Ironworkers Local 45

National Labor Relations Board - Board Decisions

Sep 28, 1977

232 N.L.R.B. 520 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Association of Bridge, Structural &
Ornamental Ironworkers, Local 451 and Ralph
Bucci and Building Contractors Association of New
Jersey Case 22-CB-3223
September 28, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On December 30, 1976, Administrative Law Judge
John M. Dyer issued the attached Decision in this
proceeding. Thereafter, Respondent International
Association of Bridge, Structural & Ornamental
Ironworkers, Local 45, filed exceptions and a
supporting brief, and the General Counsel filed a
brief in support of the Administrative Law Judge's
Decision.
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 2 and has decided to affirm the rulings,
findings, recommendations, 3 and conclusions of the
Administrative Law Judge only to the extent consis-
tent herewith.
The record discloses that alleged discriminatee
Ralph Bucci, a nonmember of Respondent Local 45,
registered as an applicant for employment at Re-
spondent's hiring hall on three separate occasions
over a 10-month period. 4 As set forth in Local 45's
referral books, which the General Counsel intro-
duced into evidence at the hearing, Bucci first signed
the register on December 1, 1975, and was not called
for referral until February 9, 1976,5 when he was
Herein called Respondent Local 45.
2 Respondent Local 45 has requested oral argument. This request is
hereby denied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
I Respondent Local 45 has excepted to the recommendation of the
Administrative Law Judge that this proceeding be consolidated with
International Association of Bridge, Structural & Ornamental Ironworkers,
Local 373 (Building Contractors Association of New Jersey), 232 NLRB --
- also issued on this date. Inasmuch as we are relying solely on the record
evidence before us in making findings as to the alleged violations in the
instant case, and are relying on that former case only as background with
respect to the appropriateness of the remedy herein, we do not adopt the
Administrative Law Judge's recommendation that these cases be consolidat-
ed.
4 The Northern New Jersey District Council of Ironworkers is comprised
of various locals, including Respondent. Pursuant to a contractual
agreement between the District Council and the Building Contractors
Association of New Jersey, Respondent operates an exclusive hiring hall.
5 All dates are in 1976, unless otherwise indicated.
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 Respondent herein. The consent
decree provides that the referral system shall be operated on a "non-
232 NLRB No. 86
marked "absent"; he next registered on May 5, but
was not referred for work until August 16; and he
subsequently registered on August 17, and had not
been referred as of September 22, the date of the
hearing in this proceeding.
The Administrative Law Judge, apparently relying
on posthearing summaries of Respondent's referral
books submitted by the General Counsel, found that
Local 45 had violated Section 8(b)(1XA) and (2) of
the Act with respect to Bucci in a total of 56
instances during the above periods by referring its
members out of chronological order with no purport-
ed designation under the consent decree.6 A review
of the referral books themselves, however, reveals
that the General Counsel's summaries failed to
denote certain instances in which Respondent
designated members as falling within the enumerated
excepted categories under the consent decree in
making referrals. While we conclude that Respon-
dent has engaged in a pattern of unlawful conduct
against Bucci, we do so based on an examination of
the referral books themselves and without including
those instances in which it appears that nonchrono-
logical referrals of members were purported to be
justified under the consent decree. Rather, in finding
a specific minimum number of violations with
respect to Bucci, which are detailed in Appendix B,
attached hereto, we rely solely on those referrals in
which members with no purported designations were
given preference over Bucci. Thus, we find that
Respondent Local 45 clearly violated Section
8(b)(1)(A) and (2) of the Act at least 18 times during
the period from December 1, 1975, to September 22,
1976, by affording preferential treatment to its own
members over Bucci in making referrals.7
The Administrative Law Judge also determined
that Respondent's designations of its own members
as falling within the excepted categories of "request-
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; (6) employer requisi-
tions communicated during other than normal referral hours or on
Saturdays, Sundays, or Holidays. It appears that Respondent, when making
referrals which purportedly fell within these classifications, generally
denoted such referrals by placing special designations in the "Remarks"
column of the referral books.
I Specifically, a review of the referral books themselves shows that
Respondent clearly violated the Act 14 times by refemng members out of
sequence with no purported designation under the consent decree between
the time that Bucci signed the register on December 1, 1975, and his
subsequent referral on February 9; committed 3 violations during the
second period from May 5 to August 16; and I violation for the period
August 17 through the date of the instant hearing. (See Appendix B.)
520
IRONWORKERS, LOCAL 45
ed," "late call," "call back," or "steward" in making
referrals were deceitful in at least half the total
instances that Local 45 made out-of-turn referrals
based on such designations. Apparently, again
relying on the General Counsel's summaries, the
Administrative Law Judge found that between
December 1, 1975, and February 9, 1976, Respon-
dent reported 17 out of 34 members who were
referred out of turn in preference to Bucci as being
designated under excepted categories; so designated
96 of 124 members between May 5 and August 16;
and 56 out of 67 members between August 17 and
September 22, the date of the hearing.8 The Adminis-
trative Law Judge's finding of deceitful referral
designations also relied specifically on the findings
by Administrative Law Judge Ricci in Ironworkers
373, supra, with respect to referral books for an
earlier period, which books were not introduced into
evidence in the instant case. Furthermore, that prior
case was still pending before the Board on exceptions
as of the date of the Administrative Law Judge's
Decision herein. 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 designations as "requested," "call back," or
"steward" were deceitful, and while we specifically
do not adopt his reliance on evidence not before him
in this proceeding, it is clear from the referral books
themselves, in view of Respondent's continuing
pattern of designating its own members as falling
within excepted categories under the consent decree
in numbers grossly disproportionate to those of
nonmembers, that a substantial number of such
designations of its members were false. We therefore
find that Respondent has engaged in unlawful
discrimination not only by referring its members to
work in preference to Bucci, but by its consistent
a While there are minor discrepancies between the figures set out by the
Administrative Law Judge and those revealed by our examination of the
referral books themselves, such discrepancies are too insubstantial to affect
our conclusion herein. In any event, we note that the correct figures for
these periods would show, in fact, that Respondent designated an even
higher proportion of its members as falling within excepted categories if the
purported designations of apprentices, trainees, minorities, and foremen set
forth in the referral books were to be considered as designations reported
under the consent decree.
9 Respondent has set forth its use of "requested" referral designations
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 Respondent has
already been discussed. In addition, we note specifically that Respondent
has failed to substantiate the validity of "requested" designations by
producing (I) the separate "Contractors Requisition Register" required by
par. 23 of the consent decree or (2) written confirmation of contractors'
requests required by par. 27 (c) of the consent decree. Respondent must at
least produce such documents, or explain its failure to do so, in order to
meet the burden of proving its defense to facially discriminatory referrals.
Accordingly, the class of "similarly situated" discrininatees entitled to relief
by this Decision and Order shall include any nonmember applicant for
referral identified by the General Counsel in subsequent compliance
pattern of discrimination against all similarly situat-
ed nonmember applicants.
THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(bX 1)(A) and (2) of the Act, we
shall order that it cease and desist therefrom and take
certain affirmative action designed to effectuate the
purposes of the Act.
In view of our finding in Ironworkers Local 373,
supra, that Respondent Local 45 previously has
engaged in widespread and pervasive violations of
Section 8(b)(1)(A) and (2) of the Act, we conclude
that the unfair labor practices in this proceeding
constitute a continuation of Respondent's earlier
unlawful conduct. Therefore, in order to effectuate
the purposes of the Act, we shall direct Respondent
to take action similar to that which we found
appropriate in that prior case. Thus, we shall order
Respondent to make whole Ralph Bucci and all
other nonmember applicants who were similarly
situated 9 for any loss of earnings they have suffered
by reason of Respondent's discrimination against
them.10 Such backpay will be applied under a
formula whereby the overall earnings of all appli-
cants, members and nonmembers, seeking employ-
ment through its referral system would be divided by
the total number of ironworkers who worked out of
the hiring hall, taking into account the net earnings
of the individual discriminatees during the relevant
period and providing for the inclusion of interest as
provided in Florida Steel Corporation, 231 NLRB 651
(1977). 1
We shall additionally require that Respondent
keep and retain for a period of 2 years permanent
written records of their hiring hall operations and
make those available to the Regional Director upon
proceedings as an individual in preference to whom a member applicant
designated "requested" has been nonchronologically referred, with the
provision that Respondent may attempt affirmatively to defend any
"requested" referral designation by production and verification of the
aforementioned documents or other evidence of sufficient probity.
'o The complaint herein not only alleges that Respondent has violated
the Act with respect to the referral of Ralph Bucci, but it also alleges more
broadly that Respondent has unlawfully discriminated against "other of its
applicants for employment." In view of our finding herein that Respondent
has engaged in a pattern of widespread discrimination against nonmember
applicants seeking employment through its hiring hall, and in light of our
previous findings in Ironworker 373, supra, we find it appropriate to provide
restitutional relief to Bucci, as well as to other as yet unidentified
discriminatees, for any loss of earnings they may have suffered by reason of
Respondent's dlscrimination against them. See Painters, Decorators, and
Paperhangers of America, Local No. 985 (W. F. Schualia d Co., Inc), 194
NLRB 323 (1971); Harold Goldsmith and Ada J. Goldrmiith, d/b/a Superior
Maintenance Company, 133 NLRB 746(1961).
II In accordance with our decision in Florida Steel Corporation, 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.
521
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
request. We also shall order Respondent to submit to
the Regional Director four quarterly reports concern-
ing the employment of Ralph Bucci and other
nonmember applicants subsequently found to have
been similarly situated. Further, we shall require
Respondent to place its referral registers, for a period
of 2 years, on a table or ledge in its hiring hall for
easy access and inspection by the applicants upon
the completion of each day's entries in such registers.
Finally, we shall direct that Respondent post an
appropriate notice.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
International Association of Bridge, Structural &
Ornamental Ironworkers, Local 45, Jersey City, New
Jersey, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause the separate
employer-members of the Building Contractors
Association of New Jersey, or any other employer, to
discriminate against Ralph Bucci, or any other
employees, in violation of Section 8(a)(3) of the 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 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 on 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 Ralph
Bucci and those 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 the table or ledge in the hiring hall for easy
access and inspection by the applicants as a matter of
right, upon the completion of each day's entries in
such registers.
(d) Make whole Ralph Bucci and all other
nonmember applicants who were similarly situated
during the relevant period for any loss of earnings
they may have suffered by reason of the discrimina-
tion practiced against them, in the manner set forth
in the section of this Decision entitled "The Reme-
dy."
(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."12 Copies of said notice, on forms provided by
the Regional Director for Region 22, after being duly
signed by the Local's representatives, 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) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order,
what steps respondent has taken to comply herewith.
12 In the event that this Order is enforced by a Judgement 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
Judgement of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause or attempt to cause any of
the employer-members of the Building Contrac-
tors Association of New Jersey, or any other
employer, to discriminate against Ralph Bucci, or
any other employee, 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 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
522
IRONWORKERS, LOCAL 45
disclose fully the basis on 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 Ralph Bucci 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 the comple-
tion of each day's entries in such registers.
WE WILL make whole Ralph Bucci and all
other nonmember applicants who were similarly
situated during the relevant period 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
APPENDIX B
Respondent Local 45, at the minimum, has violated
Section 8(b)(l)(A) and (2) of the Act with respect to
Ralph Bucci by referring the following members out
of chronological order with no purported designa-
tions under the consent decree.
Discrim- Member
Inatee Referred
R. Bucci
P. Callahan
J. Creegan
F. Oterson
H. Fernau
D.V. MacGregor
J. McConville
D. Carroll
W. Aitkens
R. Goldey
M. Callaghan,Jr
G. Hendricks
R. Coldev, Jr.
J. Crader
E. Goldey
Date Date 1/
Sicned Referred
12/1/75 2/9/76
(Absent)
12/4/75 1/28/76
12/4/75 2/3/76
12/8/75 1/2/76
12/9/75 1/9/76
12/9/75 12/16/75
12/11/75 1/6/76
12/11/75 12/18/75
12/12/75 12/17/75
12/15/75 12/16/75
12/15/75 1/6/76
12/18/75 1/2/76
1/13/76 1/28/76
1/14/76 1/23/76
1/14/76 1/28/76
R. Eucci
R. Bucci
5/5/76
J. McNeil 6/4/76
J. Brooks 6/4/76
L. McClanahan 7/12/76
8/17/76
R. Deecken 8/25/76
8/16/76
6/7/76
6/21/76
7/12/76
5LANK 2/
8/28/ 76
18 Violations
Total
i Indicates that Bucci was called for referral, but was not present in the
hiring hall.
I Indicates that Bucci had not been called for referral as of the date of
the hearing.
DECISION
STATEMEINT OF THE CASE
JOHN M. DYER, Administrative Law Judge: Ralph Bucci
filed the charge in this case on May 4, 1976,1 alleging that
the International Association of Bridge, Structural &
Ornamental Ironworkers, Local 45, herein referred to as
the Union, Local 45 or Respondent, violated Section
8(bXIXA) and (2) of the National Labor Relations Act, as
amended, by refusing to refer him for employment in
derogation of his Section 7 rights. The Regional Director
issued a complaint on June 30 which alleges that Respon-
dent and Building Contractors Association of New Jersey,
herein called BCA, had a collective-bargaining agreement
which incorporates an exclusive job referral system,
whereby the Union refers persons to BCA's employer-
members for employment. Under its terms, referrals are to
be made without regard to membership in the Union. The
complaint alleges that Respondent failed to follow the
referral system with Bucci because of Bucci's nonmember-
ship in Respondent and that Respondent thereby violated
Section 8(bX I XA) and (2) of the Act.
Respondent's answer, as amended at the hearing,
admitted the jurisdictional and commerce allegations, its
status as a union and its contract with BCA including the
exclusive referral system and generally acknowledged that
Bucci had applied for positions at various times on and
after December 1, 1975, but stated that under various
consent decrees filed with a United States District Court,
there were certain exceptions to the strict chronological
order of referral of prospective employees and that it had
been following those exceptions in referring people out of
chronological order. It denied that it had violated the Act
in any way.
The hearing in this case was held on September 22, 1976,
and the parties were afforded full opportunity to appear, to
examine and cross-examine witnesses, and to argue orally.
General Counsel has filed a brief and Respondent filed a
letter brief.
Essentially the case consisted of a small amount of
testimony by Bucci and introduction of Respondent's
referral records for the period of December I through the
date of the hearing. On the basis of those records and the
testimony I have concluded that Respondent violated
Section 8(bXIXA) and (2) of the Act. Due to the specific
I Unless otherwise indicated the dates referred to herein occurred from
December 1975 through 1976.
523
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
circumstances in which this case came about and because
of a prior case involving this and other Respondents, the
findings and conclusions made therein, and the status of
that case, I am recommending that the Board consolidate
this proceeding with the prior proceeding and provide a
broad remedy for the violations found there and here.
On the entire record in this case, I make the following:
FINDINGS OF FACT
I. COMMERCE FINDINGS AND UNION STATUS
Building Contractors Association of New Jersey is a New
Jersey corporation which is an association of employers
engaged in construction in New Jersey. The employer-
members have delegated to BCA authority to conduct
collective-bargaining negotiations on their behalf, which
BCA has done for a number of years with various unions
including Respondent. During the past year members of
BCA received goods and materials directly from points
outside the State of New Jersey at New Jersey locatior
valued in excess of $50,000.
Respondent admits and I find that BCA is an employer
engaged in commerce within the meaning of the Act.
Respondent admits and I find that it is a union within
the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background and Facts
Pursuant to its contracts with BCA, Respondent has
maintained and operated an exclusive job-referral system
for ironworkers employed by employer-members of BCA
in the area where Respondent operates.
As a part of its defense, Respondent relies on a consent
decree issued by the United States District Court for the
District of New Jersey in which Respondent, among others,
has agreed to abide by the decree which provides for
nondiscrimination on account of race, creed, color, or
national origin in referring employees for employment and
further provides that referrals shall not be denied because
of nonmembership in the Union. The decree incorporates
specific methods including a chronological hiring order but
providing for certain exceptions. The exceptions allow
referral out of chronological order where a company
specifically requests an individual, where the Union
appoints a person as a steward to a particular job and
where a person is to be made a foreman by an employer.
In a hearing held during May and June 1976, involving
this respondent and two other unions, Administrative Law
Judge Ricci made findings and conclusions and decided
that Local 45 had violated Section 8(b)(l)(A) and (2) of the
Act by causing employer-members of BCA to discriminate
against individuals named in the complaint in that case
and against "other as yet unidentified iron workers." In
Administrative Law Judge Ricci's recommended Order
which included his extensive broad remedy for Respondent
he provided that Respondent would: "Make whole each of
the above-named eight individual employees, or any other
applicant who has suffered illegal discrimination at the
hands of Local 45, for any loss of pay they may have
suffered by reason of the discrimination practiced against
them, in the manner set forth in the section of this Decision
entitled 'The Remedy.' "
Administrative Law Judge Ricci's remedy prescribed
backpay for both the named discriminatees of Local 45
and for all unidentified or unnamed discriminatees who
suffered similar violations of the Act at the hands of
Respondent. Therefore if Ralph Bucci, the Charging Party
herein, suffered discrimination at the hands of Respondent
in the manner described by Administrative Law Judge
Ricci during the period covered by that case, Bucci is a
discriminatee and provided with a backpay remedy under
said recommended Order.
Because of the violations which he found, Administrative
Law Judge Ricci further provided for monitors to be
designated and supervised by the Board but compensated
by the locals to oversee the day-to-day operations of the
hiring halls so that the locals would operate according to
law, since he had found that Respondents, which include
Respondent herein, had blatantly defied applicable law.
Administrative Law Judge Ricci's decision issued the
day after the hearing in the instant case and mention of this
prior proceeding was made in this hearing. On findings
which I shall make subsequently and upon reviewing that
Decision it appears to me that the complaint allegations
herein are covered by findings of violations of the Act by
Local 45 for the period covered by Administrative Law
Judge Ricci's Decision, since he found that unnamed or
unidentified persons who had signed up for referrals for
Local 45 had been discriminated against by Local 45. This
finding would apply to Ralph Bucci both by the evidence
before me and the findings of Administrative Law Judge
Ricci.
Based on the facts in the instant case, which corroborate
the findings of violations occurring during the period
covered by Administrative Law Judge Ricci's Decision and
which extend the violations beyond that period, it appears
appropriate to recommend that the Board consolidate this
case with the former case so that the Board can have a
more complete picture of the continuing nature of the
violations insofar as Local 45 is concerned.
I am persuaded of the widespread nature of the
violations and of the necessity for the remedies which
Administrative Law Judge Ricci has recommended to the
Board. I will adopt his remedy recommendations and
further recommend them to the Board for application in
this case which should be consolidated with his.
Ralph Bucci's testimony is undenied that he applied for
membership in Local 45 and was turned down by the local
and on appeal to the International on several occasions.
On one occasion when he applied the business agent of
Local 45, Edward Konear, threw his card back at him and
said, "He would not let in a Guinea bastard. He would
rather let in a nigger."
Thus the question of Bucci's being referred by Respon-
dent or accepted as a member appears to involve
considerations other than payment of possible proper fees
and appears to be in violation of the consent decree issued
by the court.
In any event the referral records in the instant case show
that Ralph Bucci signed the referral book on December 1,
1975, and was not referred out until February 9, 1976,
524
IRONWORKERS, LOCAL 45
when, according to the book, he was marked absent. In the
interim between December I and February 9, there were
either 34 or 35 referrals of Local 45 members who had
signed the book after Bucci. Of this number 11 were
designated as being requested by a company, 2 were shown
sent out as stewards, 5 were listed as callbacks by the
Company, I person with no designation was listed as being
absent, and 16 Local 45 members were referred ahead of
Bucci with no designation as to why they were sent out of
turn.
Bucci signed up again on May 5, but was not referred for
work until August 16 when he received a I-day job. This
latter date is after the dates of hearing in Administrative
Law Judge Ricci's case. In the interim a substantial
number of Local 45 members signed and were sent out
ahead of Ralph Bucci.
General Counsel in an appendix and in his brief states
that 124 Local 45 members with similar ability were
referred out of turn with 28 of them having no designation
as to why they were sent out ahead of Bucci. According to
my calculations, 62 Local 45 members are shown as
requested by employers, plus 6 trainees who presumably
would have been sent out as apprentices under the consent
order, 23 persons plus I possible additional were sent out
as stewards, 20 were listed as callbacks, 2 persons were
listed as being absent with no other designation, and 29
persons plus 2 possible others were referred ahead of Bucci
and no designations or reasons were given. It is possible
that two or three of those may have had qualifications
superior to Bucci but that is doubtful.
Bucci next registered in the book on August 17, and as of
the date of the hearing, September 22, he had not received
any referrals. According to General Counsel, Local 45 had
referred 67 Local 45 members who had signed the book
subsequent to Bucci with only 1 of those persons not being
designated as either a steward, a request, or a callback.
According to my calculations 34 Local 45 members were
requested, 10 were listed as stewards with I possibly being
listed as a steward, 14 were listed as callbacks, and 9
persons were listed as not being designated and 2 being
absent. It is possible that of the nine designations several of
them may have had qualifications superior to Bucci but
that again is questionable.
Insofar as a primafacie case goes, there is no question but
what the referral of Local 45 members, who were not
designated as either a steward, a callback, or a request, and
were referred out of turn prior to Bucci, violated the Act
since they were referred out of chronological turn with no
reason given. Thus, Respondent violated the Act, insofar as
Bucci is concerned, at least 17 times between December I,
1975, and February 9, 1976, at least 28 times between May
5 and August 16 and 9 to 11 times between August 17 and
September 22, 1976.
In his brief General Counsel urges and I agree that, on
the basis of the increased designations of Local 45
members as being requested or marked "steward" or
"callback" in the referral book, the law was violated on a
number of additional times in the same manner as
Administrative Law Judge Ricci found on the much
greater records before him. I do not have that volume of
records before me but there seems to be quite a change in
the number of designations when it is considered that in
the first period only half of the Local 45 members who
were referred were designated as either stewards, callbacks,
or requests, while in the latter stages the number of
nondesignees dropped to about one-fifth of the total
number of out of order referrals.
General Counsel's brief cites other statistics from the
records showing that the number of non-Respondent
members referred out as stewards, requests, or callbacks is
so minute as to make the disproportionate number of Local
45 member requests, callbacks, and stewards appear to be
an inflated, fallacious figure.
B. Conclusions and Findings
The figures in the instant case appear to bear out
General Counsel's contention that not only the nondesig-
nated previous referrals of Local 45 members violated the
Act, but that a substantial number of those subsequently
designated in the book as requests, callbacks, and stewards
were intentionally and falsely so designated and that such
also violated the Act. General Counsel urges and I find
that at least half of that number in the latter two periods
are improper designations and falsely made to give an
erroneous picture of Respondent's referrals.
Administrative Law Judge Ricci arrived at such a
conclusion on the basis of the greater volume of records
before him and of the steep climb of designations made by
Respondents in his case. The swift rise of designations from
17 out of 34 to 96 out of 124, and 56 out of 67 bears this
out.
As far as the instant case is concerned, I conclude and
find that Respondent, during the first period of December
1975, to February 9, 1976, violated Section 8(bXIXA) and
(2) on 17 occasions insofar as Ralph Bucci is concerned. I
further find and conclude that in the second period, May 5
to August 16, 1976, that Respondent violated Section
8(bXIXA) and (2) of the Act on both the 28 occasions
where there were no designations and at least in half the
other occasions where there were designations of Local 45
members as stewards, requests, or callbacks. I further
conclude and find that during the third period of August 17
to September 22, 1976, Respondent violated Section
8(b)(IXA) and (2) of the Act as far as Ralph Bucci was
concerned, on II occasions where there were no designa-
tions of Local 45 members referred out of order prior to
Bucci being referred, and in at least half of the other 56
occasions where Respondent designated Local 45 members
who were referred ahead of Bucci as being hired as
stewards, requests, or callbacks.
Since the instant case involves only one named individu-
al who in effect has already been found as an unidentified
8(aX3) - 8(bX2) in Administrative Law Judge Ricci's case,
I recommend to the Board that this case be consolidated
with Administrative Law Judge Ricci's case and that the
background and findings in that case be considered with
this case for the ultimate remedies which are necessary to
effectuate the policies of the Act. I will recommend in this
case that the remedies which Administrative Law Judge
Ricci found applicable to Local 45 be applied herein.
525
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, as set forth in section II,
above, occurring in connection with the operations of the
employers and of BCA as set forth and described in section
1, above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
IV. THE REMEDY
Having found that Respondent violated Section
8(b)(1)(A) and (2) of the Act as set forth above, it is
recommended that it cease and desist from such conduct
and take affirmative action designed to effectuate the
policies of the Act. Specifically, I recommend that this case
be consolidated with [232 NLRB No. 85], and that the
remedies therein found appropriate for Local 45 be
extended to the instant case and enlarged by the instant
case. If not consolidated by the Board, I recommend that
the remedies for Local 45 in [232 NLRB No. 851 be applied
in this case.
Upon the foregoing findings of fact and the record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent Local 45 is a labor organization within
the meaning of Section 2(5) of the Act.
2. BCA is an employer within the meaning of Section
2(6) and (7) of the Act.
3. By attempting to cause and by causing employer-
members of BCA to discriminate against Ralph Bucci and
other employees or applicants for employment in violation
of Section 8(aX3) of the Act, Respondent violated Section
8(aXI)(A) and (2) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
526