Ironworkers, Local 45

National Labor Relations Board - Board Decisions

Mar 20, 1978

235 N.L.R.B. 211 (N.L.R.B. 1978)

IRONWORKERS, LOCAL 45
International Association of Bridge, Structural &
Ornamental Ironworkers, Local 45 and William
Handley and Leonard Gibson and William
McGuire and Thomas Cullinane and Frank Frega
and Richard Gilbert and Onofiro Samarelli and
Joseph Bucci and Louis DiMascio and Johnny
Douglas and Building Contractors Association of
New Jersey, Party to the Contract. Cases 22-CB-
3343, 22-CB-3344, 22-CB-3347, 22-CB-3348,
22-CB-3351, 22-CB-3357, 22-CB-3368, 22-CB-
3392, and 22-CB-3401
March 20, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On July 29, 1977, Administrative Law Judge
Robert E. Mullin issued the attached Decision in this
proceeding. Thereafter, the General Counsel and
Respondent filed exceptions and supporting briefs.
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, find-
ings,' and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
1. The Administrative Law Judge concluded that
Respondent Local 45 has engaged in numerous
violations of Section 8(b)(l)(A) and (2) of the Act by
discriminating against certain named nonmember
applicants in the operation of its exclusive hiring
hall. 2 He found that Respondent had committed
numerous unfair labor practice violations by refer-
ring its members to work in preference to the
nonmember discriminatees named in the complaint
who had registered prior to the members. In each
I Respondent has excepted to Administrative Law Judge Mullin's
references to the prior Administrative Law Judge's decisions involving
Respondent in International Association of Bridge, Structural & Ornamental
Ironworkers, Local 373 (Building Contractors Association of New Jersey), 232
NLRB 504 (1977), and International Association of Bridge, Structural d
Ornamental Ironworkers, Local 45 (Building Contractors Association of New
Jersey), 232 NLRB 520 (1977), which, as of the date of Administrative Law
Judge Mullin's Decision herein, were pending before the Board. It is clear,
however, that Administrative Law Judge Mullin did not rely on those prior
cases in making his findings of violations herein. We therefore find no merit
to this exception.
2 The Northern New Jersey District Council of Ironworkers is comprised
of various locals, including Respondent. Pursuant to a contractual agree-
ment between the District Council and Building Contractors Association of
New Jersey, Respondent operates an exclusive hiring hall.
3 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
235 NLRB No. 14
specific instance of a violation, the referred member's
name bore no special designation in the righthand
column of the referral books entitled "Remarks"
which might have justified preferential treatment.3
The Administrative Law Judge, as part of his
Decision, introduced into evidence as his own exhib-
its 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 Local 45. It is
clear that in finding specific violations herein the
Administrative Law Judge relied substantially on the
summaries provided by the General Counsel rather
than on the actual referral records which were
introduced into evidence. Examination of those
referral books reveals that the General Counsel's
summaries failed to denote certain instances in which
Respondent designated members as falling within the
excepted categories under the consent decree in
making referrals.
While we conclude that Respondent in fact has
engaged in a continuing and widespread pattern of
unlawful conduct against nonmember applicants
who registered at its hiring hall, we do so based upon
our examination of the referral books themselves,
placing no reliance on the General Counsel's sum-
maries. In finding the specific violations which are
detailed in Appendix B attached hereto, we have
excluded from consideration those instances in which
it appears from the referral books that Respondent
seeks to justify nonchronological referrals of mem-
bers by according them preferential referral designa-
tions recognized by the consent decree. We have
relied solely on those referrals wherein members with
no purported designations were given preference
over the nonmember applicants found by the Admin-
istrative Law Judge to have been discriminated
against. Accordingly, we find that Respondent Local
Ironworkers and its five locals, including Respondent herein. The consent
decree provides that the referral system shall be operated by Respondent on
a "nondiscriminatory basis without regard to membership or non-member-
ship in the Union, and there shall be no discrimination against any person
by reason of race or color." The consent decree, however, permnits the Union
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 Respondent, when making
referrals which purportedly fell within these classifications, generally
denoted such referrals by placing special designations in the "Remarks"
column of its referral books.
211
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
45 clearly violated Section 8(b)(l)(A) and (2) of the
Act an indisputable number of 66 times 4 during the
period from March 28, 1976, to February 22, 1977,5
by according preferential treatment to its own
members over nonmember applicants.
In addition to his findings of specific violations, the
Administrative Law Judge concluded that Respon-
dent's designation of its own members as falling
within the excepted categories of "requested," "late
call," "call back," 6 or "steward" was deceitful in at
least half of the total instances in which it made out-
of-turn referrals based on such designations. The
Administrative Law Judge supported his inference of
deceit with detailed findings, apparently also drawn
from the General Counsel's summaries, conclusively
establishing a pattern of grossly disparate designa-
tion treatment for members vis-a-vis nonmembers in
Respondent's referral registers. In this regard, he
found, inter alia, that Respondent made approxi-
mately 495 referrals of its own members during the
period March 28, 1976, to February 22, 1977, and
that, of this number, approximately 375 members, or
about 75 percent, were referred out of chronological
order under excepted categories.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
actual referral books that Respondent continuously
and systematically designated its 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 the striking statistical contrast between
I Specifically, a review of the referral books reveals that Respondent
clearly violated the Act during the above period at least the following
number of times against each of the named nonmember discriminatees:
Mario Colello (2); Lewis DiMascio (5); John Douglas (1) Frank Frega (6);
Richard Gilbert (5); William Handley (8); George Hartung (4); Robert
Hartung (3); William McGuire (5); Onofiro Samarelli (11); Richard
Sheehan (I 1); and George White (5). See Appendix B.
I The General Counsel has excepted to the failure of the Administrative
Law Judge to find that Respondent engaged in unlawful hiring hall practices
as to discriminatee Richard Gilbert on and after September 21, 1976. While
concluding that Local 45 had discriminated against Gilbert in violation of
Sec. 8(bXI)(A) and (2) prior to that date, the Administrative Law Judge
found that no violations occurred thereafter because as of that date Gilbert
was registered both with Respondent and another local in contravention of
par. 26 of the consent decree which prohibits multiple registrations. We find
merit in the General Counsel's exceptioi.. It is clear that it would have been
futile for Gilbert to rely solely on Respondent for employment opportunities
in view of its consistent pattern of discrimination against him and other
member and nonmember referrals purportedly made
pursuant to excepted category designations is that a
substantial number of such designations are false.
We therefore find that Respondent has engaged in
unlawful discrimination not only by referring its
members to work in preference to the nonmember
named discriminatees, but by its consistent pattern of
discrimination against all similarly situated nonmem-
ber applicants.
2. We agree with the Administrative Law Judge
that Respondent also violated Section 8(b)(1)(A) and
(2) of the Act with respect to its members Thomas
Cullinane and Leonard Gibson in giving preference
to other of its members by making referrals which it
did not seek to justify under the excepted categories
of the consent decree and for which it offered no
other explanation. Based on an examination of the
referral books themselves, we find that Respondent
specifically committed unfair labor practice viola-
tions in a total of five instances with respect to
Cullinane and eight instances with respect to Gibson,
as set forth in Appendix C attached hereto. In
addition to these specific violations, we further find
that, as in the case of nonmember discriminatees, a
substantial number of Respondent's nonchronologi-
cal referrals, purportedly pursuant to the consent
decree, of other of its members in preference to
Cullinane and Gibson were also false and, therefore,
were unlawful.
Finally, for the reasons fully set forth by the
Administrative Law Judge, we find Respondent
additionally violated Section 8(b)(1)(A) and (2) by
refusing to permit Joseph Bucci the opportunity to
register for employment through its hiring hall.
THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(b)(1)(A) and (2) of the Act, we
shall order that it cease and desist therefrom and take
nonmembers. In effect, Gilbert was attempting to mitigate the loss of
earnings he suffered during the backpay period by reason of Respondent's
discrimination against him. Furthermore, the record contains no evidence
that Respondent had knowledge prior to the hearing that Gilbert was
seeking referral at another hiring hall. Respondent therefore has not
affirmatively demonstrated that such a consideration was a basis for its
failure to refer him. For these reasons, we conclude that Gilbert's effort to
locate employment opportunities elsewhere does not preclude our finding
that Respondent committed unfair labor practices as to this individual after
September 21, 1976.
s It appears that Respondent regards the designation "call back" as an
excepted category under the consent decree. As noted by the Administrative
Law Judge, however, there is no such excepted category provided for in the
consent decree.
I 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.
212
IRONWORKERS, LOCAL 45
certain affirmative action designed to effectuate the
purposes of the Act.
In view of our findings in Ironworkers Local 373,
supra, and Ironworkers Local 45, supra, that Respon-
dent 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 those prior cases.
Thus, we shall order Respondent to make whole the
named nonmember discriminatees, and all other
nonmember applicants who were similarly situated, s
for any loss of earnings they have suffered by reason
of Respondent's discrimination against them.9 Such
backpay will be applied under a formula whereby the
overall earnings of all applicants, seeking employ-
ment through its referral system, whether members
or nonmembers, 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 provid-
ed in Florida Steel Corporation, 231 NLRB 651
(1977).10 Furthermore, in the event that the named
nonmember discriminatees in the instant case are
subsequently determined at the compliance stage of
this proceeding to fall within the class of other, as yet
unidentified, nonmember discriminatees found in the
prior cases, they shall be entitled to backpay from the
10(b) period applicable therein. If, however, they are
not found to be within the class of nonmember
applicants who were similarly situated, their backpay
shall commence with the 10(b) period applicable in
the instant proceeding. Inasmuch as we have found
that Respondent discriminated against Cullinane,
Gibson, and Joseph Bucci for reasons other than
their lack of membership in Local 45, they therefore
do not fall within the class of other, as yet unidenti-
fied, nonmember discriminatees, and, accordingly,
8 Although the Administrative Law Judge found the record contained no
evidence that a member of Local 45 was ever requested by an employer, it is
clear that the General Counsel introduced into evidence at the hearing
Respondent's "Contractors Requisition Register." Local 45 does not rely,
however, on this register as proof of the validity of "requested" designations
in its referral registers purportedly made pursuant to the operative judicial
consent decree. Furthermore, as noted by the Administrative Law Judge,
Respondent failed to introduce and authenticate written confirmation of
contractors' requests as 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"
discriminatees 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 Respondent may attempt affirmatively to
their backpay shall commence with the 10(b) period
applicable herein.
We shall additionally require that Respondent
keep and retain for a period of 2 years permanent
written records of its hiring hall operations and make
those available to the Regional Director upon re-
quest. We shall also order Respondent to submit to
the Regional Director four quarterly reports concern-
ing the employment of all the named discriminatees
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:
I. Cease and desist from:
(a) Causing or attempting to cause the separate
employer-members of the Building Contractors As-
sociation of New Jersey, or any other employer, to
discriminate against any of the following employees:
Joseph Bucci
Mario Colello
Thomas Cullinane
Lewis DiMascio
John Douglas
Frank Frega
Leonard Gibson
George
Richard Gilbert
William Handley
George Hartung
Robert Hartung
William McGuire
Onofiro Samarelli
Richard Sheehan
White
or any other employees, in violation of Section
8(a)(3) of the National Labor Relations Act because
defend any "requested" referral designation by production and verification
of the aforementioned documents or other evidence of sufficient probity.
D The complaint herein not only alleges that Respondent has violated the
Act with respect to the referral of the named discriminatees, 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 Ironworkers Local 373, supra, and
Ironworkers Local 45, supra, we find it appropriate to provide restitutional
relief to the named discriminatees as well as to other, as yet unidentified,
discriminatees for any loss of earnings they may have suffered by reason of
Respondent's discrimination against them. 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 See, generally, Isis Plumbing d Hearing Co., 138 NLRB 716 (1962).
213
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of their lack of membership in Local 45 or for other
arbitrary or invidious reasons.
(b) In any other manner restraining or coercing
employees or applicants for employment in the
exercise of their 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 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
period.
(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 the 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 they may
have suffered by reason of the discrimination prac-
ticed 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
A." I Copies of said notice, on forms provided by
the Regional Director for Region 22, after being duly
signed by Respondent'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 Respon-
dent 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 here-
with.
11 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
Judgment 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 any of the
following employees:
Joseph Bucci
Mario Colello
Thomas Cullinane
Lewis DiMascio
John Douglas
Frank Frega
Leonard Gibson
George
Richard Gilbert
William Handley
George Hartung
Robert Hartung
William McGuire
Onofiro Samarelli
Richard Sheehan
White
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
or for other arbitrary or invidious reasons.
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
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 the above-named employees
and those nonmember applicants subsequently
found to have been similarly situated. Such
214
IRONWORKERS, LOCAL 45
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 appli-
cants, as a matter of right, upon the 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
APPENDIX B
Respondent Local 45, at the minimum has violated Section 8(b)(1)(A) and (2) of
the Act with respect to the named nonmember discriminatees set forth below by
referring the following members out of chronological order/ with no purported
designations under the consent decree.
1. MARIO COLELLO
Named Discriminatee
M. Colello
Name of Member Referred
J. Kelly
R. Drumm
2 violations total
Date Signed
6/7/76
7/14/76
8/10/76
Date Referred
9/17/76
8/24/76
8/17/76
2. LOUIS DIMASCIO
Named Discrimioatee
L. DiMascio
L. DiMascio
Name of Member Referred
J. Kelly
R. Drumm
W. McVicar
T. Hendricks
R. Reilly
5 Violations Total
Date Signed
6/24/76
7/14/76
8/10/76
9/30/76
10/12/76
11/29/76
1/6/77
Date Referred 2/
9/20/76 (Absent)
8/24/76
8/17/76
(Blank) 21
10/12/76
12/20/76
2/8/77
1/ Although there are instances set forth below in which the named discriminatee
and the member of Local 45 registered at the hiring hall on the same date, an
examination of the referral hooks discloses that in each instance the named
discriminates signed in prior to the member given preference.
Indicates instances in which the named £iscriminatee was called for referral
but was not present in the hiring hall. With respect to the referral of
Louis DiMascio in the instance denoted above, Local 45's referral books do
not reveal that DiMascio was marked "absent" in the "Date Referred" column
of the register on September 20, 1976. DiMascio, however, gave undisputed
testimony that although he reported to the hiring hall on that date he left
for a brief period and was not present at the specific time his name was
called for referral and that Respondent informed him later that day that he
was considered to be absent.
3/Indicates that the named discriminates had not been called for referral as
of the date of the hearing.
215
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. JOHN DOUGLAS
4. FRANK FREGA
Named Discriminatee
J. Douglas
Named Discriminatee
F. Frega
F. Frega
Name of Member Referred
T. Hendricks
1 Violation Total
Name of Member Referred
L. McClanahan
J. Kelly
M. Callaghan, Jr.
R. Drumm
T. Hendricks
R. Reilly
6 Violations Total
Date Siened Date Referred
9/27/76 (Blank)
11/29/76 12/20/76
Date SiRned
6/7/76
7/12/76
7/14/76
8/4/76
8/10/76
10/28/76
11/29/76
1/6/77
Date Referred
9/7/76
7/12/76
8/24/76
8/28/76
8/17/76
(Blank)
12/20/76
2/8/77
5. RICIIARD GILBERT
Named Discriminatee
R. Gilbert
R. Gilbert
R. Gilbert
Named DiScriminatee
W. Handley
W. Handley
6. WILLIAM HANDLEY
Name of Member Referred
L. McClanahan
M. Callaghan, Jr.
R. Drumm
R. Deecken
T. Hendricks
5 Violations Total
Name of Member Referred
J.
L.
E.
J.
E.
R.
Brooks
McClanahan
Dingier
Iacouzzi
Dingier
Drumm
M. lalvorsen
R. Reilly
8 Violations Total
Date Signed
6/14/76
7/12/76
8/4/76
8/4/76
8/10/76
8/25/76
10/15/76
11/29/76
Dat e SiRned
6/4/76
6/4/76
7/12/76
7/28/76
8/3/76
8/3/76
8/10/76
10/28/76
11/26/76
1/6/77
Date Referred
7/29/76
7/12/76
10/5/76 (Absent)
8/28/76
8/17/76
8/28/76
(Blank)
12/20/76
Date Referred
8/25/76
6/21/76
7/12/76
7/29/76
8/24/76
8/12/76
8/17/76
(Blank)
2/7/77
2/8/77
7. GEORGE HARTUNG
Named Discriminatee
C. Hartung
Name of Member Referred Date Signed
5/12/76
Date Referred 4/
9/7/76 (Absent)
referral of George Ilartung in the instance denoted above,
books do not reveal that Hartung was marked "absent" in
4/ With respect to the
Local 45' s referral
216
IRONWORKERS, LOCAL 45
7. COERCE HARTUNr, (cont.)
Named Discriminatee Name of Member Referred
J. Rrooks
J. Kelly
E. Dingler
R. Drumm
4 Violations Total
Date Signed
6/4/76
7/14/76
8/3/76
8/10/76
Date Referred
6/21/76
8/24/76
8/12/76
8/17/76
8. ROBERT HARTUNr,
Named Discriminatee
R. Hartung
R. Hartung
Name of Member Referred
L. McClanahan
T. Hendricks
R. Reilly
3 Violations Total
Date SiRned
r,/24/76
7/12/76
11/26/76
11/29/76
1/6/77
Date Referred
7/27/76
7/12/76
(Blank)
12/20/76
2/8/77
9. WILLIAMX McrUIRE
Named Discriminatee
W. McCuire
W. McC.uire
W. McCuire
Name of Member Referred
J. McNeil
J. Brooks
R. Deecken
T. Hendricks
R. Reilly
5 Violations Total
Date Signed
3/23/76
6/4/76
6/4/76
8/20/76
8/25/76
11/8/76
11/29/76
1/6/77
Date Referred
7/1/76
6/7/76
6/21/76
10/5/76
8/28/76
(Blank)
12/20/76
2/8/77
10. ONOFIRO (FRED) SAMARELLI
Namied Discriminatee
F. Samarelli
Name of Member Referred
L. McClanahan
J. Kelly
E. ninelpr
J. Iacouzzi
Date SiRned
6/24/76
7/12/76
7/14/76
7/28/76
8/3/76
Date Referred
9/1 7/76
7/12/76
8/24/76
7/29/76
8/24/76
/ the "Date Referred" colum'n of the register on September 7, 1976. Ilartung,
however, nave undisputed testimony that although he reported to the hiring
hall on that date he left for a brief period and was not present at the
specific time his name was called for referral and that Respondent informed
him later that dav that he was considered to be absent.
217
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Named Discriminatee
F. Samarelli
Name of Member Referred
E, Dingler
M. Callaghan
R. Drumm
R. Deecken
W. McVicar
M. Halvorsen
T. Hendricks
11 Violations Total
Date Signed
8/3/76
8/4/76
8/10/76
8/25/76
9/27/76
10/12/76
11/26/76
11/29/76
Date Referred
8/12/76
8/28/76
8/17/76
8/28/76
2/8/77
10/12/76
2/7/77
12/20/76
11. RICHARD SHEEHAN
Named Discriminatee
R. Sheehan
R. Sheehan
R. Sheehan
12. CEORCE WHITE
Named Discriminatee
,, White
C. White
,,. White
Name of Member Referred
L. McClanahan
E. Dingler
J. Iacouzzi
E. DingRler
M. Callaghan, Jr.
R. Drumm
R. Deecken
W. McVicar
M. Halvorsen
T. Hendricks
R. Reillv
11 Violations Total
Name of Member Referred
L. McClanahan
R. Drumm
R. Deecken
M. McVicar
R. Reilly
5 Violations Total
Date Signed
6/10/76
7/12/76
7/21/76
7/28/76
8/3/76
8/3/76
8/4/76
8/10/76
8/25/76
10/4/76
10/12/76
11/26/76
11/29/76
1/6/77
Date Signed
6/11/76
7/12/76
8/10/76
8/25/76
9/20/76
10/12/76
12/27/76
1/6/77
Date Referred
7/19/76
7/12/76
10/4/76 (Absent)
7/29/76
8/24/76
8/12/76
8/28/76
8/17/76
8/28/76
(Blank)
10/12/76
2/7/77
12/20/76
2/8/77
Date Referred
9/17/76
7/12/76
8/17/76
8/28/76
11/9/76
10/12/76
(Blank)
2/8/77
Total violations with respect to named nonmember discriminatees: 66
218
IRONWORKERS, LOCAL 45
APPENDIX C
Respondent Local 45, at the minimum, has violated Section 8(b)(1)(A) and (2) of
the Act with respect to its members Thomas Cullinane and Leonard Cibson by
referring the following members out of chronological orderl/ with no purported
designations under the consent decree.
1. THOMAS CULLINANE
Named Discriminatee
T. Cullinane
T. Cullinane
2. LEONARD GIBSON
Name of Member Referred
J. McNeil
J. Brooks
W. McVicar
M. Halvorsen
T. Hendricks
55Violations Total
Date SiRned
3123/76
6/4/76
6/4/76
9/28/76
10/12/76
11/26/76
11/29/76
Date Referred 2/
7/1/76 (Absent)
6/7/76
6/21/76
2/8/77(Blank)
10/12/76
2/7/77
12/20/76
Named 'Discriminatee
L. Gibson
Name of Member Referred
E.
J.
E.
M.
R.
R.
L. Gibson
Dingler
lacouzzi
Dingier
Callaghan, Jr.
Drumm
Deecken
M. Halvorsen
R. Reilly
8 Violations Total
Date Signed
7/22/76
7/28/76
8/3/76
8/3/76
8/4/76
8/10/76
8/25/76
10/25/76
11/26/76
1/6/77
Date Referred
10/4/76
7/29/76
8/24/76
8/12/76
8/28/76
8/17/76
8/28/76
(Blank) 2/
2/7/77
2/8/77
Total violations with respect to named member discriminatees: 13
j] Although there are instances set forth below in which the named discriminatee
and another member of Local 45 registered at the hiring hall on the same date,
an examination of the referral books discloses that in each instance the
named discriminates signed in prior to the other member given preference.
2/ Indicates instances in which the named discriminatee was called for referral
but was not present in the hiring hall.
2/ Indicates that the named discriminatee had not been called for referral as
of the date of the hearing.
219
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
ROBERT E. MULLIN, Administrative Law Judge: The
hearing in this matter was held on February 14, 15, and 16,
1977, in Newark, New Jersey, on a complaint issued by the
General Counsel of the National Labor Relations Board
against International Association of Bridge, Structural &
Ornamental Ironworkers, Local 45, herein called Local 45,
the Union, or the Respondent. The original complaint,
issued on November 26, 1976, and a first amended
complaint, issued cn January 12, 1977, arose out of nine
separate charges filed by the individuals named as Charg-
ing Parties in the above-captioned cases, and alleged that
Local 45 maintained an exclusive job-referral system but
discriminatorily failed to follow it with respect to numerous
named, and unnamed, individuals, thereby violating Sec-
tion 8(b)(1)(A) and (2) of the National Labor Relations
Act, as amended.1
The Respondent's answer admitted the jurisdictional and
commerce allegations, its status as a union, and its contract
with the Building Contractors Association of New Jersey
(herein called BCA), but it denied all allegations that it had
violated the Act.
At the hearing, the parties were afforded full opportunity
to appear, to examine and cross-examine witnesses, and to
argue orally. Oral argument was waived. On April 15, 1977,
both the General Counsel and the Respondent submitted
briefs. 2
Upon the entire record and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYERS
The Building Contractors Association of New Jersey, a
New Jersey corporation, is an association of employers
engaged in the construction business in the State of New
Jersey. For many years, the members of the BCA have
I This case was originally consolidated with several other cases involving
Local 373 of the Ironworkers. At the outset of the hearing, a motion to sever,
made by counsel for the latter union, was granted.
2 On March 9, 1977, pursuant to a stipulation of the parties entered into
at the hearing, the General Counsel submitted certain exhibits which had
been designated as G.C. Exhs. 9(a) and (b). These have been placed in the
delegated to it the authority to bargain collectively with the
Union on their behalf and to enter into a single contract
covering their respective employees. During the year
preceding issuance of the complaint, a representative
period, the members of the BCA received goods and
materials valued in excess of $50,000 directly from points
outside the State of New Jersey at locations within that
State. Upon the foregoing facts, the Respondent admits,
and I find, that the BCA is an employer engaged in
commerce within the meaning of the Act.
II1. THE LABOR ORGANIZATION INVOLVED
International Association of Bridge, Structural & Orna-
mental Ironworkers, Local 45, is a labor organization
within the meaning of the Act.
HI. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Introduction
Local 45 is no stranger to proceedings before the Board.
In a decision issued on September 23, 1976, involving the
Respondent and two other locals of the Ironworkers,
Administrative Law Judge Thomas A. Ricci found that
Local 45 had violated Section 8(b)(l)(A) and (2) of the Act
by causing employer-members of the BCA to discriminate
against the individuals named in the complaint as well as
against "other as yet unidentified ironworkers." Moreover,
in his recommended Order, Administrative Law Judge
Ricci prescribed backpay for both the named discrimina-
tees of Local 45 and for all unidentified, or unnamed,
discriminatees who suffered similar violations of the Act at
the hands of the Respondent. Administrative Law Judge
Ricci further recommended that, because of the wide-
spread violations by Local 45, a monitor be designated by
the Board to oversee the day-to-day operations of the
hiring hall of Local 45. International Association of Bridge,
Structural & Ornamental Iron workers, Local 373 (Building
Contractors Association of New Jersey), 232 NLRB 504
(1977) (hereinafter known as Ironworkers 1).
exhibit file along with a document submitted by Raymond G. Kruse, Esq.,
by letter dated March 8, 1977, described in said letter as an affirmation
regarding the out-of-local registration of Richard Gilbert, one of the
complainants. The letter, marked as Resp. Exh. 2, has also been placed in
the exhibit file.
220
IRONWORKERS, LOCAL 45
Later, in another decision involving Local 45, issued on
December 30, 1976, Administrative Law Judge John M.
Dyer found that Local 45 had violated Section 8(bXIXA)
and (2) of the Act by causing members of BCA to
discriminate against Ralph Bucci and other employees or
applicants for employment. Administrative Law Judge
Dyer recommended that Bucci be made whole for any
losses suffered as a result of the Respondent's discrimina-
tion. He further recommended that the provisions of the
broad remedial order proposed by Administrative Law
Judge Ricci in Ironworkers I be applied, and that, if there
were an appeal, Case 22-CB-3223 be consolidated with
Cases 22-CB-3024, et al., previously decided by Adminis-
trative Law Judge Ricci, for consideration by the Board.
International Association of Bridge, Structural & Ornamental
Ironworkers, Local 45 (Building Contractors Association of
New Jersey), 232 NLRB 504 (1977) (hereinafter known as
Ironworkers II).
Local 45, as a part of the Northern New Jersey District
Council of Ironworkers (the Council), has had contractual
relations with the BCA over a long period of time. The
current contract, 3 in effect at all times material herein,
provides that each local in the Council operates a hiring
hall. It also requires that ironworkers seeking jobs are to be
registered at the hall and referred to employing contractors
in rotation and on a nondiscriminatory basis as the
requests are received from employers. Both the agreement
and the Act require that members of the local not be given
preference over nonmembers. Local 117, United Brother-
hood of Carpenters & Joiners of America, AFL-CIO (Peter
Kiewit Sons' Co.), 189 NLRB 690, fn. 1 (1971). In the two
earlier cases involving Local 45, however, it was found that
the Respondent had a referral practice whereby Local 45
gave preference to its own members over nonmembers. It
was therefore found by the Administrative Law Judge in
each case that the Respondent's practice caused an
employer who had agreed to put people to work only when
coming out of Local 45's hiring hall to discriminate, in the
words of the statute, "against an employee in violation of
Section 8(a)(3)." For this reason, the Respondent's referral
system was found to violate Section 8(b)(2). Local 117,
ibid; and International Brotherhood of Boilermakers, Iron
Shipbuilders, Blacksmiths, Forgers and Helpers Local Lodge
No. 169, AFL-CIO (Riley Stoker Corporation), 209 NLRB
140 (1974).
In the two prior cases involving the Respondent, both
Administrative Law Judge Ricci and Administrative Law
Judge Dyer found that the collective-bargaining agreement
in effect between Local 45 and the BCA provided for an
exclusive hiring hall arrangement whereby all applicants
for employment within the jurisdiction of Local 45 had to
go through the Respondent's hiring hall. In the present
case, the Respondent now contends that it does not have
an exclusive hiring hall arrangement with the BCA. There
is no merit to this argument.
Article XV of the contract in question provides, in
relevant part, as follows:
3 The term of this current contract is from July 1, 1975, through June 30,
1977.
15.1 Every Employer bound hereby agrees that he will
recruit all employees covered hereby exclusively
through the several hiring halls operated by the Union
and/or its Locals. The said hiring halls shall be
operated by the Union and its Locals in a non-
discriminatory manner and on a non-discriminatory
basis in accordance with the said Decree in U.S. v.
Plumbers Local 24, et al, Civil Action No. 444-71,
etc ...
Notwithstanding the plain language of the collective-bar-
gaining agreement, the Respondent now contends that it
does not operate an exclusive hiring hall because it has a
practice whereby some employers may employ up to 50
percent of their own employees on a jobsite without going
through Local 45's hiring hall to obtain them. The facts,
however, do not support this contention. Thus, Raymond
Venner, business agent for the Respondent, testified that, if
a large employer, such as Bethlehem Steel, has 50 percent
of its own employees on a job, that employer must hire the
rest exclusively through Local 45's hiring hall. Further-
more, with respect to the jobs in progress at the time of the
hearing in this case, Venner gave additional testimony
which establishes the exclusive character of the hiring hall
in question. Thus, Venner testified that, as to the three jobs
on which Local 45 was providing the ironworkers at the
time of the hearing, on one Local 45 referred all 8 of the
ironworkers hired; on the second there were 3 company
men and 3 men referred from Local 45's hall; and on the
third there were 18 ironworkers, of which 12 had been
referred by Local 45. Finally, John Carroll, President of
Local 45, testified that, whereas an employer could hire all
the ironworkers on a jobsite without going through the hall,
this could be done only if the employerfirst secured the
approval of the business agentfor Local 45.
In view of the language of article XV of the collective-
bargaining agreement, and the testimony of both Venner
and Carroll, it is now found that Local 45 continues to
operate an exclusive hiring hall just as was found by the
Administrative Law Judges who heard the earlier cases
involving the same contract provision and the practices of
Local 45. It is well established that where an exclusive
hiring hall arrangement provides for the referral of appli-
cants on a first-in, first-out basis a union violates Section
8(b)(1X)(A) and (2) by giving preference to its own members
over the nonmembers who sign the referral register. Local
117, United Brotherhood of Carpenters & Joiners of America,
AFL-CIO (Peter Kiewit Sons' Co.), supra, International
Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths,
Forgers and Helpers Local Lodge No. 169, AFL-CIO (Riley
Stoker Corporation), supra.
In 1972, a consent decree was entered by the United
States District Court for the District of New Jersey in an
action brought by the United States against, inter alia, the
Northern New Jersey District Council of Ironworkers and
its five locals, including Local 45, to enforce Title VII of
the Civil Rights Act of 1964. U.S. v. Plumbers Local 24, et
al, Civil Action No. 444-71 (D.C.N.J.). This decree, a copy
of which was received in evidence, enjoined the defendants
221
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in that action, including Local 45, from discriminating
against registrants for job referrals on account of "race,
creed, color, or national origin," and specifically declared
that "no . . . applicant shall be . . . denied referral
because. . . he is not a union member."
Throughout the hearing the Respondent contended that,
in complying with the aforesaid consent decree, Local 45
cannot be held to have violated the Act. This argument,
initially made by the Respondent in Ironworkers 1, was
thoroughly analyzed and rejected by Administrative Law
Judge Ricci in his Decision in that case. In accord with his
conclusion there, it is now found that the Respondent here
cannot find shelter for any discrimination against non-
members by resort to the terms of the consent decree.
There is no inconsistency between the civil rights require-
ments of the decree and the requirements imposed upon
the Respondent Union by the provisions of the National
Labor Relations Act.
B. The Facts
When an ironworker is available for a job he must
personally sign the referral register maintained by Local
45,4 and enter therein such information as his name, race,
date of registration, union affiliation, if any, and the
classification of work which he represents that he is
qualified to perform. When an employer calls the hiring
hall to requisition ironworkers, the business agent who
answers the call is supposed to refer an applicant by his
respective work classification in chronological order of
registration. As the business agent refers an applicant, he
enters in the register, opposite the applicant's entries, the
date the applicant was referred, the name of the employer,
and the classification of work the applicant is being
referred to perform. In the event an applicant is absent at
the time his name is called, he is marked "absent" on the
register and is thereafter ineligible for referral until he
reregisters at the hiring hall.
The facts as to the experience which the alleged discrimi-
natees had in "shaping," or endeavoring to use, the
Respondent's hiring hall are set forth below.
Richard D. Sheehan
Sheehan has been an ironworker since 1966. He became
a member of Local 399,5 located in Camden, New Jersey,
in 1967. He has been registering for employment as an
ironworker at the Respondent's hiring hall since 1966. In
June 1975, Sheehan attempted to transfer from Local 399
4 Under the contract between the BCA and the District Council of
Ironworkers, as well as the consent decree in U.S. v. Plumbers Local 24, et
al., all of the locals in the Council are to follow the same procedure that is
described here.
s Local 399, along with the Respondent, is affiliated with the Internation-
al Association of Bridge, Structural & Ornamental Ironworkers. The same is
true of all other union locals to which reference will be made in the
succeeding pages of this Decision.
a The 10(b) period for the Charging Parties begins on the dates listed
below for the respective named individuals (all dates are for the year 1976):
March 28, Leonard Gibson and William Handley; March 30, Mario
Collelo, George Hartung, Robert Hartung. William McGuire, Richard
Sheehan, and George White; April 4, Thomas Cullinane; April 6, Frank
Frega; April 21, Richard Gilbert; April 29. Onofiro Samarelli; May 26,
Joseph Bucci; June 3, Louis DiMascio and John Douglas.
to Local 45, but his application was rejected. Sheehan
testified that, before he did so, he discussed the matter with
Business Agent Venner, and the union official sought to
disuade him by telling him that such a course "was not a
good idea"; that a transfer into Local 45 "would be a court
matter . . . and a long drawn-out process"; and that, in
any event, it was "up to me [Venner] who work[s] and who
doesn't work."
Photocopies of the complete registration records of the
Respondent for the period in questions were received in
evidence. Sheehan signed the register on February 12,
1976, and was referred on April 29, 1976, to Elizabeth Iron
for structural work. The referral register indicates that
there were 29 Local 45 members who signed the register
subsequent to March 30 (the 10(b) date as to Sheehan) and
before April 29, who were referred to perform work that
Sheehan had listed as being qualified to perform. Of these
29 members of Local 45 who were referred ahead of
Sheehan, all but 2 were listed in the register as "stewards,"
"call backs," or as having been "requested" by a specific
employer. The Respondent contends that any member of
Local 45 in the above-mentioned categories constituted
exceptions to the first-in, first-out rule and could be
referred out of order. Later in this Decision, the Respon-
dent's argument as to these purported "exceptions" will be
considered. For the present, and assuming, arguendo, the
validity of this contention, two other members of Local 45,
S. Flynn and M. Callaghan, were referred on April 19 to do
structural work. This skill was among those which Sheehan
listed as being qualified to perform. Neither Flynn nor
Callaghan was listed as being in one of the aforementioned
"exception" categories.
Sheehan signed the register again on June 10, 1976, and
was not referred until the following July 19 to perform
structural welding work for American Steel Erectors. In the
meantime, 45 members of Local 45 who signed the register
after he did were referred before Sheehan to jobs which he
was listed as qualified to perform. Among this group of 45
were at least 5 members of the Respondent whom the
register does not classify as being "stewards," "requested,"
"call backs," or "late calls." These were R. Bucco, J.
Carroll, R. Beyer, R. Iacouzzi, and L. McClanahan. 7
Sheehan signed the register again on July 21 and was
marked absent on October 4. The register lists 115
members of Local 45 who signed the register after Sheehan
did on July 21, and who were referred prior to October 4 to
perform work skills which Sheehan listed as being able to
perform, including 9 individuals who were not described as
"stewards" or as being in any of the other "exceptions"
7 Ronald Richardson, another member of Local 45, was also referred out
of turn and ahead of Sheehan, notwithstanding the fact that he was not
listed in any of the "exception" categories. However, Richardson was also
black. The Respondent has contended that in compliance with the consent
decree it had to be especially responsive to its black members. Although it is
clear that the decree only required that the Respondent not discriminate
against blacks, there may be some tangential merit to this argument which
Local 45 has advanced. In any event, it is evident from the referral register
that Richardson was often referred out of chronological order. However,
because of the above contention by the Respondent, he is not named in any
of the listings which appear hereinafter. Donald L. Baskerville, Joe Cypress,
Kenneth Kitchens, S. Jackson, and Edwin McMillian, all of whom were also
black members of the Respondent Local, are classified similarly and are not
listed below, notwithstanding the fact that they were frequently referred out
of turn and ahead of the Charging Parties.
222
IRONWORKERS, LOCAL 45
mentioned above. These were M. Callaghan, Jr., J. Cree-
gan, E. Dingier (referred on two different occasions), R.
Drumm (referred on four different occasions), R. Deecken,
J. lacouzzi, W. Kearney, A. McNeil, and R. Melley.
Sheehan last signed the register on October 4, 1976, and
as of February 22, 1977, had not been referred. Neverthe-
less, during that period, 75 members of Local 45 who
signed the register subsequent to Sheehan were referred
prior to February 22 to perform work skills listed by him.
Included in this group of 75 were 14 who do not fall within
any of Local 45's "exceptions." These were M. Callaghan,
Jr. (referred on two different occasions), J. Creegan, S.
Flynn, M. Halvorsen, T. Hendricks, F. Kelly, T. McNeil,
W. McVicar, E. Melley, J. O'Connell, F. Otersen, R. Reilly,
T. Reilly, and T. Toomey.
George White
White had a journeyman ironworker's book with Local
399. According to his credible testimony, he started in the
trade in 1970 and has been registering at Local 45's hiring
hall since that time.
White signed the register on December 5, 1975, and was
referred on June 1, 1976, to perform rod work for Balezza.
In the period after March 30, 1976 (the 10(b) date as to
White) but before June 1, 1976, 64 members of Local 45
who signed the register after White were referred to work at
skills which he listed as being able to perform. Of these
individuals, eight do not come within any of Local 45's
"exceptions." These were: B. BeBee, F. Dorsett (referred
on two different occasions), S. Flynn, G. Goldey, R.
Hardiman, J. MacGregor, J. Morris, and M. Morris.
White signed the register again on June 11, 1976, and
was referred to work on September 17 to perform rod work
for Safeway Construction. In the meantime, 77 members of
Local 45 who signed the register subsequent to White were
referred to jobs prior to September 17 to perform skills
listed by him. Included in this number were eight members
of Local 45 who do not come within any of the Respon-
dent's "exceptions." These were: R. Beyer, R. Bucco, J.
Carroll, R. Drumm (referred on two different occasions),
R. Dumma, J. lacouzzi (referred on two different occa-
sions), L. McClanahan, and I. McNeil.
White signed the register once more on September 20,
and his name was called on November 9, at which time he
was marked absent. During that same period, 15 members
of Local 45 who signed the register after White were
referred prior to November 9 to perform skills listed by
him. At least two of these individuals, T. lacouzzi and R.
Melley, do not fall within any of Local 45's "exceptions."
White last signed the register on December 27, 1976, and
as of February 22, 1977, his name had not been called.
Nevertheless, T. Toomey and R. Reilly, two members of
Local 45 who signed the register subsequent to White, were
referred prior to February 22 to perform skills listed by
him. Neither Toomey nor Reilly fall within the Respon-
dent's "exceptions."
William McGuire
McGuire credibly testified that he had been an ironwork-
er since 1952. He joined Local 399 in 1953 and has been
shaping Local 45's hiring hall since that time. On two
different occasions he sought, without success, to transfer
into Local 45.
McGuire signed the register on March 23, 1976, and was
referred on July I to American Steel to perform structural
work. During the period after March 30 and prior to July I,
108 members of Local 45 who signed the register after
McGuire were referred to jobs to perform skills listed by
him. At least 15 of these individuals do not fall within
Local 45's "exceptions." These were: B. BeBee, J. Brooks,
R. Bucco, M. Callaghan, Jr., E. Dingier, P. Dorsett, G.
Douglas, S. Flynn, B. Hanlon, B. Hendricks, J. Iacouzzi, J.
Kelly, J. MacGregor, J. McNeil, and M. Morris.
McGuire signed the register again on August 20, 1976,
and was referred on October 5, 1976, to Weber Engineering
to perform structural work. During that period, 69 mem-
bers of Local 45 who signed the register after McGuire
were referred prior to August 20 to perform skills listed by
him. Included in that number were eight who do not fall
within Local 45's "exceptions." These were: J. Creegan, R.
Deecken, E. Dingier, R. Drumm, R. Dumma, J. Kearney,
W. Kearney, and E. Melley.
McGuire signed the register again on November 8, 1976,
and as of February 33, 1977, lie had not been called for
work. Nevertheless, 24 members of Local 45 who signed
the register after November 8 were referred to jobs prior to
February 22 to perform skills listed by him. Included in
that group were four members who do not fit within Local
45's "exceptions." These were: T. Hendricks, F. Otersen,
R. Reilly, and T. Toomey.
Robert Hartung and William Handley
Hartung has been an ironworker since 1959. He is a
member of Local 399 and has been shaping Local 45's
hiring hall since he became an ironworker. Handley has
been a member of Local 399 since 1967 and has been
shaping Local 45's hiring hall since 1962.
Both attempted to transfer into Local 45 during the
summer of 1975. In this connection they were interviewed
by the executive board of the Local, but both of their
applications were rejected. They then appealed this ruling
to the International, but the latter refused to reverse the
decision of the Local. Both Hartung and Handley testified
that, on the evening of their meeting with the executive
board, Venner talked with them about their request for
transfers and sought to discourage them with the statement
that they would find that "trying to get in ... would cost a
lot of money for lawyer fees and nobody would get in."
Hartung testified that Venner then told them that "while
. . .in office he would send the local members out to work
first and take care of his friends and [then] the out of
towners." Handley testified that Venner told them that
"even if we were to transfer in, there won't be no guarantee
of any kind of work for us because he had to take care of
the local men first, then his friends, then out of towners."
According to Handley, Venner told them "no one would be
allowed to get into the local because [once] one person was
allowed in, it would open up the door for everybody to get
in." In about mid-September, when Hartung was at the
union hall, Venner told him that he had heard that
Handley was "going to go to the NLRB," and that "he
223
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
didn't want no trouble." According to Hartung, Venner
then told him that, if he and Handley withdrew their
transfer cards, they could go to work. Hartung testified that
thereafter he and Handley discussed the matter again and
withdrew their transfer requests. s
Hartung signed the register on March 29, 1976, and was
referred to a job on April 27, 1976. There were 10 members
of Local 45 referred prior to the time he was, who signed
the register after he did, and they were referred to perform
skills listed by him. This number included S. Flynn and M.
Callaghan, Jr., neither one of whom fell within Local 45's
"exceptions."
Hartung signed the register again on May 3, 1976, and
was referred on June 4 to perform work for American
Swimming Pool. In the meantime, 26 Local 45 members
who signed the register after he did were referred before he
was to perform skills listed by him. Included in this number
were F. Dorsett and R. Hardiman, two individuals who do
not come within Local 45's "exceptions."
On June 24, Hartung signed the register once more and
was referred on July 27 to work for Pelham Fence. During
that period, 34 members of Local 45 who signed the
register after Hartung were, nevertheless, referred prior to
July 27 to perform skills listed by him. Included in this
number were R. Beyer, R. Goldey, Jr., J. lacouzzi (who was
referred twice during this period), and L. McClanahan,
none of whom fell within Local 45's "exceptions."
On August 30, 1976, Hartung signed the register again
and was referred on October 13 to perform work for Morin
Erectors. During that same period, 70 members of Local 45
who signed the register after Hartung were referred prior to
October 13 to perform skills listed by him. Included in this
group were eight individuals who did not fall within Local
45's "exceptions." These were: R. Bucco, J. Creegan, E.
Dingler, R. Drumm (referred on two different occasions),
J. Kearney, W. Kearney, D. MacGregor, and E. Melley
(referred on two different occasions).
On November 26, 1976, Hartung signed the register once
more. As of February 22, 1977, he had not been referred.
Nevertheless, 13 members of Local 45 who signed subse-
quent to him were referred to jobs prior to February 22 to
perform skills listed by him. Four of these individuals, T.
Hendricks, F. Otersen, T. Toomey, and R. Reilly, do not
fall within Local 45's "exceptions."
Handley signed the register on March I, 1976, and was
referred on April 27 to perform rod work for an employer
named Glenwall. Between March 28 (the date the 10(b)
period commenced as to Handley) and prior to April 27, 11
members of Local 45 who signed the register subsequent to
Handley were referred to jobs to perform skills listed by
him. This included S. Flynn who did not fall within Local
45's "exceptions."
On June 4, 1976, Handley signed the register again and
on August 25 he was referred to Aniero Concrete to
perform mesh work. During that period, 84 members of
Local 45 who signed the register subsequent to Handley
were referred to jobs for the performance of skills listed by
him. Of these individuals, 12 do not fall within Local 45's
8 The quotations which appear above from the testimony of these two
witnesses were generally denied by Venner when the latter was on the stand.
His denials were not persuasive, however, and it is my conclusion that both
"exceptions." These were: R. Beyer, J. Brooks, R. Bucco, J.
Carroll, E. Dingier (referred to jobs on two occasions), R.
Drumm, R. Goldey, Jr., R. Hanlon, J. Iacouzzi (referred to
jobs on three occasions), J. Kelly, L. McClanahan, and R.
Phillips.
On October 28, 1976, Handley signed the register again,
and as of February 22, 1977, his name had not been called.
However, 18 members of Local 45 who signed the register
subsequent to Handley were referred before February 22 to
perform skills listed by him. Five of these individuals, do
not fall within any of Local 45's "exceptions." These were:
M. Halvorsen, T. Hendricks, F. Kelley, R. Reilly, and T.
Toomey.
Mario Colello
Collelo credibly testified that he has been an ironworker
and a member of Local 17, Cleveland, Ohio, since 1970,
and that he has been shaping Local 45's hiring hall since
then.
Colello signed the register on December 5, 1975, and was
referred on May 7, 1976, to perform rod work for National
Industrial Design. Between March 30, 1976 (the date the
10(b) period began for Colello) and prior to May 7, 40
members of Local 45 signed the register subsequent to
Colello but were referred before he was to perform skills
listed by him. This number included F. Dorsett, S. Flynn,
R. Goldey, Jr., and J. Morris, four individuals who do not
fall within Local 45's "exceptions."
On June 7, Colello signed the register again, and on
September 17 he was referred to Safeway Construction to
perform rod work. During that period, 57 members of
Local 45 who signed the register after Colello were referred
before he was to perform skills listed by him. This number
included nine individuals who do not fall within Local 45's
"exceptions." These were: R. Beyer, R. Bucco, J. Carroll,
R. Drumm (referred on two different occasions), R.
Goldey, Jr., J. Iacouzzi, T. Iacouzzi, J. Kelly, and J.
McNeil.
On September 20, Colello signed the register again, and
on November 4 he was referred to Paddock Pool to
perform rod work. While Colello was waiting to be referred
during this period, nine members of Local 45 who signed
the register after Colello were referred before him to
perform skills listed by him. One of this number, T.
lacouzzi, who was referred on November I to perform rod
work for Paddock, does not fall within any of Local 45's
"exceptions."
On December 15, 1976, Colello signed the register once
more and as of February 22, 1977, he had not been
referred. Nevertheless, T. Toomey, a member of Local 45,
signed the register on January 3 and was referred ahead of
Colello on January 25 to perform rod work for an employer
named Steers. Toomey does not fall within any of Local
45's "exceptions."
Hartung and Handley were more credible witnesses as to the incidents
described in this paragraph.
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IRONWORKERS, LOCAL 45
Frank Frega
Frega credibly testified that he has been an ironworker
since 1969, that he is a member of Local 399 in Camden,
and that he has been shaping Local 45's hiring hall since
1969.
Frega signed the register on March 1, 1976, and was
referred on June 4 to perform rigging work for Brennan.
Between April 6 (the date the 10(b) period began for Frega)
and June 4, 52 members of Local 45 signed the register
subsequent to Frega but were referred before he was to
perform skills listed by him. Six of these individuals do not
fall within Local 45's "exceptions." These were: B. BeBee,
F. Dorsett, R. Hardiman, J. Kelly, J. MacGregor, and M.
Morris.
Frega signed the register again on June 7 and was
referred on September 7 to perform rod work for Kerzner.
During that period, 74 members of Local 45 signed the
register after Frega but were referred before he was to
perform skills listed by him. Of these individuals, II do not
fall within Local 45's "exceptions." These were: R. Beyer,
R. Bucco, M. Callaghan, Jr., J. Carroll, R. Drumm (who
was referred three times in this period), R. Goldey, Jr., G.
Douglas, J. lacouzzi (who was referred twice within this
period), J. Kelly, L. McClanahan, and R. Murphy.
Frega next signed the register on September 12, and on
October 27 he was marked absent for not being present
when his name was called. Within that period, members of
Local 45 who signed the register after Frega were referred
before his name was called to perform skills listed by him.
Five of these individuals do not fall within Local 45's
"exceptions." These were: E. Borel, J. Creegan, E. Dingier,
J. Kearney, and E. Melley.
Frega signed the register again on October 28, 1976, and
as of February 22, 1977, his name had not been called.
Within that period, nine members of Local 45 who signed
the register after Frega were referred before his name was
called to perform skills listed by him. Five of these
individuals do not fall within Local 45's "exceptions."
These were: T. Hendricks, F. Kelly, F. Otersen, T. Reilly,
and T. Toomey.
Thomas Cullinane
Cullinane, a member of Local 45, credibly testified that
he began as an apprentice ironworker in 1971 and, upon
completion of the training program in 1974, became a
journeyman.
Cullinane signed the register on March 23, 1976. The
register indicates that his name was called on July 1, at
which time he was marked "absent." The register also
indicates, however, that after April 4, 1976, (the date the
10(b) period began for Cullinane) and prior to July 1, 107
members of Local 45 were referred to jobs that required the
skills which Cullinane listed. Furthermore, 14 of those
individuals do not fall within Local 45's "exceptions."
These were: B. BeBee, J. Brooks, R. Bucco, M. Callaghan,
Jr., E. Dingler, F. Dorsett, G. Douglas, R. Hardiman, B.
Hendricks, J. lacouzzi, J. Kelly, J. MacGregor, J. McNeil,
and M. Morris.
Cullinane signed the register again on September 28,
1976, and his name was called on February 7, 1977, at
which time he was marked absent. The register, however,
indicates that 84 members of Local 45 who signed the
register after Cullinane were referred prior to February 7 to
perform skills listed by him. This last group includes 16
individuals who do not fall within any of Local 45's
"exceptions." These were: R. Beyer, R. Bucco, M. Calla-
ghan, Jr. (referred twice during this period), J. Creegan, E.
Dingier, S. Flynn, M. Halvorsen, T. Hendricks, T. Iacouz-
zi, C. Lemenille, T. McNeil, W. McVicar, E. Melley, J.
O'Connell, T. Reilly, and T. Toomey.
Leonard Gibson
Gibson, who is black, joined Local 45 and started with its
apprenticeship program in 1970. He became a journeyman
ironworker in 1973.
Gibson signed the register on April 1, 1976, and was
referred on May 6 to American Steel to perform structural
ironwork. There were 15 members of Local 45 who signed
the register after Gibson, and who were referred to perform
skills listed by him prior to the time that he was sent to the
job with American Steel. This included S. Flynn and M.
Callaghan, neither one of whom fall within Local 45's
"exceptions."
On June 14, Gibson signed the register again, and on
July 7 he was referred to American Steel to perform
structural work. During this period, there were 11 members
of Local 45 who signed the register after Gibson and, who
were referred to perform skills listed by him prior to the
time that he was sent out on July 7. One of these
individuals, R. Bucco, does not fall within any of Local 45's
"exceptions."
On July 22, Gibson again signed the register, and on
October 4 he was referred to Weber to perform structural
welding. During that period, I 11 members of Local 45 who
signed the register after Gibson were referred to perform
skills he was qualified to perform prior to the time that he
was sent out. Included in this number were II individuals
who do not fall within any of Local 45's "exceptions."
These were M. Callaghan, J. Creegan, R. Deecken, E.
Dingier (who was referred three times in this period), R.
Drumm, R. Dumma, J. Kearney, W. Kearney, J. lacouzzi,
E. Melley, and A. McNeil.
On October 25, 1976, Gibson signed the register again,
and as of February 22, 1977, he had not been called. In the
meantime, 31 members of Local 45 who signed the register
after him were referred prior to February 22 to perform
skills listed by him. This last group includes six individuals
who do not fall within Local 45's "exceptions." These
were: M. Halvorsen, T. Hendricks, F. Kelly, F. Otersen, R.
Reilly, and T. Toomey.
Richard Gilbert
Gilbert credibly testified that he started in the trade in
1966; that he joined Local 28 in Richmond, Virginia, in
1968; and that he has been shaping Local 45's hiring hall
since 1966.
Gilbert signed the register on February 4, 1976, and on
April 29, he was referred to Elizabeth Iron to perform
structural work. During that period, there were seven
members of Local 45 who signed the register after Gilbert
225
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and who were referred after April 21 (the date the 10(b)
period began for Gilbert) to perform skills listed by him
prior to the time that he was sent to the job with Elizabeth
Iron.
On June 14, Gilbert signed the register again, and on
July 29 he was referred to American Steel to perform
structural work. During the period that he was awaiting a
referral, 55 members of Local 45 who signed the register
after he did were referred before he was to perform skills
listed by him. Included in this group were seven individuals
who do not fall within Local 45's "exceptions." These
were: R. Bucco, J. Carroll, R. Goldey, Jr., J. Kelly, J.
Iacouzzi (who was referred two times in this period), L.
McClanahan, and R. Phillips.
On August 4, Gilbert signed the register, and on October
5 he was marked as being absent when his name was called.
During that period, 78 members of Local 45 who signed the
register after he did were referred to perform skills listed by
him before October 5. Included in this group were nine
individuals who do not fall within Local 45's "exceptions."
These were: M. Callaghan, J. Creegan, R. Deecken, E.
Dingier, R. Drumm (who was referred twice in this period),
R. Dumma, J. Kearney, W. Kearney, and R. Melley.
Gilbert signed the register again on October 15, 1976,
and as of February 22, 1977, his name had not been
called.9 During that period, there were eight members of
Local 45 who signed the register after he did who were
referred to perform skills listed by him. Included in that
group were three individuals, T. Hendricks, F. Kelly, and
T. Toomey, who do not fall within Local 45's "exceptions."
George Hartung
Hartung credibly testified that he has been an ironwork-
er since 1955; that he was a member of Local 399, of
Camden, New Jersey, from 1956 to 1963; and that he is not
presently a member of any union. He has been shaping
Local 45's hiring hall since 1955.
Hartung signed the register on November 19, 1975, and
his name was called on May 6, 1976, at which time he was
marked absent. During that period, 43 members of Local
45 who signed the register subsequent to Hartung were
referred after March 30 (the date the 10(b) period began for
Hartung) and before May 6 to perform skills listed by him.
Included in this number were six individuals who do not
fall within Local 45's "exceptions." These were: E. Borel,
F. Dorsett, R. Goldey, T. Hendricks, J. Morris, and T.
Reilly.
On May 12, Hartung signed the register again, and his
name was not called until September 7, at which time he
was marked absent. During that period, 89 members of
Local 45 who signed the register after Hartung were
referred prior to September 7 to perform skills listed by
him. Included in this number were 12 individuals who do
not fall within Local 45's "exceptions." These were R.
Beyer, J. Brooks, R. Bucco, E. Dingier, R. Drumm, J.
9 Gilbert acknowledged that he has, at various times, registered for work
at every hiring hall in the District Council; and that the last time he
registered at a hiring hall other than that of the Respondent was with Local
I I, Newark, in September 1976. Subsequent to the close of the hearing, Mr.
Raymond Kruse, counsel for Local 45. submitted an affirmation to the
effect that he had examined the registration books of Local I and found
Carroll, G. Douglas, R. Goldey, Jr., B. Hanlon, B.
Hendricks, J. lacouzzi (who was referred twice in this
period), and J. Kelly.
Hartung last signed the register on February 2, 1977, and
as of February 22, 1977, had not been referred.
Onofiro Samarelli
Samarelli credibly testified that he has worked at the
trade since 1970. He has been shaping Local 45's hiring
hall since 1970. He is not a member of any union and
credibly testified that he has never registered for employ-
ment with any other local.
Samarelli signed the register '0 on April 29, 1976, and was
referred on June 4 to perform rod work for American
Swimming Pool. During the period that he was awaiting a
referral, 28 members of Local 45 who signed the register
after he did were referred before he was to perform skills
listed by him. Included in this group were two individuals,
F. Dorsett and R. Hardiman, who do not fall within Local
45's "exceptions."
On June 24, Samarelli signed the register again and was
referred on September 17 to perform structural work for
Garden State Erectors. During the period that he was
awaiting referral, 117 members of Local 45 who signed the
register after he did were referred before he was to perform
skills listed by him. Included in this number were 10
individuals who do not fall within Local 45's "exceptions."
These were: R. Beyer, R. Deecken, E. Dingier (who was
referred twice during this period), R. Drumm (who was
referred four different times during this period), R. Goldey,
Jr., J. lacouzzi (who was referred twice during this period),
J. Kearney, J. Kelly, C. McClanahan (who was referred
twice during this period), and A. McNeil.
On September 27, 1976, Samarelli signed the register
again and was referred on February 8, 1977, to perform
structural work for Elizabeth Iron. During the period that
he was awaiting referral, 86 members of Local 45 who
signed the register after he did were referred before he was
to perform skills listed by him. Included in this number
were 14 individuals who do not fall within Local 45's
"exceptions." These were: R. Bucco, M. Callaghan (who
was referred twice during this period), J. Creegan, S. Flynn,
M. Halvorsen, T. Hendricks, T. Iacouzzi, C. Lemenille, T.
McNeil, W. McVicar, E. Melley (who was referred twice
during this period), J. O'Connell, T. Reilly, and T. Toomey.
Samarelli last signed the register on February 10, 1977, and
as of February 22, 1977, had not been referred.
Louis DiMascio
Louis DiMascio credibly testified that he has been an
ironworker since 1962, that he has been shaping Local 45's
hiring hall since then, and that he became a member of
Local 399 in Camden in 1964.
DiMascio signed the register on June 24, 1976, and,
when his name was called on September 20, he was marked
that on September 21, 1976, Gilbert had registered with Local I 1, and that,
on September 30. Gilbert was referred to a job from that hiring hall. Since
the consent decree stipulated (par. 26) that there could be no multiple
registrations, no violations by the Respondent as to Gilbert will be found for
the period on and after September 21, 1976.
lo He signed as "Fred" Samarelli.
226
IRONWORKERS, LOCAL 45
absent. During the period that he was awaiting a referral,
65 members of Local 45 who signed the register after he did
were referred before he was to perform skills listed by him.
Included in this group were eight individuals who do not
fall within Local 45's "exceptions." These were: R. Beyer,
R. Drumm (who was referred twice during this period), R.
Dumma, R. Goldey, Jr., J. Iacouzzi (who was referred
twice during this period), J. Kearney, J. Kelly, and J.
McNeil.
On September 20, he signed the register and the next day
was referred to Balezza Construction to perform rod work.
On September 30, 1976, he signed the register again, and
as of February 22, 1977, his name had not been called.
During that period, however, 26 members of Local 45 who
signed the register after he did were referred to perform
skills listed by him. Included in this number were nine
individuals who do not fall within Local 45's "exceptions."
These were: J. Creegan, T. Hendricks, T. Iacouzzi, F.
Kelly, W. McVicar, E. Melley, F. Otersen, R. Reilly, and T.
Toomey.
John Douglas
Douglas credibly testified that he has worked at the trade
since 1970, that he is a journeyman ironworker, and that he
has been a member of Local 399 since that same year. In
1976, he attempted to transfer into Local 45 but was
unsuccessful. He further testified that since June 1976 he
has not been registered at the hiring hall of any union other
than Local 45.
Douglas signed the Respondent's register on June 24,
1976, and was referred out on July 8 to perform rod work.
During the period that he was awaiting this referral, three
members of Local 45 who signed the register after he did
were referred before he was to perform skills listed by him.
Douglas signed the register again on September 27, 1976,
and as of February 22, 1977, his name had not been called.
In the meantime, 19 members of Local 45 who signed the
register after he did were referred prior to February 22,
1977, to perform skills listed by him. Included in this group
were five individuals who do not fall within Local 45's
"exceptions." These were J. Creegan, T. Hendricks, T.
Iacouzzi, F. Kelly, and T. Toomey.
C. Findings and Conclusions with Respect to the
Alleged Violations of Section 8(b)(1)(A) and (2)
1. The alleged grounds on which Local 45
referred members out of chronological order
a. Stewards
The Respondent contended at the hearing in the present
case, although not in its brief, that it had the right to refer
certain ironworkers out of order. This argument rested on
the fact that, while the collective-bargaining agreement
required that the hiring hall be operated "in a nondiscrimi-
natory manner and on a nondiscriminatory basis," in
accordance with the consent decree of the U.S. District
Court, the latter permits certain out-of-turn referrals. In
general, these exceptions are stewards or foremen, replace-
ments, and those expressly requested by name by a specific
employer. In Ironworkers 1, the Respondent raised this
defense and it was rejected by Administrative Law Judge
Ricci on the ground, inter alia, that the designation of a
disproportionate number of Local 45 members as stewards,
employer requests, etc., was an obvious subterfuge to
conceal the discriminatory referral of its own members
over the nonmembers who had signed the register. The
facts as to this defense in the present case will now be
considered.
Paragraph 27(g) of the consent decree provides:
Senior experienced applicants may be referred out of
chronological sequence to act as stewards for the work
crew at a particular job site as may be deemed
necessary or proper by the union official in charge of
referrals thereto. This shall be limited to one steward
for each contractor. [Emphasis supplied.]
Business Agent Venner testified that at the time of the
hearing in the present case Local 45 had 206 members, and
that about 70, whom he described as "out-of-towners,"
regularly "shape" the Respondent's hiring hall. Moreover,
as to this latter group of "out-of-towners," or nonmembers
of Local 45, it is evident from the earlier findings that some
have been shaping the Respondent's hall for 10, 15, and
even more than 20 years. Obviously, many, if not all, of
these men must be experienced ironworkers. Nevertheless,
the referral registers which were received in evidence
disclose that from March 28, 1976, to February 22, 1977,
the Respondent referred over 80 of its own members out of
chronological order to act as stewards on jobsites, while at
the same time referring only four nonmembers of Local 45
to act as stewards. Although the Respondent called many
witnesses, in addition to its business agent and several of its
principal officers, it offered no evidence to establish that
the members of Local 45 were more "senior" and "experi-
enced" than the nonmember applicants for jobs. It is now
found that the Respondent's designation of a highly
disproportionate number of its own members as "stew-
ards" was, in fact, as the Board stated in another case, "a
mask for discriminatory motivation." Ashley, Hickham- Uhr
Co., 210 NLRB 32, 33 (1974).
b. Employer requests
Paragraph 27(c) of the consent decree provides that:
An applicant may be referred out of chronological
order if a contractor requests the applicant by name.
The union shall record such request together with the
name of the contractor's representative making the
request. The union shall not make available to calling
contractors the list of names of persons then currently
registered for referral. The union shall request written
confirmation from the contractors of each request or
referral of applicant by name.
An examination of the referral registers for Local 45
reveals that from March 28, 1976, to February 22, 1977,
Local 45 referred 221 of its members out of chronological
order allegedly because certain employers requested them.
In contrast, the referral registers indicate that during that
same period only about 28 nonmembers of Local 45 were
specifically requested by employers and referred out of
227
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
chronological order. Even though the paragraph of the
consent decree quoted above requires that Local 45 keep a
file of all such requests from employers, the Respondent
made no effort to produce any such documentation.
Consequently, the record in the present case is barren of
any evidence that even one member of Local 45, let alone
221, was specifically requested by an employer.
The testimony of two witnesses for the General Counsel,
Gibson and Cullinane, both of them members of Local 45,
is relevant here. Thus, Gibson testified that, at the regular
monthly meeting of the Respondent in August 1976,
Business Agent Venner asked that all members who were
stewards or foremen "look out for the Local Brothers" by
requesting them when they called the hall for ironworkers.
Cullinane testified that, at the September 1976 meeting of
Local 45, Venner again asked the members who were
stewards or foremen "to come to the hall or call up and ask
. . . for Local 45 men." Requests such as these, made
pursuant to the business agent's urging, and based solely
on membership in Local 45, plainly violated Section
8(b)(1)(A) and (2) of the Act.
c. Late calls or emergency requisitions
Paragraph 19(a) of the consent decree provides that the
referral registers are to be available for signing on Mon-
days through Fridays each week, between the hours of 7
a.m. and 9 a.m. Thereafter, paragraph 27(k) reads as
follows:
Emergency employer requisitions communicated dur-
ing other than normal referral hours or on Saturdays,
Sundays or Holidays may be filled in an expeditious
manner without regard to the chronological order of
registration for referral.
The referral registers of the Respondent are marked to
indicate that during the period from March 28, 1976, to
February 22, 1977, nine members of Local 45 were referred
out of chronological order pursuant to the exception
provided by paragraph 27(k), supra. The General Counsel,
however, subpenaed the contractors' requisition register
which contains data on the date and hour when employers
submitted their requests for employees to the Respondent.
An examination of the requisition register as to several of
the names listed on the referral register as having been late
calls, or emergency requests, discloses gross inaccuracies
which cast further doubt upon the reliability of the latter. A
few of these examples are outlined below.
The referral register indicates that G. Douglas signed the
referral register on July 12, 1976, and was referred out of
chronological order on July 29 to Pelham Fence as the
result of a request by the employer made "After 9:00
a.m."" The contractor's requisition register, however,
notes the request of Pelham Fence for an ironworker as
having been made on July 28, rather than July 29, and
further specifies that the request was made at 7:25 a.m.,
uI The quoted phrase is the precise notation that appears in the register
to explain the referral of Douglas on the date in question.
12 The foregoing phrases in quotation marks are from Local 45's referral
register.
13 The inaccuracy of the referral register in another respect is evident
from a further example which appears in the record. Thus, Thomas
rather than "After 9:00 a.m.," as the referral register would
have the reader believe.
The referral register indicates that Richard Phillips
signed the register on July 15, 1976, and was referred on
July 20 to Masken at 9:30 a.m. According to the requisition
register, however, Masken requested two ironworkers at 7
a.m. on the latter date. The referral register further
indicates that C. Lemenille signed the referral register on
September 28, and Joe McConville and J. McConville on
October 8. They were all referred to Interstate Iron on
October 11, and, according to the referral register "After
9:00 a.m." The notation which appears in the requisition
register, however, indicates that Interstate Iron made a
request for three ironworkers on the day in question at 7
a.m., rather than "After 9:00 a.m."
The referral register further indicates that Martin Calla-
ghan and M. Callaghan, Jr., signed the register on October
13 and November 22, 1976, respectively. The register also
indicates that, on December 6, the former was referred to
Beaumeister and "Sent out at 9:45 a.m.," and that, on
December 7, the latter was also referred to that same
employer and "Sent out at 10:00 a.m." 12 The contractors'
requisition register, on the other hand, notes a request from
Beaumeister for three ironworkers as having been received
by Local 45 at 6:25 a.m. on December 6, and another
request from the same employer for one more ironworker
as having been received at 6:25 a.m. on December 7. It is
evident that the foregoing examples from the Respondent's
own records establish that the alleged "late calls" or
"emergency employer requests" are, at the very least, most
inaccurate and are not even supported by Local 45's own
log of contractor requisitions.13
d. Call backs
From March 28, 1976, to February 22, 1977, the
Respondent's referral register lists approximately 54 mem-
bers of Local 45 who were referred out of chronological
order purportedly because certain employers recalled them
to a jobsite. In contrast, only 10 noianembers of Local 45
were recalled in the same manner.
There was no provision in the consent decree that would
permit out-of-turn referrals for alleged "call backs," and at
the hearing the Respondent made no effort to offer either
testimony or documentation that would corroborate the
aforesaid entries in the referral register. Nor did the
Respondent offer any explanation for the wide disparity
between the large number of times that members of Local
45 were designated as "call backs" in the referral register in
comparison with the relatively few instances in which
nonmembers were given this label. Under these circum-
stances, it is now found that the better than 5-to-1 ratio in
which the Respondent favored its members in the out-of-
turn referrals it classified under this heading is further
evidence of the continuing pattern of discrimination
Cullinane credibly testified that he was referred to only three jobs in 1976,
each of only I day's duration (i.e., Elizabeth Ironworks on June 6,
Hackensack Steel Erectors on July 28, and Slattery Associates on August 2).
The referral register, however, indicates that Cullinane was waiting for work
throughout the entire year, and that on the one occasion his name was
called, purportedly on July 1, he was absent from the hiring hall.
228
against nonmembers which Local 45 has practiced in the
operation of its hiring hall.
2. Conclusions as to the nonmembers of Local 45
During the period from March 28, 1976, to February 22,
1977, the Respondent made approximately 495 referrals of
its own members. Of this number approximately 375, or 75
percent, were referred out of chronological order.14 In view
of the almost total lack of any evidence offered by the
Respondent for this massive preference accorded its own
members, it is now found that these statistics alone are
further evidence that the Respondent was illegally motiva-
ted in the operation of its hiring hall. U.S. v. Ironworkers
Local 86, et al., 443 F.2d 544, 551 (C.A. 9, 1971), cert.
denied 404 U.S. 984. It is further found, on the basis of the
findings set forth earlier herein, that the Respondent
discriminated against Richard Sheehan, George White,
William McGuire, Robert Hartung, William Handley,
Mario Colello, Frank Frega, Richard Gilbert,15 George
Hartung, Onofiro Samarelli, Louis DiMascio, and John
Douglas, as well as other nonlocal applicants, because of
their nonmembership in Local 45. In so doing, it violated
Section 8(b)(1IXA) and (2) of the Act. Local Union No. 305,
United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and
Canada (Mechanical Contractors Association of Connecti-
cut), 211 NLRB 826, 829-830 (1974); Amalgamated Meat
Cutters and Butcher Workmen of North America, Local No.
576 (Westfield Thriftway Supermarket), 201 NLRB 922
(1973).
3. Thomas Cullinane and Leonard Gibson
Both Cullinane and Gibson were metl.bers of Local 45.
Nevertheless, from the findings set forth above, it is
manifest that many other members of Local 45 were
referred from the Respondent's hiring hall out of chrono-
logical order and in spite of the fact that Cullinane and
Gibson were higher on the list. Local 45 offered no
explanation as to why these two members were bypassed in
referrals.
A union is not free to prefer some of its members over
others, as the Board has clearly held in a substantial line of
cases. Miranda Fuel Company, Inc., 140 NLRB 181 (1962);
General Truck Drivers, Warehousemen, Helpers and A utomo-
tive Employees, Local 315, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of A mer-
ica (Rhodes & Jamieson, Ltd), 217 NLRB 616, 617, 619
(1975). In view of the failure of the Respondent to offer any
evidence as to why it chose to ignore the positions of both
Cullinane and Gibson 1 6 on the referral register and,
instead, to refer others out of turn to the detriment of the
aforenamed, it is now found that, by such conduct as to
14 As found earlier, this total included 82 referred out of order as
"stewards," approximately 221 as "requests." 9 as "late calls," and 54 as
"call backs." In addition, there were two who were referred as apprentices,
one as a trainee, and about seven others for miscellaneous reasons.
i' As to Gilbert, however, there should be no remedial award as to the
period from and after September 21. 1976. when he was on the referral
register of Local I 1, Newark, as well as that of the Respondent.
16 Gibson was a generally credible witness. However, as to one instance,
that finding must be modified. Thus, Gibson testified that in December
IRONWORKERS, LOCAL 45
Cullinane and Gibson, Local 45's conduct violated Section
8(bXIXA) and (2). International Union of Operating Engi-
neers, Hoisting and Portable Local No. 513, AFL-CIO (S. J.
Groves and Sons Co.), 199 NLRB 921, 922 (1972).
Finally, at the hearing and in its brief, the Respondent
raised the defense that most of the Charging Parties were
not qualified for referral, that they were lacking in the
required skills for journeymen ironworker status, and that
the locals (other than the Respondent) which had issued
them union cards had acted capriciously. There is no merit
to this defense. Apart from Joseph Bucci, whose case is
considered separately, infra, this contention is plainly an
afterthought on the part cf the Respondent. All of the 14
individuals discussed above had been "shaping" Local 45's
hiring hall for an extended period, some of them for over
20 years. The Respondent offered no evidence that the
qualifications of any of them had ever been questioned by
its agents in the hiring hall. Lastly, and most significantly,
there is no evidence that any of them was ever told that he
was not being referred because of any alleged lack of
qualifications. International Brotherhood of Boilermakers,
Iron Shipbuilders, Blacksmiths, Forgers and Helpers Local
Lodge No. 169, AFL-CIO (Riley Stoker Corporation), 209
NLRB 140, 150 (1974); International Brotherhood of Electri-
cal Workers, AFL-CIO, Local 82 (National Electrical
Contractors Association, Dayton, Ohio, Chapter), 182 NLRB
59, 61-62 (1970), enfd. 440 F.2d 1184 (C.A. 6, 1971).
4. Joseph Bucci
Bucci was a young man of 19 at the time of the hearing.
During the summer of 1975, he had taken, but failed, the
apprenticeship test which Local 45 had given. In Ironwork-
ers I, it was alleged that on about December 1, 1975, Bucci
went to the hiring hall of Local 45 and sought to register,
but that Business Agent Venner refused to let him sign the
book. Administrative Law Judge Ricci held that, on the
record in Ironworkers I, there was no foundation for the
allegation that Bucci was discriminatorily denied an oppor-
tunity to sign the referral register.
At the present hearing, Ralph Bucci, father of Joseph
Bucci, testified that on December 1, 1975, after Venner had
refused to let Joseph Bucci sign the register, he questioned
the business agent as to the reason for rejecting his son.
According to Ralph Bucci, Venner told him: "As long as I
[Ralph Bucci] am trying to bust the Local he [Venner]
wouldn't permit my son to sign."
At that time, Ralph Bucci had been involved in extended
litigation with the Respondent over his own right to
transfer into Local 45. On four different occasions, in as
many different years, the last time being in 1975, he sought,
unsuccessfully, to transfer from Local 489, in Scranton, to
the Respondent. After the last rejection, Bucci, Sr., filed
suit against Local 45 in the New Jersey state courts. This
1976, when he went to the Local's office to pay his dues, Business Agent
Venner inquired as to whether he still had unfair labor practice charges
against the Union, and he answered in the affirmative. According to
Gibson, Edward O'Connor, president of Local 45, who was present,
thereupon told him that he "ought to give up [his I book and go on welfare."
O'Connor took the stand at the hearing in the present matter and
vehemently denied that he had made any such comment. The latter was
convincing in this denial and it is now found that O'Connor did not make
the remark which Gibson attributed to him.
229
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
action was still pending when Bucci and his son went to the
hiring hall on December 1, 1975. Thereafter, on May 4,
1976, Bucci, Sr., filed an unfair labor practice charge
alleging discrimination by Local 45 as to him. This charge
resulted in the issuance of the complaint in Ironworkers I1,
and on September 22, 1976, the hearing was held in that
matter. Later, as noted earlier, Administrative Law Judge
Dyer issued his decision in Ironworkers II, wherein he
found that Local 45 had discriminated against Ralph
Bucci, and in which he recommended the issuance of an
order requiring that the Respondent herein be required to
make Bucci whole for any losses suffered as the result of
the discrimination practiced against him.
Joseph Bucci credibly testified that from August 20 to
November 17, 1976, as the result of a referral by Local 489,
he was employed as an ironworker to do rod work for the
Bechtel Power Corporation in Warwick, Pennsylvania. On
November 26, 1976, after finishing the job in Pennsylvania,
Joseph Bucci, accompanied by his father, returned to Local
45's hiring hall and again requested Venner to let him sign
the referral register. According to the son, on this occasion
Venner asked him whether he had an Ironworkers' book,
and when he sought to explain that although he did not
have a book he had acquired some experience, Venner
peremptorily closed the window on him without waiting for
any explanations. Ralph Bucci then, again, asked the
business agent why he was continuing to deny his son
access to the referral register, and, according to the father,
Venner's response was "For the same reason I told you last
time."
At the hearing, Venner at first testified that only a couple
of months elapsed between the first and the second time
that Joseph Bucci was at the hall, and that there was no
possibility of Bucci's having gained the necessary experi-
ence in the short while between his visits. Later, however,
he conceded that, in fact, an entire year might have elapsed
between Bucci's appearances at the hall. Earlier herein, it
was found that much of Venner's testimony was incredible
when he sought to establish that he made no effort to prefer
members of Local 45 over nonmembers in the operation of
the hiring hall. Based on the earlier conclusions as to the
unpersuasive nature of Venner's testimony, as well as the
contradictory and unconvincing nature of his account of
his exchanges with the Buccis, it is my conclusion that the
version of these two incidents given by the latter is more
credible than the denials of the business agent.
It is now found that Venner's explanation for denying
Bucci's son access to the hiring hall on the first visit was
that the applicant's father was trying to "bust" the Local. A
year later, when the son had acquired at least some
experience, Venner made no effort to inquire as to that
fact, but peremptorily denied him the opportunity to sign
up without offering the son any chance to describe the
experience he had had. Then, when Bucci, Sr., asked that
Venner offer a ground for this last rejection, the business
agent told him that it was "For the same reason I told you
last time."
The Respondent was not obligated to allow the younger
Bucci to sign the referral register when he had no
17 These tabulations do not include the occasions cited in the preceding
paragraph where the Respondent's register did not offer any self-serving
qualifying experience, as, in fact, was found in Ironworkers
1. At the same time, Local 45 was not free to deny access to
its hiring hall because Venner resented the litigiousness of
Bucci, Sr., and the resort which the latter had had to the
Board and the courts in seeking to establish his own right
to transfer into the Respondent's local. Consequently, from
the circumstances of the second rejection of Joseph Bucci,
described above, it is my conclusion that the younger Bucci
was denied access to the Respondent's referral register not
because he lacked experience, but because of the vendetta
between Venner and his father. By this course of conduct,
the Respondent violated Section 8(b)(l)(A) and (2) of the
Act.
5. Concluding Findings
Earlier herein it was found that in dozens of instances
during the period from March 28, 1976, to February 22,
1977, the Respondent's agents in charge of the hiring hall
passed over the alleged discriminatees. It is now found
that, apart from those occasions when those marked
"stewards," "requested," "late calls," and "call backs,"
were preferred over the alleged discriminatees, the latter
were discriminatorily denied referrals by the Respondent
in many cases when those whom it favored were not
designated "exceptions" even on the registers of Local 45.
Consequently, as to those occasions and by the out-of-turn
referrals of those for whom even the Respondent could
offer no explanation, it is now found that the Respondent
violated Section 8(bXX1)(A) and (2) of the Act. It is further
found that, in this respect, Local 45 violated those sections
of the Act as to Mario Colello 16 times, Thomas Cullinane
31 times, Louis DiMascio 19 times, John Douglas 5 times,
Frank Frega 27 times, Leonard Gibson 24 times, Richard
Gilbert 18 times, William Handley 21 times, George
Hartung 19 times, Robert Hartung 22 times, William
McGuire 28 times, Onofiro Samarelli 34 times, Richard
Sheehan 31 times, and George White 21 times. It is also
found that a substantial number, at least half of those
referrals listed in the Respondent's register as "stewards,"
"requests," "late calls," and "call backs," were intentional-
ly and falsely so designated and violated the Act.
Earlier it was also found that in hundreds of other
instances the Respondent arbitrarily classified many out-
of-turn referrals as "exceptions" and labeled them as
"stewards," "requests," "late calls," and "call backs" under
circumstances which plainly established that this practice
was largely without basis in fact and was being used to
discriminate against the nonmembers in favor of the
members of Local 45. This occurred, as found supra, on at
least the following number of occasions as to the above-
named discriminatees: Colello 91 times, Cullinane 161
times, DiMascio 75 times, Douglas 17 times, Frank Frega
110 times, Gibson 148 times, Gilbert 124 times, Handley 85
times, George Hartung 114 times, Robert Hartung 133
times, McGuire 173 times, Samarelli 115 times, Sheehan
233 times, and White 139 times.17 On the basis of the
findings set forth above, it is now found that at least half of
the foregoing referrals were improperly and falsely desig-
exculpatory evidence that those referred ahead of the particular discrimina-
tee were "exceptions."
230
IRONWORKERS, LOCAL 45
nated as "exceptions" to conceal the manner in which the
hiring hall was being used by the Respondent to prefer its
own members, and that by so doing the Respondent
violated Section 8(b)(1)(A) and (2) in each instance when it
resorted to this subterfuge.
For the reasons set forth earlier and on the facts found
herein, it is also found that the Respondent violated
Section 8(b)( )(A) and (2) by its treatment of Joseph Bucci.
The General Counsel included an elaborate statistical
analysis of the Respondent's referral register that was
attached to his brief as Appendixes I through 14. In order
that the reviewing authority may have the benefit of this
analysis, the aforesaid appendices have been marked as
Administrative Law Judge's Exhibits I through 14, and all
of them have been placed in the exhibit file of this case.
They are now received in evidence.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent, as set forth in section
III, above, occurring in connection with the operations of
the employers and 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.
CONCLUSIONS OF LAW
1. 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 15 ironwork-
ers named in the complaint, and other as yet unidentified
ironworkers, in violation of Section 8 (aX3) of the Act, the
Respondent, International Association of Bridge, Structur-
al & Ornamental Ironworkers, Local 45, has violated and is
violating Section 8(bXIXA) and (2) of the Act.
2. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent violated Section
8(b)XIXA) and (2) of the Act, as set forth above, it will be
recommended that it be ordered to cease and desist from
such conduct and take affirmative action designed to
effectuate the policies of the Act. Specifically, it will be
recommended that this case be consolidated with JD-615-
76 and JD-861-76, if those cases are still pending before
the Board, and that the remedies therein found appropriate
for Local 45 be extended to the present proceeding and
enlarged by the instant case. On the other hand, even if this
case is not consolidated with the aforesaid cases, it is
recommended that the recommended remedy fashioned by
Administrative Law Judge Ricci in JD-615-76 be applied
herein.
[Recommended Order omitted from publication.]
231