic and necessity for such a
5 "the burden is upon the employer to establish facts which would
mitigate that liability." N.LR.B. v. Brown & Root, Inc., 311 F.2d 447, 454
(C.A. 8, 1963). And whenever in the total picture there do appear
uncertainties or ambiguities "the backpay claimant should receive the
benefit of any doubt rather than Respondent, the wrongdoer responsible for
corrective measure do not emerge from the face of the
record no amount of added monologue here would help. A
respondent, or defendant, which so blatantly and continu-
ously disregards a Federal District Court order not to
discriminate in referrals on the basis of local union
membership, will surely continue to ignore any directive of
this Board unaccompanied by simultaneous power to
enforce.
As to the second item there is in evidence data from the
records of the District Council of Iron Workers of
Northern New Jersey Pension and Welfare Funds, and it
shows with exactness how much money members of Local
373 earned at work covered by the Iron Workers Council
- Employer Association Contract during 1975, and the
amount they earned during the first half of 1976. For the
year 1975 these members averaged over $17,000 in
earnings, and, in contrast, as shown by the same computer
printout from the pension fund, the 14 ironworkers who
suffered illegal discrimination at the hands of Local 373
earned only an average of about $6,400. The relative
picture holds substantially the same for 1976. Even the
Local 373 apprentices, and trainees, earned greatly in
excess of the prejudiced outsiders, all skilled craftsmen. I
agree with the General Counsel and the Charging Parties
that short of extraordinary remedial action these Respon-
dents will continue on in their illegal ways. Whatever
course this proceeding may take, inevitably in the end what
Respondents will have to pay to restore the status quo (a
phrase not literally applicable here) must be no more than
an approximation of the actual loss of earnings, a guess -
but a rational, educated, justified, and unavoidable guess.
And the procedure of estimating in place of precision is
supported by precedent. 5 The discriminatees are not to be
paid an amount to bring their earnings up to that of the
favored members, for had there been equitable allocation
of work instead of illegal preference, the members would
have earned less than they did. The actual earnings of all
- members and nonmembers - should be totaled, the
overall sum divided by the number of ironworkers who
worked - again members and nonmembers - and the
resultant average be deemed the amount each of the
discriminatees would have earned absent the illegal
conduct.
And precisely similar calculations can be made with
respect to those nonmembers - identified in the pleadings
or not as yet identified - who were illegally denied proper
referral out of the Local 45 hiring hall. The pension fund
financial data which produced the exhibits received in
evidence reflecting the earnings of members of Local 373
are equally available upon request to produce the average
earnings of all members of Local 45.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of Respondents set forth in
section III, above, occurring in connection with the
the existence of any uncertainty and against whom any uncertainty should
be resolved." United Aircraft Corporation, 204 NLRB 1068(1973); see also
J.H. Rutter-Rex Manufacturing Conpany, Inc., 194 NLRB 19 (1971), and
N. LR.B. v. Miami Coca-Cola Bottling Company, 360 F.2d 569 (C.A. 5, 1966).
518
IRONWORKERS, LOCAL 373
operations of the diversified employer members of the
Building Contractors Association of New Jersey, have a
close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
On the basis of the foregoing findings of fact, and upon
the entire record I make the following:
CONCLUSIONS OF LAW
I. By attempting to cause and by in fact causing the
employer members of the Building Contractors Associa-
tion of New Jersey to discriminate against 14 ironworkers
named in the complaint, and other as yet unidentified
ironworkers, in violation of Section 8(a)(3) of the Act,
Respondent Local 373, International Association of
Bridge, Structural and Ornamental Iron Workers has
violated and is violating Section 8(bX2) and (IXA) of the
Act.
2. By attempting to cause and by in fact causing the
employer members of the Building Contractors Associa-
tion of New Jersey to discriminate against the eight
individual ironworkers named in the complaint and other
as yet unidentified ironworkers, in violation of Section
8 (a)(3) of the Act, the Respondent Local 45, International
Association of Bridge, Structural and Ornamental Iron
Workers has violated and is violating Section 8(b)(2) and
(IXA) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
519