Ironworkers Local Union No. 290

National Labor Relations Board - Board Decisions

Jun 30, 1970

184 N.L.R.B. 177 (N.L.R.B. 1970)

IRONWORKERS LOCAL UNION NO. 290 177
Ironworkers Local Union No. 290, International
Association of Bridge , Structural and Ornamental
Iron Workers , AFL-CIO (Mid-States Steel
Erection Company ) and Stephan Michael Sydor.
Case 9-CB-1669
earnings during that period, with interest thereon at
the rate of 6 percent per annum, in accordance
with the Board's formula set forth in F. W. Wool-
worth Company, 90 NLRB 289, and Isis Plumbing
& Heating Co., 138 NLRB 716."
June 30, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On March 4 , 1970, Trial Examiner Maurice S.
Bush issued his Decision in the above -entitled
proceeding , finding that Respondent had engaged
in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner 's Decision.
Thereafter , Respondent filed exceptions to the
Trial Examiner 's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended , the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing, and finds that no
prejudicial error was committed The rulings are
hereby affirmed The Board has considered the
Trial Examiner 's Decision, the exceptions and brief,
and the entire record in this case, and hereby
adopts the findings , conclusions, and recommenda-
tions of the Trial Examiner except as modified
herein.
We agree with the Trial Examiner 's recommen-
dation enjoining the discriminatory operation of
Respondent ' s hiring hall. However , to remedy the
violations found, we do not consider it necessary,
and accordingly do not adopt , that portion of the
recommended remedy prescribing a modus operands
for the hiring hall or making variations thereof sub-
ject to approval of the Regional Director Cf. Local
138, International Union of Operating Engineers,
AFL-CIO [ Nassau and Suffolk Contractors Associa-
tion] v. N.L R. B., 321 F .2d 130 (C A. 2) Instead,
we shall direct that Respondent maintain records of
its hiring hall operations and make those available
to the Regional Director upon request
ADDITION TO THE REMEDY
Substitute a comma for the period at the end of
the first sentence of the last paragraph in the sec-
tion of the Trial Examiner's Decision entitled "The
Remedy," and add thereto the following "less net
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner , as modified
below, and hereby orders that Respondent, Iron-
workers Local Union No. 290, International As-
sociation of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO, its officers, agents, and
representatives, shall take the action set forth in the
Trial Examiner's Recommended Order, as so
modified.
1 Substitute the following for paragraph 2(b):
"(b) Maintain permanent written records of its
hiring and referral operations which will be
adequate to disclose fully the basis upon which
referrals are made and, upon request of the Re-
gional Director of the Board or his agents, make
available for inspection, at reasonable times, any
records relating in any way to the hiring and refer-
ral system."
2. Substitute the following for the penultimate
paragraph of the notice:
We will maintain permanent written records
of our hiring and referral operations which will
be adequate to disclose fully the basis upon
which each referral is made and, upon request
of the Regional Director of the Board, or his
agents, make available for inspection, at all
reasonable times, any records relating in any
way to the hiring and referral system.
3. Delete the last paragraph of the notice in its
entirety.
TRIAL EXAMINER'S DECISION
Statement of the Case
MAURICE S. BUSH, Trial Examiner: The Charging
Party herein is Stephan Michael Sydor, a high
school teacher of English, Latin, and Russian in the
public school system of Dayton, Ohio, who works
as an ironworker during the summers, Christmas
vacations, and various other school holidays during
the school year.
Although not affiliated with any Ironworkers
local union, Sydor has received work as an iron-
worker for a number of years in the greater Dayton
area through the exclusive hiring hall of the
Respondent Local Union No. 290 herein.
184 NLRB No. 21
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Aggrieved at his inability to receive work through
the Union's exclusive hiring hall for a period of
about a month in the summer of 1969 and believing
this resulted from discriminatory treatment, Sydor
filed charges against Local No. 290, alleging vari-
ous unfair labor practices.
Pursuant to such charges,' a complaint was is-
sued on September 8, 1969 The principal thrust of
the complaint is that Respondent Local No. 290 in
the operation of its exclusive hiring hall discrimina-
torily denied Sydor referrals for employment to em-
ployers for a period of about 30 days in the summer
of 1969 because of his nonmembership in Local
No. 290 in violation of Section 8(b)(I)(A) and (2)
of the National Labor Relations Act. The complaint
also alleges an infringement of Section 7 of the Act
in violation of Section 8(b)( I )(A) of the Act by an
alleged statement of Local No. 290 's business
representative to Sydor that he would be referred
out for employment provided he withdrew his
original charge herein. A more detailed statement
of the issues is set forth below.
The answer of Respondent Local No. 290 denies
any unfair labor practices.
The case was tried before the Trial Examiner on
October 30 and 31, 1969. Briefs filed by counsel
for General Counsel and for the Respondent Union
Local No. 290 have been carefully reviewed and
considered.
Upon the entire record and from his observation
of the witnesses, the Trial Examiner makes the fol-
lowing:
Findings of Fact
1. JURISDICTIONAL FINDINGS
A. The Union
Ironworkers Local Union No. 290, International
Association of Bridge, Structural and Ornamental
Iron Workers, AFL-CIO, hereinafter called
Respondent Local Union No. 290 or simply Union
or Local No. 290, is a labor organization as defined
in Section 2(5) of the Act.
B. The Association
Associated General Contractors of America,
West Central Ohio Chapter of Dayton, Ohio,
hereinafter called the Association, is a multiem-
ployer association which exists and functions for
the purpose, among others, of representing its
members in collective bargaining with Local 290
and other labor organizations.
C. Employer Members of the Association
The following named companies are members of
the said Association and are engaged in the build-
' The original charge herein was filed on July 18, 1969, and served upon
Local No 290 on July 24, 1969, an amended charge was filed on August
27, 1969, and served on Local No 290 on August 29, 1969
ing and construction industry within the State of
Ohio:
1. Mid-States Steel Erection Company,
hereinafter called Mid-States
2. B. G. Danis Company,2 hereinafter called B.
G Danis.
3. Maxon Construction Company, hereinafter
called Maxon Construction.
4. Ray Johnson Construction Company,
hereinafter called Johnson Construction.
5. McGraw Construction Company,
hereinafter called McGraw Construction.
6. Flohr Construction Company, hereinafter
called Flohr Construction.
D. Volume of Business of Association Members
During the past 12 months, a representative
period, Mid-States, B. G. Danis, Maxon Construc-
tion, Johnson Construction, McGraw Construction,
and Flohr Construction had a direct inflow of
products, in interstate commerce, valued in excess
of $50,000, which were purchased and shipped
directly to them in the State of Ohio from points
outside the State of Ohio. During the same period,
the above-named Employers performed services
valued in excess of $50,000 for other employers in
the State of Ohio each of whom, in turn, shipped
and sold goods and materials valued in excess of
$50,000 directly to points outside of Ohio.
E. Employer and Commerce Requirement
At all times herein material, the Association,
Mid-States, B. G. Danis, Maxon Construction,
Johnson Construction, McGraw Construction, and
Flohr Construction and each of the members have
been employers as defined in Section 2(2) of the
Act and, engaged in commerce and in operations
affecting commerce as defined in Section 2(6) and
(7) of the Act, respectively.
II. THE ISSUES
The issues herein by agreement of the parties at
the hearing are as follows:
1 Whether Respondent Local Union No. 290 is
in violation of Section 8(b)(1)(A) and (2) of the
Act by reason of the following alleged conduct:
(a) Discriminatorily refusing to refer the Charg-
ing Party (Sydor) out for employment for a period
of about a month in 1969 from its exclusive hiring
hall as an ironworker to member-employers of the
Association because of his nonmembership in the
Union, thereby attempting to cause and causing
said member-employers of the Association to dis-
criminate against the Charging Party in violation of
Section 8(a)(3) of the Act.
! Originally shown as B G Dannis Company in the complaint, the
spelling was corrected by motion to read B G Danis Company
IRONWORKERS LOCAL UNION NO 290 179
(b) Refusing to refer the Charging Party out to
positions of employment as an ironworker with As-
sociation members, Johnson Construction, Mid-
States Construction, McGraw Construction, and
Flohr Construction for a period of about a month in
1969 on an equal, basis with union members
because of his nonmembership in the Union,
thereby attempting to cause and causing said em-
ployers to discriminate against the Charging Party
in violation of Section 8(a)(3) of the Act.
(c) Discriminatorily operating its exclusive hir-
ing hall arrangement with the Association by refus-
ing since about June 24, 1969, to refer nonmem-
bers of the Union out on an equal basis with mem-
bers of the Union to positions of employment as
ironworkers with member-employers of the As-
sociation , thereby attempting to cause and causing
said member-employers to discriminate against em-
ployees in violation of Section 8(a)(3) of the Act.
2. Whether Respondent Local Union No. 290 is
in violation of Section 8(b)( I )(A) by reason of the
following alleged conduct:
Restraining and coercing the Charging Party
(Sydor) on or about July 25, 1969, in the exercise
of rights guaranteed in Section 7 of the Act by the
conduct of the Union' s Business Agent George
Clark at the Union's hiring hall in telling the Charg-
ing Party that he would be referred for employment
with construction employers provided he withdrew
the charge he had filed against the Union on July
18, 1969.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Local No. 290's Exclusive Hiring Hall Privilege
Under Collective- Bargaining Contract
On June 1, 1968, Local Union No. 290 and the
Association entered into a 2-year master collective-
bargaining agreement covering wages , hours, and
working conditions of ironworkers in 16 counties or
parts of counties in Ohio and 4 counties in Indiana.
Under the terms of the "Referral Clause" of the
agreement, the Union has the exclusive right to
furnish and refer to the member-employers of the
Association all the ironworkers they require within
the territory covered by the contract, with excep-
tions not here applicable.
The referral clause provides for the selection and
referral of applicants by the Union on the basis of
four priority groups designated as groups "A," "B,"
"C," and "D." The Union under the referral clause
is required to register each applicant for employ-
ment on separate registers to be maintained for
each of these priority groups.3
The register for group "A" is for applicants who
(a) have previously passed a journeyman's ex-
amination conducted by a duly constituted local
union affiliated with the International, (b) have
worked at the trade as a mechanic or apprentice for
the past 5 years, (c) have been employed for a
period of at least 4 years during the last 5 years by
employer-members of the Association, and (d)
have actually resided for the past year within the
geographical area constituting the normal construc-
tion labor market.
The register for group "B" applicants are for
ironworkers who (a) have previously passed the
above-described journeyman's examination and (b)
have worked at the trade as a mechanic or ap-
prentice for the past 5 years.
The group "C" register is for applicants who (a)
have worked at the trade as a mechanic or ap-
prentice for the past 3 years or more and (b) have
for the past year actually resided within the geo-
graphical area constituting the normal construction
labor market.
The group "D" register is for all applicants who
have worked at the trade for more than 1 year.
Groups "A" and "B" applicants are generally
referred to as "bookmen" to signify that they have
a book showing membership in a local affiliated
with the International. Applicants on groups "C"
and "D" registers are known as "permit" men.
Although the collective- bargaining contract gives
the Union the exclusive right to select and refer ap-
plicants for employment to the employer-members
of the Association, the referral clause specifically
provides that, "The Union shall select and refer ap-
plicants for employment without discrimination
against such applicants by reason of membership or
non-membership in the Union." (Emphasis sup-
plied.) (Joint Exh. 1, p. 27, par. 4).
Under the terms of the agreement this prohibi-
tion against discrimination is not applicable to all
applicants across-the-board but only to the selec-
tion and referral of applicants within each of the
four priority registers.
The Union is required to "refer applicants to the
Employer by first referring applicants in Group
A in the order of their places on said list and
then referring applicants in the same manner suc-
cessively from the lists in Group `B,' then Group
`C,' and then Group 'D."'
The evidence shows that in actual practice only
members of, Local No. 290 receive the high priority
jobs in group "A."
Notwithstanding the requirement of the collec-
tive-bargaining agreement that the Union maintain
four separate registers for applicants for employ-
ment as above-described, it is an admitted and con-
ceded fact that Local No. 290 has not maintained
any registers of any sort for at least the past 4 years.
3 This appears from the following sentence in the collective-bargaining
agreement "The Union shall maintain each of the separate group lists set
forth above, which shall list the applicants within each group in the order of
the dates they registered as available for employment " ( Emphasis sup-
plied ) (Joint Exh 1, p 28, par 7 )
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under the terms of the contract, Employers have
the right under the agreement to reject any appli-
cant referred by Local No. 290.
Referrals for employment at the Union 's exclu-
sive hiring hall are handled exclusively by the
Union 's business representative , George Clark, ex-
cept when he is on leave . Clark has been the
Union 's business agent for the past 17 years. In the
past 4 years he has substituted his own method of
selecting applicants for referrals, described as by
"sight and memory ," in place of the procedure set
forth in the collective-bargaining agreement as
described above.
Local No. 290 has about 500 members or local
bookmen Of this number 80 to 90 percent are per-
manently employed by contractors and accordingly
never show up at the local's hiring hall for referrals.
Clark can recognize by sight the remaining mem-
bers of Local No . 290 when they appear at the hir-
ing hall for employment He can also recognize by
sight bookmen from other locals and permit men
who apply for job referrals at the hall if he has seen
them at least once before. In the normal day
anywhere from 15 to 30 men show up at the hall
for referrals . When an unknown applicant shows up
at the hiring hall for the first time, Clark will ask his
name and whether he is an out-of-town bookman or
permit man and inquire into his experience.
Recent years have been times of high employ-
ment for ironworkers in the greater Dayton area,
including the summer of 1969 here involved. The
demand for qualified ironworkers frequently ex-
ceeds the number available.
Business Agent Clark opens the hiring hall at
6 30 a.m ., and after sorting out the requests from
the various contractors of the Association for iron-
workers, he would call out the referrals to the men
in the hall through the sliding glass windows of his
office which is adjacent to the hall and separated
from it only by a waist high wall and the sliding
glass panels.
Due to the fact that the use of attendance re-
gisters required by the collective - bargaining agree-
ment has been abandoned by the Union , Clark de-
pends, as above noted , on his "sight and memory"
of the order of the appearance of the applicants at
the hiring hall in making up his job referral lists.
Referrals are generally completed between 8:30
and 9 o'clock each morning . Applicants who have
not received early morning assignments to jobs
sometime remain in the hall until 9 a.m in the hope
of getting a late request for a referral.
Bookmen who are known as journeymen iron-
workers or mechanics are skilled in the eight clas-
sifications of ironwork designated in the collective-
bargaining contract as follows: ( 1) structural, (2)
ornamental , ( 3) reinforcing , ( 4) machinery mover,
(5) rigger and erector , ( 6) welder, (7) fence
erector , and (8 ) sheeter. At the times here per-
tinent the greatest demand has been for ironwork-
ers skilled in structural and reinforcing.
B. Facts Relating to Charging Party's Inability to
get Referrals out of Local No. 30 's Exclusive Hiring
Hall, and Conclusions
Charging Party Sydor, age 45 , was born at Al-
liance, Ohio, and has Bachelor of Arts and Master
degrees from midwestern universities . He has full-
time employment as a high school teacher in the
public school system of Dayton , Ohio, where he
teaches English , Russian , and formerly Latin. He
has been teaching since 1956. Prior to becoming a
teacher he had experience in practically every
phase of shop work, having at times held jobs as a
drop forge operator , press operator , and heater.
Sydor has never been a member of the Interna-
tional Association of Bridge, Structural , and Orna-
mental Iron Workers, AFL-CIO, or any of its lo-
cals, but is a member of the Teacher' s Union and is
vice president of that Union's Miami Valley Coun-
cil, AFL-CIO. He has wide acquaintance among
union officials of various crafts in the Dayton area.
Sydor received his first employment as an iron-
worker in 1963 or 1964 through Local No. 290's
exclusive hiring hall His referrals over the years
have always been as a permit man. He works at the
trade of ironworker only at such ' times as he is not
engaged in his regular profession as a teacher, to
wit, in the summers and during Christmas and
Easter holidays and other shorter school holidays.
Because of the high demand for ironworkers, Sydor
has had very little difficulty picking up work at the
Union's hiring hall prior to the summer of 1969. He
has received practically all of his referrals or assign-
ments from Business Representative Clark. As a
permit man , Sydor pays a "dobie" fee of $3.50 for
each week in which he obtains work through the
hall whereas bookmen of Local 290 pay dues of
$10 per month.
The apparent attraction for Sydor of work as an
ironworker is the ironworkers' wage scale The pay
is $6.15 per hour and $12 30 per hour for all hours
worked on Saturdays, Sundays, and holidays and all
hours after 8 hours on regular workdays . There is
no differentiation in pay for bookmen and permit
men, they all receive the same rate of pay.
Sydor has never sought to qualify as a jour-
neyman ironworker by taking the examinations of-
fered by Local No 290 or any other local of the In-
ternational In the 5 or 6 years that he has worked
part time as an ironworker, he has acquired ex-
perience in work classified by the collective-bar-
gaining agreement as structural , which consists of
putting up and bolting large metal beams; reinforc-
ing, which consists of the installation of rods for the
reinforcement of concrete prior to its pouring; or-
namental work , and welding . More than 50 percent
of Sydor's experience has been in reinforcing,
which is commonly called rod work or rod busting
The work in which he is next most experienced is in
structural work . In one of his referrals , he worked
an entire summer as a welder . He has had limited
IRONWORKERS LOCAL UNION NO. 290
experience as a machinery mover, sheeter, and or-
namental ironworker
In the years prior to 1969, Sydor established a
reputation for doing good work on his job referrals
out of the Union's exclusive hiring hall. Business
Agent Clark, under questioning by the Trial Ex-
aminer, admitted that prior to 1969 Sydor "went
out and done a good job, the best he could do."
The record shows that the mere appearance of an
applicant at the Union's exclusive hiring hall was
recognized as an application for a referral without
any further act on the part of the applicant in-
asmuch as the Union kept no registration lists as
required by the collective-bargaining contract. As
heretofore noted, Clark based his referrals on
"sight and memory" of those present in the hiring
hall. Sydor's appearance at the hall was made con-
spicuous by the fact that he always appeared in
slacks instead of the work trousers worn by most
ironworkers When Sydor was in the hiring hall and
Clark wanted to get his attention from his adjoining
office, he would mockingly shout at him, "Hey,
teacher," instead of calling out his given name or
surname. At times Sydor would not respond to the
appellation "Hey, teacher," but would wait until
Clark called him by his name.
As heretofore indicated, Sydor encountered little
difficulty in obtaining work as an ironworker
through the Union's exclusive hiring hall prior to
1969 He encountered his first real difficulty in ob-
taining work through the Union on June 24, 1969,
and this continued until July 25, except for a 4-day
period of employment within that larger period.
However, in the earlier part of 1969 prior to June
24, he had no trouble receiving work through the
Union. In April during a school spring vacation he
appeared at the hall for a referral and immediately
received work reinforcing concrete for a period of
about a week from Martin & Nettraur Contracting
Company at Bellefontaine, Ohio. At the end of the
week's work, he returned to his high school
teaching position. Similarly, on June 9 on his first
call at the Union's hiring hall after school had let
out for the summer, he received a referral almost
immediately. Business Agent Clark called to him,
"Hey, teacher," and signed him up for a reinforce-
ment job with the Ziegler Construction Company at
a high school under construction at Fairborn, Ohio.
Sydor worked on this job for a period of 2 weeks
until June 23 under Foreman Earl B. McHugh He
and the shop steward, Jack Elam,'volunteered for a
layoff on June 23 when it appeared that the job was
nearly completed, in accordance with common
practice and as a courtesy to Foreman McHugh as
this enabled him to keep on the job a new man who
was McHugh's friend.
Thereafter from June 24 to July 24, except for a
few days as hereinafter noted, Sydor's good fortune
in obtaining referrals from the Union's exclusive
181
hiring hall ended . Notwithstanding virtually a daily
appearance at the Union 's hall for employment, the
only referral he received was for 4 days from June
30 through July 3 with Beaver Steel Erectors at the
Wright - Patterson Air Force Base . The job was as-
signed to him by William F . Veal, assistant business
agent in the absence of Senior Business Representa-
tive Clark . The job also involved reinforcing
concrete . On this job Sydor worked directly under
the supervision of Foreman Jim Carperter On July
3 when the job on hand was just about completed
and Sydor was facing a layoff , Carpenter instructed
Sydor to report to Foreman Raymond Smith', then
on the premises , for work under Smith the follow-
ing week at a new worksite at St . Marys, Ohio.
Sydor walked over to Smith whom he had met only
the day before and told him what Carpenter had
said. Smith uttered a remark which Sydor described
as a profanity and told Sydor that he would not
work with him. He reported this to Carpenter and
the two agreed that it would be best for Sydor to
return to the hiring hall and seek another referral.
Sydor did this on the next workday , Monday, July
7.
Except for the above -described 4-day period of
employment and 1 other day, Sydor 's credited
testimony shows that he presented himself at the
hiring hall for referrals every workday the hall was
open from June 24 to July 24, inclusive , between
the hours of 6:45 to 7 a m. Although many jobs
were called and unfilled during this period, Sydor
was completely unsuccessful in obtaining a referral.
When jobs were called by the business representa-
tive, bookmen belonging to Local No . 290 would
present themselves and receive the referrals they
desired. Sydor from the beginning adopted the pol-
icy of presenting himself for a referral only when a
job was called for which there were no takers He
followed this policy and procedure because he felt
that he didn ' t have the right to cut in on bookmen
who made their sole living as ironworkers whereas
his own principal source of income was from his
profession as a teacher. He frequently told those in
the hiring hall, "I don 't want to cheat any bookman
out of his job."
During the 26-day period here involved, an
average of 15 to 30 applicants for employment
showed up each morning at the hiring hall On June
24 when Sydor asked Assistant Business Represent-
ative Veal for one of the jobs for which there were
no takers , Veal replied that he was sending out only
bookmen . On June 25 when Sydor asked Veal why
he couldn't have one of the unfilled jobs, Veal said
it was because, "You loafed on the last job " The
reference was to the above -noted job Sydor had
taken with the Ziegler Construction Company at
Fairmont under Foreman McHugh . Surprised by
the comment , Sydor immediately drove over to
where McHugh was working and asked him if he
' Erroneously named as Bill Smith by Sydor in his testimony
427-835 0 - 74 - 13
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had made complaints about his work. The credited
testimony of Sydor shows that McHugh denied that
he had made any complaints. Sydor that same
morning then returned to the union hall, told Veal
about McHugh's denial, and asked for a job with
McGraw Construction at Middletown, Ohio, which
was still unfilled Veal denied him the referral with
the statement, "Ironworkers didn't take teachers'
jobs, so [why] should I [Sydor] be over there more
or less taking ironworkers' jobs."
On June 26, Sydor asked Veal for a referral to a
job with McGraw Construction at a worksite at
Middletown as he had the previous day, work
which had been called but not filled Veal turned
him down again on the ground that ironworkers
don't take teachers' jobs and that teachers should
not take ironworkers jobs. But he did offer Sydor a
referral to a job at Lima, Ohio, which none of the
bookmen would take because Lima was so far
distant from Dayton as to require nearly 150 miles
of daily commuting. Resentful that he should have
to take a hardship job that bookmen had rejected
although he paid a "dobie" fee to the Union similar
to union dues, Sydor on this first offer of an assign-
ment to Lima also turned the referral down.
On June 27 Secretary-Treasurer Deaton in the
absence of Clark and Veal was in charge of calling
out job referrals. The credited testimony of Sydor
shows that he heard Deaton call out two job refer-
rals for work in Dayton and that the jobs went un-
filled as he saw none of the applicants in the hall
take the openings. However, when he requested
Deaton for one of the jobs he was told they had
been filled. Although he had turned down a Lima
job the previous day, he then asked for one of the
Lima jobs which had been called but remained un-
filled. Deaton declined with the statement, "I can't
send out any permit men."
On Monday, June 30, the next workday, Veal as-
signed Sydor to the aforementioned job with
Beaver Steel at Wright-Patterson Air Force Base
which lasted as stated through July 3.
Sydor was at the hiring hall the very next work-
day, Monday, July 7, to seek another referral. At
the hall he met Earl McHugh, the foreman he had
worked under for the Ziegler Construction Com-
pany at Fairmont earlier in the summer from June 9
to 23, who invited him to join his crew on a job
reinforcing concrete he was supervising in
downtown Dayton for B G. Danis 5 Sydor asked
Business Representative Clark for a referral to the
job so that he could accept McHugh's invitation.
Although McHugh is Clark's half-brother, Clark
told Sydor, "You ain't going nowhere, I'm still
calling up jobs here " He got no job that day
although the Lima jobs were also still unfilled.
On July 8 and 9 all jobs were filled except jobs at
Lima, but Sydor was not given a chance at one of
them which he wanted despite the extremely long-
distance commuting involved as he "was getting
pretty hungry." On the latter date Sydor asked
Clark why he wasn't being referred out Clark
replied, "You've been popping off, and we're tired
of your [obscene word] " Embarrassed by Clark's
hostility, Sydor left the hall without getting a refer-
ral.
On July 10 and I I no jobs were called and Sydor
did not get sent out. The next workday, July 14,
Sydor again appeared at the hall. Some jobs that
were called were not filled, but Sydor did not get a
referral On July 15 and 16 Sydor again got no
referrals although many jobs were called but Sydor
could not recall whether any jobs were filled on
those 2 days. On July 17 Clark offered a referral to
an ironworker from California who declined the
job. Although the job went unfilled, it was not of-
fered to Sydor.
On July 18 Clark had such difficulty filling orders
for jobs that he became angry and exhorted the
bookmen in the hall to take the proffered jobs, but
many declined because they were waiting for jobs
that called for overtime at double pay of $12.30 an
hour. Although Clark was unable to fill all the or-
ders he had for jobs, he did not offer Sydor a refer-
ral. Two other permit men at the hall, Tom Watson
and John Ruskis, also did not get referrals.
On Monday, July 21,6 many jobs were unfilled
but Sydor again did not get a referral on that day.
Clark, anxious to fill orders for ironworkers, walked
into the hall to solicit applicants to take jobs. He
turned to permit man Watson and asked if he could
tie rods (reinforcing concrete); Watson avidly
replied in the affirmative but when he
acknowledged on inquiry that he did not have a
union membership book, he likewise did not get a
referral that day.
On July 22 at least two jobs went unfilled, a job
at Lima and a sheeting job elsewhere, but again no
jobs were offered to Sydor. Similarly there were un-
filled jobs on July 23 which were not offered to
Sydor.
5 This finding is based on Sydor's credited testimony
c That same day Sydor engaged another permit man at the hall, John
Ray, in a conversation During the course of their conversation, Assistant
Business Agent Veal called Ray aside and spoke to him privately When
Ray resumed his conversation with Sydor, he related to Sydor a remark
Veal had made about Sydor At the trial, counsel for General Counsel
questioned Sydor as to what Ray tole him Veal had said about him (Sydor)
The Trial Examiner sustained an objection to the question on the ground of
hearsay although the answer given to the question was relevant, and
granted a motion to strike the answer Based on a technical argument by
counsel for General Counsel that the question was permissible under the
provisions of sec 5 of the Administrative Procedure Act, the Trial Ex-
aminer vacated the ruling on the hearsay objection and deferred decision
on the objection for determination in this Decision , pending study of the
text of the act which was not available at the hearing An examination of
the Administrative Procedure Act discloses that the contention of counsel
for General Counsel is without merit The Rules and Regulations of the
Board require that hearings "be conducted in accordance with the rules of
evidence applicable in the district courts of the United States under the
rules of civil procedure for the district courts of the United States ," so
far as practical Accordingly the Trial Examiner sustains the objection to
the question on the ground of hearsay and grants the motion to strike the
answer to the question
IRONWORKERS LOCAL UNION NO. 290
On July 23,' after again failing to get a referral,
Sydor contacted a number of labor leaders in an ef-
fort to get help in obtaining work through the hall.
Among such contacts, he spoke to Russell Lane,
president-elect of the Dayton Trades Council who
would soon be successor to the then president,
George Clark, the Respondent 's business represent-
ative from whom Sydor had been unable to get any
referrals during the period here under discussion.
Prior to contacting Lane, Sydor on June 18 had
sought the aid of a Board attorney at the Board's
Regional Office in Cincinnati in obtaining referrals
out of the Union's exclusive hiring hall The Board
attorney gave him forms for the filing of unfair
labor practice charges, but urged him to first seek
an amicable settlement. Sydor filed his charge the
same day.
Following Lane's advice that he refrain from
calling at the hall on July 24 but that he report
there the next day, Sydor presented himself at the
hall again on the 25th. By this time Clark had
received a copy of the charges Sydor had filed with
the Board. Clark through the sliding glass window
of his office called out several job openings at
Lima. Veal, Clark's assistant, then went up to per-
mit men John C. Cooper, John Ray, and John
Ruskis, individually, and asked each of them
separately if they would accept job referrals to
Lima Like Sydor, they had been unable to get
referrals to unfilled orders out of the hall during
much of the same period that Sydor was unable to
get referrals 8 The three men quickly accepted the
bid for their services at Lima and walked over to
the window at Clark's office to receive their refer-
ral slips.
Veal then approached Sydor and also asked him
if he would accept a job referral to a construction
project at Lima. Sydor similarly readily agreed and
walked up to Clark's office for his referral slip.
Sydor's credited testimony shows that Clark, after
giving him his referral slip, said to him in a harsh
and angry voice, "I'm giving you this job because I
have to, but you better withdraw those ..
charges."9 Ruskis was present when Clark made
that remark to Sydor, but remembers the tenor of
the remark somewhat differently as, "Now, you
should drop those charges."
Clark's version of the remark he made to Sydor is
still different. He testified that he told Sydor, "You
ought to drop them charges." The Trial Examiner
credits Sydor's harsher version of Clark's remark.
Ruskis at the time of his testimony, although he had
recently obtained an out-of-town book, was still de-
pendent upon the Union for work referrals Clark
for obvious reasons would be inclined to soften his
version of the actual remark he made to Sydor
Although Clark's retort to Sydor that he had
better withdraw his charges was made after he had
r The date is erroneously shown in the transcript as July 25
" This finding is based on Sydor 's credited testimony
" The omission marks indicated the omission of a "cuss word " which is
183
given him a referral slip to a job at Lima, the Trial
Examiner infers and finds from the remark that it
was a threat to Sydor that he would thereafter be
referred for employment with construction em-
ployers provided he withdrew the charge he had
filed against the Union. This finding from the
record substantially establishes the allegations of
paragraph 10 of the complaint which states that on
the aforenoted date of July 25 the Union restrained
Charging Party Sydor in the exercise of rights
guaranteed in Section 7 of the Act by Clark's con-
duct in telling Sydor "that he would be referred for
employment with construction employers provided
the Charging Party withdrew the charge which he
had filed against the Respondent in this instant
case." Accordingly by the conduct of the Union
here under consideration, the Union is in violation
of Section 8(b)(1)(A) of the Act.
Shortly before the trial herein commenced, per-
mit holders Ruskis, Cooper, and Ray went to Char-
leston , South Carolina, where they were unknown,
to take and pass qualifying tests from an ironwork-
ers local there for membership in that local in
order to improve their chances of getting referrals
out of Local No. 290 at Dayton. Within a week
after their visits to Charleston, they returned to
Dayton. The record supports the inference that the
examinations given by the Charleston local were
much easier to pass than the tests given by Local
No. 290 for membership in No. 290.
Sydor's employer on the Lima job was Mid-
States. He worked on that job from July 25 to Au-
gust 31 when the project he was on was completed.
His credited testimony shows that he never
received a criticism on his work for Mid-States in
the 5 weeks he worked at its Lima worksite. The
job he had with Mid-States was not one of the jobs
that had been called but not filled during the 26-
day period he unsuccessfully sought employment at
the Union's exclusive hiring hall. In that period the
Union had had requests from a number of contrac-
tors, including Flohr Construction, for ironworkers
to work at building sites in Lima which were not of-
fered to Sydor and other permit men. Upon the
completion of Mid-States construction project in
Lima on August 31, Sydor returned to his teaching
job in the public school system of Dayton
The evidence summarized, shows that during the
26-day period Sydor was in attendance at the
Union's hiring hall but unable to get a job referral
the Union was in receipt of but did not fill orders
for ironworkers from McGraw Construction, Flohr
Construction, B. G Danis, Johnson Construction,
and a number of other contractors in the Dayton
area.
Under cross-examination , Clark readily
acknowledged that he could have sent Sydor out on
the term Sydor in his testimony substituted for the actual cuss word used by
Clark, presumably an obscene term
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jobs during the 26-day period of nonreferrals here
under discussion.
Clark's primary excuse for not referring Sydor
out in that period was that he had had complaints
from three contractors for whom Sydor had worked
earlier in the year that Sydor had been laying down
on his jobs. Admitting that Sydor had consistently
done good work in all prior years, Clark testified
that in 1969 Sydor "turned sour for some reason
.." Continuing along this line, Clark testified, "But
I am saying this, if the man would have done his
work he would have been working . because I
need men in a bad way, and, as you heard from
Beaver Steel, they needed men. They have orders
in continuously "10
The second excuse offered by Clark for not refer-
ring Sydor to jobs in the period under discussion is
that Sydor was not at the hiring hall during various
dates in June and July when jobs were being called
and filled. As the Union keeps no registers of appli-
cants who apply for referrals, Clark's testimony that
Sydor was not present on the dates in question is
based entirely on his memory. Inasmuch as there
were as many on the average as 15 to 30, and
sometimes as many as 50, applicants present at the
hiring hall every morning during the 26-day period
under discussion and Clark under cross-examination
was unable to recall the names of any of such appli-
cants, the Trial Examiner is unable to credit Clark's
testimony that he especially remembered that
Sydor was not at the hall during certain dates in the
mentioned period. Similarly the Trial Examiner
does not credit the testimony of former permit man
Ruskis that in the period July 14 to 24, he saw
Sydor at the hiring hall only twice. A lapidarist or
precious stone cutter by choice and a recent iron-
worker by necessity, Ruskis' conflicting testimony
and demeanor did not inspire confidence. Some 3
weeks prior to his testimony herein, he traveled to
Charleston, South Carolina, to take and pass a
qualifying examination from a local there and thus
became an out-of-town bookman in order to
enhance his chances of getting work out of Local
No. 290's hiring hall. Although called as a witness
in behalf of Local No. 290, much of his testimony
was adverse to Local No 290. The Trial Examiner,
as aforenoted, credits Sydor's testimony that he was
at the Respondent's hiring hall for purposes of
referral every morning from June 24 to July 25, ex-
cept July 24, which was the day he sought the aid
of union leaders in the Dayton area in securing
referrals out of Local No. 290's exclusive hiring
hall.
Clark's final stated reason for not referring Sydor
out in the period here under discussion is that he
was unsuited for many of the referrals made in the
period because of lack of experience, particularly
on jobs of great hazard. While it is undoubtedly
true that some jobs were called for which Sydor
was not by training or experience qualified to han-
dle, Clark's own testimony shows that he could
have referred Sydor out on jobs which were within
his experience, particularly on reinforcing and
structural work for which there was greater demand
than supply."
With the above-noted dispositions of the Union's
second and third excuses for not issuing referrals,
there thus remains for consideration only the
question of whether Local 290 refused work refer-
rals to Sydor, not because he was not a union
member, but because it had complaints about the
quality of his work, and, if so, whether under the
Act and under the collective-bargaining agreement
Local No 290 has the legal right to refuse referrals
to applicants on whose prior work performance it
has had complaints from employers Commendably,
Local No. 290 in its brief admits that, "Undeniably,
the Charging Party was discriminated against," but
seeks to legally justify its action in refusing referrals
to Sydor as a "discrimination based on sound hiring
hall policy and with just cause." It asserts that its
admitted discrimination against Sydor was not "un-
lawful discrimination."
Consideration will be given first to the question of
whether Local 290 has had bona fide complaints
about Sydor's work performance, and, if so,
whether such complaints were the real cause for the
admitted discrimination against him in the matter
of job referrals or were merely pretexts for refusing
him referrals because he was a permit man and not
a union member . It may again be noted that for the
5 or 6 years that Sydor worked out of Local No.
290's hiring hall prior to 1969, the Union never had
any complaints about the quality of his work per-
formance from any of his employers. The Respon-
dent Union claims that it had its first complaints
about Sydor's work performance in 1969 and from
three different contractors or employers. Business
Respresentative Clark testified to these alleged
complaints in justification for his not referring
Sydor out for employment in the 26 days here
under consideration. To support his contention, the
Respondent Union called on Clark's half-brother,
Earl McHugh, for testimony. McHugh is a member
of Local No 290 and has been an ironworker for
24 years. He admits that in a prior year when he
worked as a foreman for Levitan Construction
Company and Sydor worked under him that he
found Sydor to be "a good rodman," or reinforcer.
McHugh was also Sydor's foreman on the hereto-
fore mentioned Ziegler construction project at Fair-
born from June 9 to 23. There, too, McHugh found
Sydor to be a good rodman when he commenced
work on the project, but he claims that within a
short time Sydor slowed down and did not carry his
full load of the work with resultant complaints from
`The reference is to the testimony of Raymond Smith, foreman for
Beaver Construction Company
" Even if Sydor had missed some days at the Union's hall, referrals on
any of the days he was present at the hall could have resulted in employ-
ment for all or most of the 26 days he went without referrals
IRONWORKERS LOCAL UNION NO. 290 185
Sydor's coworkers that they would quit unless
Sydor carried his end of the job. McHugh testified
that he made complaints about Sydor's per-
formance on the Ziegler job to Clark and to Clark's
assistant Veal. As heretofore noted when Sydor
heard about the complaint from Clark, he im-
mediately set out to see McHugh and Sydor's
credited testimony shows that McHugh denied that
he made any complaints to Clark about Sydor's
work. McHugh's own testimony shows that he fired
four or five bookmen or union employees on the
Ziegler project for incompetence, but did not fire
or seek to lay Sydor off, but on the contrary that
Sydor was kept on the project until it was nearly
completed when Sydor and Shop Steward Jack
Elam volunteered for layoff in accordance with
common practice. Prior findings show that McHugh
sought Sydor's services at the hall later that
summer. From these facts, the Trial Examiner does
not credit McHugh's testimony that there was
anything wrong with Sydor's work performance on
the Ziegler project.
Another witness called by the Union to support
its contention that Sydor's work performance in
1969 was unsatisfactory was William T. Kelly who
has been a member of Local No. 290 for 25 years.
At the times here pertinent, Kelly was field superin-
tendent for Beaver Steel Erectors with supervision
over iron construction at nine different worksites,
including the aforementioned worksite at the
Wright-Patterson Air Force Base where Sydor
worked as a rod buster (reinforcing) under the
direct supervision of Foreman Carpenter from June
30 through July 3 Kelly testified that on inspection
tours to the Wright-Patterson worksite he had occa-
sion to observe Sydor at his work on 2 different
days, the last being July 3, and that it was his im-
pression that Sydor was not doing his job to the
best of his ability by not carrying his end of the
load Nonetheless, on the very same day, July 3,
when he last purportedly observed Sydor doing un-
satisfactory work he directed Carpenter to send
Sydor over to another worksite, St. Marys, the fol-
lowing Monday on another rod busting assignment.
Prior findings above show that Carpenter relayed
this instruction to Sydor with the further instruction
that he let Raymond Smith, who was to be foreman
on the St. Marys project, know about his new work
assignment but that Smith declined to have Sydor
work for him at the St. Marys project. Kelly
testified that he ordered this transfer of Sydor to St.
Marys notwithstanding his dissatisfaction with
Sydor's work performance because of the shortage
of ironworkers. Foreman Carpenter, who was in a
far better position to evaluate Sydor's work per-
formance, was not called by the Union to testify on
the quality of Sydor's work during the 4 days that
Sydor worked under his direct supervision. Sydor's
credited testimony shows that he received no criti-
cism on his work from Carpenter. Sydor's
testimony further shows that Carpenter is "a very
speedy and efficient pusher [foreman]" and that to
stay and work under Carpenter for the 4 days he
was on the job was in itself "a test of efficiency."
The evidence shows that Sydor's transfer to St.
Marys was directed at a time when the rod busting
work at the Wright-Patterson project was nearing
completion.
Under the above facts, the Trial Examiner does
not credit Kelly's testimony that he found Sydor's
work performance unsatisfactory The mere fact
that Kelly called for Sydor's services as a rod buster
at another jobsite when the work at Wright-Patter-
son was near completion is proof in itself that
Sydor's work was at least acceptable enough for
continued employment because otherwise Kelly
would have made an effort to replace him
The Union's last witness in support of its conten-
tion that Sydor's work performance was unsatisfac-
tory was the aforementioned Raymond Smith, age
27, and a member of Local 290. Smith at the times
here involved worked as a foreman for Beaver Steel
Erectors at the Wright-Patterson worksite. He was
sent there by Field Superintendent Kelly to assist
Foreman Carpenter. Smith's testimony shows that
he regarded Carpenter as general foreman and that
he took instructions from him.
Smith testified that Sydor worked under him in
the several days that Sydor was on the Wright-Pat-
terson project. This is completely contrary to
Sydor's testimony that he worked directly under
Foreman Carpenter and that he hardly knew Smith
Moreover, Smith's testimony is also directly contra-
ry to Field Superintendent Kelly's testimony that
Sydor worked under Carpenter. It also appears
from Sydor's testimony that Smith was at the
Wright-Patterson worksite only a day or two of the
4 days that Sydor worked at that site. Smith's own
testimony shows this to be true inasmuch as Smith
acknowledged that in the week here under discus-
sion (June 30, a Monday, through July 3, the
Thursday preceding the Fourth of July) he had
worked at a different jobsite before coming to
Wright-Patterson.
From the above, the Trial Examiner finds and
concludes that Smith was never at any time Sydor's
foreman at the Wright-Patterson jobsite. Smith
testified that in his alleged capacity as Sydor's
foreman he found Sydor's work unsatisfactory, but
inasmuch as Smith was not as claimed Sydor's
foreman, this testimony is wholly discredited. The
Trial Examiner also finds untrustworthy other
aspects of Smith's testimony. As heretofore noted,
Sydor on Foreman Carpenter's instructions on July
3 contacted Smith and told him that he was as of
the following Monday to report for work at the St.
Marys worksite. Smith admits that Sydor did speak
to him as indicated, but from there on Smith's
testimony is in direct conflict with Sydor's. Sydor
testified that when he presented himself to Smith
on June 3 with the information that he was to work
under him at St. Marys, Smith uttered a profanity
and declared he wouldn't work with Sydor Smith
denied that he made such a refusal but on the con-
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trary testified that he instructed Sydor to report to
the St. Marys job project the following Monday
morning. This denial and testimony is not credited.
The Trial Examiner finds Smith to have been a
wholly unreliable witness.
SUMMARY
In summary the Trial Examiner finds and con-
cludes that Respondent has not presented any
credible testimony that Sydor's work performance
in 1969 was not satisfactory. It is difficult to believe
that a man whose work like Sydor's was, admit-
tedly, consistently satisfactory for some 5 or 6 years
prior to 1969 would suddenly turn sour in 1969. It
is significant that when Sydor finally attained a
referral to Mid-States at a worksite in Lima he was
kept on that job for approximately 5 weeks until
August 31 when the project was completed and he
was in any event obliged to return to his regular
teaching activities. In that long period of employ-
ment he never received any criticism of his work 12
In an earlier 1969 employment it is significant that
he was kept on a referral to Ziegler Construction
Company from June 9 through the near completion
of the project on June 22 although four or five
bookmen on the same project were fired for incom-
petence. If he had been incompetent, surely he too
would have been fired.
The record discloses that starting June 24, 1969,
and continuing for about a month a hostility
developed in Local No. 290 against ironworkers
who were not members of any ironworkers local.
This is evident from the fact that although the
Union's business representatives in that period had
orders for ironworkers they could not fill from the
membership of Local No. 290 or by out-of-state
union members they declined to give referrals for
such job openings to permit men. Business
Representatives Clark and Veal stated on several
occasions in the hall and in conversations with
Sydor that they were referring only "bookmen" and
were not referring permit holders. The record dis-
closes that Sydor was not the only victim of this dis-
crimination in favor of bookmen. Permit men
Ruskis, Ray, and Cooper had similar difficulty
getting referrals out of Local No. 290's exclusive
hiring hall. To overcome this difficulty they
traveled all the way to a local at Charleston, South
Carolina, where it was easy to pass an ironworkers
qualifying examination, passed the examination,
and returned to Dayton as "bookmen" shortly be-
fore the trial of this case opened. The record shows
that this hostility on the part of Local No. 290's
business agents toward permit holder Sydor was
especially strong because they felt that inasmuch as
Sydor made his regular living as a high school
teacher he was an interloper in the ironworker
trade. This hostility expressed itself in such
greetings to Sydor as, "Hey, teacher," and in re-
marks such as, "Ironworkers didn't take teachers'
jobs, so why should Sydor be over there more or
less taking ironworkers' jobs."13
The record amply demonstrates that Local No.
290 discriminated against Sydor in the 26-day
period here involved by failing to give him available
referrals for employment because he was not a
union member. The record leaves little doubt, as it
is admitted by Business Representative Clark, that
Local No 290 could easily have found jobs for
Sydor if it had been so disposed. The Respondent
Union in its brief concedes the discrimination
against Sydor in the matter of job referrals but de-
nies that this was because he lacked union member-
ship, but on the contrary seeks to justify the dis-
crimination by the above-noted defenses, with chief
reliance on the defense that Sydor's alleged poor
work performance in the forepart of 1969 justified
the discrimination. The foregoing analysis of the
evidence and factors of demeanor show that the
Union's defenses against the admitted discrimina-
tion are without merit Based on the entire record,
the Trial Examiner finds and concludes that the
Union's excuses or defenses for the discrimination
are pretextual Accordingly, it is found and con-
cluded that the conceded discrimination was an un-
lawful discrimination under the Act.
With the above-noted finding that there is no
validity to the Union's contention that Sydor's work
performance in his early 1969 work referrals was
unsatisfactory and the resultant conclusory finding
that Sydor was discriminatorily refused referrals
because of his lack of union membership, it
becomes unnecessary to pass on the Respondent
Union's contention by way of defense that it has the
right under the Act and under its collective-bar-
gaining agreement to refuse referrals to applicants
solely because of bona fide belief that their work
performances on prior referrals have not been
satisfactory. But another facet of the Union's dis-
criminatory operation of its exclusive referral
system requires consideration
It is at once evident from an examination of the
collective-bargaining agreement that although it
gives the Union the right to select and refer appli-
cants on the basis of their qualifications as
described in the four classifications of ironworkers
set forth in the contract, the agreement does not
give the Union the right to pick and choose
between two or more applicants in the same priority
ix The record contains a letter from Mid-States, Sydor's Employer, dated
August 29, 1969, to Local No 290 (Resp Exh 2 ) The letter requests
Local No 290 not to send Sydor and three other named ironworkers to the
Company again for employment "because we were very dissatisfied with
them " However , no representative of the Company was called by the
Union to testify as to Sydor's work performance and to be subject to cross-
examination thereon The letter was sent to Local No 290 after Sydor had
filed his charge against the local Under all of the evidence of record, the
Trial Examiner does not give any weight to the Mid-States letter
13 This quotation has been editorialized slightly to make it more gram-
matical
IRONWORKERS LOCAL UNION NO. 290 187
group on the basis of the Union's comparative
evaluation of their relative competence, but im-
poses upon the Union the absolute requirement to
make selections for referrals solely on the basis of
priority of signatures of applicants on the register
for that group. In other words, the contract requires
that the first referral shall go to the applicant whose
signature is first on the register for his priority
group.
In the Trial Examiner's opinion any deviation by
the Union from the requirement of the collective-
bargaining agreement that it "shall list the appli-
cants within each group in the order of the dates
they register as available for employment" may be
considered, among other facts, as an indication of
the discriminatory operation of the Union's exclu-
sive hiring hall privileges, contrary to the Act.
Although contracts similar to the one here under
consideration have long been held valid , the Board
and the courts have been zealous in protecting ap-
plicants for employment under exclusive referral
systems from the discriminatory operations thereof
favoring union members against nonunion appli-
cants.f4
In the instant case the Union, contrary to the
requirement of its collective-bargaining contract,
has for years failed to keep any registers what-
soever for job applicants to sign, but instead sub-
stituted the "sight and memory" of its business
representative of applicants in attendance at the
hiring hall in making selections and referrals for
jobs. The Trial Examiner finds that this deviation
by the Union from the express requirements of its
contract for the maintenance of registers, in com-
bination with all the other circumstances of record
as found above, is a further indication of the
Union's discriminatory operation of its exclusive
referral system.
From the foregoing findings of fact under discus-
sion in the Summary, the Trial Examiner finds and
concludes that the Respondent Union has engaged
in unfair labor practices as alleged in paragraphs 7,
8, and 9 of the complaint in violation of Section
8(b)(I)(A) and (2) of the Act.
Upon the basis of the above findings of fact and
upon the entire record, the Trial Examiner makes
the following
CONCLUSIONS OF LAW
1 The Association and its members, Mid-States,
G. B. Danis, Maxon Construction, Johnson Con-
struction, McGraw Construction, and Flohr Con-
struction, among others, are employers engaged in
commerce within the meaning of the Act.
2 Ironworkers Local Union No. 290 is a labor
organization within the meaning of the Act.
3. Ironworkers Local Union No. 290, by the un-
fair labor practices described hereinabove, has vio-
lated Section 8(b)(1)(A) and (2) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that the Respondent en-
gaged in certain unfair labor practices in violation
of Section 8(b)(1)(A) and (2) of the Act, it will be
recommended that Respondent cease and desist
therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
As the discriminatory practices in the operation
of the Union's referral system appear to have
stemmed directly from the Union's departure from
the procedures prescribed in the collective-bargain-
ing agreement , designed at least on its facets for the
prevention of any discrimination in job referrals
between union members and nonunion members, it
is recommended that the Respondent Union shall
be ordered and directed to hereafter meet all
requirements of the agreement in the matter of job
referrals as set forth in detail therein and in all suc-
ceeding collective-bargaining agreements which of
necessity must similarly contain the same or sub-
stantially equivalent requirements to meet the
requisites of the Act.
More specifically and in accordance with the
Union's own collective- bargaining agreement, it is
recommended that the Union be required to main-
tain separate attendance registers or books of
record for each of the four classes of applicants for
employment designated in the agreement as group
"A," group "B," group "C," and group "D," to ac-
curately, fairly, and nondiscriminatorily reflect the
operation of its referral system for the hiring hall.
Each day of operation shall be recorded on a
separate page in each of the four attendance re-
gisters or books. The names of all employee appli-
cants coming to the hall shall be recorded on the
day of their appearance in the order of arrival in
one of the four attendance registers appropriate for
the applicant A new and complete attendance re-
gister or list should be made on each succeeding
" Local 357, International Brotherhood of Teamsters, Chauffeurs,
Warehouseman and Helpers of America [LosAngeles -Seattle Motor Ex-
press] v N L R B , 365 U S 667 (1961 ), Local Union No 269, Interna-
tional Brotherhood of Electrical Workers, etc , 149 NLRB 768, enfd 357
F 2d 51 (C A 3, 1965), International Brotherhood of Electrical Workers,
Local Union 340 (Walsh Construction Company), 131 NLRB 260, enfd.
301 F 2d 824 (C A 9, 1962), Local 7, International Association of Bridge,
Structural and Ornamental Iron Workers , AFL-CIO ( Waghorne-Broin
Company), 144 NLRB 925
'^ There is evidence in the case that only those employee -applicants who
are members of Local Union No 290 get the first chance at jobs intended
for the high priority group "A " This appears to result from the group "A"
eligibility requirement that applicants shall "have been employed for a
period of at least ( 4) years during the last (5) years by Employers" who are
parties to the collective -bargaining agreements with Local Union No 290
Inasmuch as no issue has been raised on the question of whether the defini-
tion of group " A" applicants in the collective -bargaining agreement, as it
works out in actual operation , discriminates against members of sister lo-
cals and nonunion applicants in favor of members of Local Union No 290,
no determination of that question is intended by this Decision, directly or
indirectly Cf Local Union No 269, International Brotherhood of Electrical
Workers , etc supra
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
day for each of the four groups but carrying over
and listing in the new list any names unreferred on
preceding days.
Since there can be disputes between the business
agent and employees as to whether or not a particu-
lar applicant was or was not at the hall on a particu-
lar day (as there has been in this case between Busi-
ness Representative Clark and Charging Party
Sydor) and whether his appearance or nonap-
pearance on the attendance register accurately
reflects the factual situation, it is recommended
that the Union be required to give applicants proof
of attendance in the following manner: The busi-
ness agent shall each day routinely prepare for each
and every applicant a ticket or slip in duplicate,
setting forth the applicant's name or initials, the
priority group he belongs to, and the date and time
of his appearance at the hall The business agent
shall give the duplicate to the applicant and retain
the original. He shall prepare the attendance re-
gister for each priority group from the retained
tickets and make up his referral lists therefrom.
Variations or reasonable alternatives to the
procedure set forth in this paragraph are not meant
to be precluded and may be adopted, subject, how-
ever, to the approval of the Regional Director for
Region 9 or his agents.
It will be further recommended that the Union be
required to place the attendance registers of each
of the four priority groups on a table or ledge in the
hiring hall for easy access and inspection by em-
ployee-applicants as a matter of right and without
necessity of calling for the registers from the busi-
ness representative, upon completion of each day's
attendance entries in such registers
It is recommended that the modus operandi of the
hiring hall, as arrived at, be disclosed to the said
Regional Director or his agents and that it should
be made available, at reasonable times, to the said
Director or his agents for i year thereafter.
Again in accordance with the Union's own col-
lective-bargaining contract, it is recommended that
the Union be required to "refer applicants to the
Employer by first referring applicants in Group `A'
in the order of their places on said list [attendance
registers] and then referring applicants in the same
manner successively from the lists in Group `B,'
then Group `C', and then Group'D."'
It is also recommended that the Union be
required to scrupulously follow all other provisions
of the collective-bargaining agreement under its
referral clause to assure the nondiscriminatory
operation of its exclusive referral system.
As it appears from Business Representative
Clark's own admission that due to the heavy de-
mand he had for ironworkers he could have kept
Charging Party Sydor in employment by referrals
throughout his 26-day period of unemployment, it
will be recommended that the Union make Sydor
whole for any loss of earnings he may have incurred
in said 26-day period by reason of the discriminato-
ry conduct against him. Although the computation
of backpay will be a matter for determination in the
compliance stage of this proceeding, it may be
noted that the 26-day period in which Sydor had no
referrals includes weekends during which it is not
likely he would have been asked to work, even if he
had received job referrals that would have lasted
over the entire 26-day period. This is because the
evidence shows that job referrals with a high poten-
tial of overtime were gobbled up by applicants in
group "A," the highest priority group, because
overtime under the collective-bargaining contract
pays double time or $12.30 per hour.
RECOMMENDED ORDER
Upon the basis of the above findings of fact, con
clusions of law, and the entire record in the case,
and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, it is recom-
mended that Ironworkers Local Union No 290, In-
ternational Association of Bridge, Structural and
Ornamental Iron Workers, AFL-CIO, and George
Clark, its business representative, and all other of-
ficers, agents, and representatives, shall:
1. Cease and desist from:
(a) Improperly and unfairly operating its exclu-
sive system under its collective-bargaining agree-
ment with the Association so as to discriminate
against nonunion applicants for job referrals
because they are not members of Local No. 290 or
any other local of the International.
(b) Attempting to cause or causing the Associa-
tion and its employer-members to discriminate
against employees or applicants for employment in
violation of Section 8(a)(3) of the Act.
(c) Restraining and coercing employees who
have filed charges against the Union in the exercise
of rights guaranteed in Section 7 of the Act by the
conduct of its agents in telling such employees that
they would be referred for employment with con-
struction employers provided they withdrew their
charges against the Union
2 Take the following affirmative action to effec-
tuate the policies of the Act-
(a) Make whole Charging Party Stephen
Michael Sydor for any loss of pay he may have suf-
fered by reason of the discrimination practiced
against him , as set forth in the section of this Deci-
sion captioned "The Remedy."
(b) Conduct its exclusive hiring arrangement or
practice in the general manner prescribed in the
said Remedy section of this Decision, or in a
manner reasonably equivalent thereto, including
access of the Regional Director or his agents
thereto as more fully set forth in "The Remedy."
(c) Post at its principal office and its hiring hall
copies of the attached notice marked "Appen-
IRONWORKERS LOCAL UNION NO. 290 189
dix."'s Copies of said notice, on forms provided by
the Regional Director for Region 9, after being duly
signed by the Respondent Union's authorized
representative, shall be posted by Respondent
Union immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to members and employee-applicants are
customarily posted. Reasonable steps shall be taken
by it to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 9, in
writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith."
in In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions, recommendations, and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions, and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board " shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
10 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
AND TO ALL OTHER JOB APPLICANTS, UNION OR
NONUNION, FOR JOB REFERRALS THROUGH THE
EXCLUSIVE HIRING HALL OF IRONWORKERS
LOCAL UNION No. 290, INTERNATIONAL
ASSOCIATION OF BRIDGE , STRUCTURAL AND
ORNAMENTAL IRON WORKERS , AFL-CIO
WE WILL NOT improperly and unfairly
operate our exclusive referral system under our
collective-bargaining agreement with As-
sociated General Contractors of America,
West Central Ohio Chapter of Dayton, Ohio,
and its employer-members so as to dis-
criminate against nonunion applicants for job
referrals because they are not members of
Local No. 290 or any other local of the Inter-
national.
WE WILL NOT cause or attempt to cause the
said Associated General Contractors of Amer-
ica, West Central Ohio Chapter of Dayton,
Ohio, and its employer-members to dis-
criminate against applicants for job referrals
because they are not members of Local No.
290 or any other local or the International.
WE WILL NOT restrain and coerce employees
who have filed charges against Local No. 290
in the exercise of the rights guaranteed to them
under Section 7 of the National Labor Rela-
tions Act, by the conduct of our business
representative or any other of our agents, in
telling such employees that they would be
referred out for employment with construction
firms provided they withdrew their charges
against Local No 290.
WE WILL make Stephan Michael Sydor
whole for any loss of earnings he may have suf-
fered as a result of our discrimination against
him.
WE WILL in conducting our exclusive hiring
arrangement or practice, maintain separate
daily attendance records for employees in
groups "A," "B," "C," and "D," as defined in
our collective-bargaining agreement, in order
to reflect accurately, fairly, and nondiscrimina-
torily the operation of our referral system from
the hiring hall in the manner prescribed in the
Trial Examiner's Decision under the heading of
"The Remedy," and, for a period of 1 year, we
will disclose to the Regional Director for Re-
gion 9 or his agents the manner of operation of
the hiring hall.
WE WILL assign all job referrals to employee-
applicants strictly in accordance with the
manner prescribed in our collective-bargaining
agreement , to wit, "by first referring applicants
in Group `A' in order of their places on said list
and then referring applicants in the same
manner successively from the lists in Group
`B,' then Group `C,' and then Group `D."'
IRONWORKERS LOCAL
UNION No. 290,
INTERNATIONAL
ASSOCIATION OF BRIDGE,
STRUCTURAL AND
ORNAMENTAL IRON
WORKERS, AFL-CIO
(Labor Organization)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions, may be directed to the
Board's Office, Room 2407, Federal Office Build-
ing, 550 Main Street, Cincinnati, Ohio 45202,
Telephone 5 13-684-3686