Laborers Local 1140 (Plibrico Sales)

National Labor Relations Board - Board Decisions

Jun 30, 1989

295 N.L.R.B. 883 (N.L.R.B. 1989)

LABORERS LOCAL 1140 (PLIBRICO SALES) 883
Laborers ' International Union of North America,
Local No. 1140 (Plibrico Sales & Service Co.,
Inc.) and Savino DeSantiago. Case 17-CB-3430
June 30, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On January 25, 1989, Administrative Law Judge
David G. Heilbrun issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions and to adopt the recommended Order
as modified.2
AMENDED CONCLUSION OF LAW
Delete Conclusion of Law 4 and renumber the
remaining paragraph.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent , Laborers ' International Union of North
America, Local No. 1140, Omaha, Nebraska, its of-
ficers, agents, and representatives, shall take the
action set forth in the Order as modified.
1. Delete paragraph 1(b) and reletter the subse-
quent paragraphs.
' The Respondent has excepted to some of the judge's credibility find-
ings . The Board 's established policy is not to overrule an administrative
law judge 's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd . 188 F.2d 362 (3d Cit. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
The Respondent 's exceptions contend that the record reveals the
reason the Union insisted DeSantiago and Colton be laid off was because
their working in Omaha , Nebraska, was impermissible as long as they
were on the Council Bluffs, Iowa register . The Respondent suggests,
however , that DeSantiago and Colton could have worked in Omaha if
they had notified the Respondent . In addition to the reasons the judge
enumerates for finding the Respondent violated the Act by causing the
discharges , we specifically observe that the record does not support the
Union 's contention . In fact, the record indicates the Respondent was
aware of other occasions on which Council Bluffs members had worked
in both Nebraska and Iowa, and the Respondent had not disciplined the
members on these occasions. The Respondent failed to present evidence
that the employers or members had provided notification
3 The Respondent excepts to the judge 's finding that the Respondent
was "maintaining and operating its exclusive hiring hall in a discriminato-
ry manner." The complaint does not contain such an allegation , and the
General Counsel did not raise the issue at the hearing We therefore do
not adopt the judge 's finding of this violation . We shall modify the
judge's Conclusion of Law , recommended Order , and notice accordingly.
2. Delete paragraph 2(a) and reletter the subse-
quent paragraphs.
3. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT cause or attempt to cause the dis-
charge of Savino DeSantiago, Larry Colton, or
any other individual because that person is in disfa-
vor for protesting closure of our Council Bluffs
branch office.
WE WILL NOT inform Council Bluffs -resident
members that they will lose work opportunities be-
cause they are in general disfavor with our offi-
cials.
WE WILL NOT in any like or related manner re-
strain or coerce employees or applicants for em-
ployment in the exercise of rights guaranteed to
them in Section 7 of the Act.
WE WILL make whole Savino DeSantiago and
Larry Colton, with interest, for any loss of earn-
ings they suffered by reason of job discrimination
against them on September 10, 1987.
WE WILL notify DeSantiago , Colton, and Pli-
brico Sales & Service Co., Inc., in writing, that we
have no objection to their employment as laborers.
LABORERS ' INTERNATIONAL UNION
OF NORTH AMERICA , LOCAL No.
1140
Naomi L. Stuart, Esq., for the General Counsel.
David D. Weinberg, Esq. (Weinberg & Weinberg, P.C.), of
Omaha, Nebraska, for Respondent.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN , Administrative Law Judge. This
case was tried at Omaha, Nebraska, on May 19, 1988.
The charge was filed by Savino DeSantiago September
16, 1987, and an amended camplaint was issued January
13, 1988 . The primary issue is whether Laborers ' Interna-
tional Union of North America, Local No. 1140 (Re-
spondent), attempted to cause and caused Plibrico Sales
& Services Co., Inc. to discharge employees DeSantiago
and Larry Colton because of their internal union activi-
ties and place of residence , in violation of Section
8(b)(1)(A) and (2) of the National Labor Relations Act.
295 NLRB No. 87
884 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On the entire record, including my observation of the
demeanor of witnesses , and after consideration of briefs
filed by General Counsel and Respondent , I make the
following
FINDINGS OF FACT
1. JURISDICTION
Plibrico Sales & Service Co., Inc. is a Delaware cor-
poration with an office and place of business in Omaha,
Nebraska , where it is engaged in the building and con-
struction industry . During the 12-month period ending
October 31 , 1987, Plibrico purchased and received prod-
ucts, goods , and materials valued in excess of $50,000 di-
rectly from points outside the State of Nebraska, while
selling and shipping products , goods, and materials
valued in excess of $50,000 directly from its Nebraska fa-
cility to points outside the State . On these undisputed
facts I find that Plibrico Sales & Service Co., Inc. is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and , as admitted, I find
that Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Outline of the Situation
Respondent is a constituent of Laborers' International
Union of North America, with a geographical jurisdic-
tion within the States of Nebraska and Iowa as assigned
by the parent organization . Omaha and Council Bluffs
are cities in Nebraska and Iowa, respectively , each situat-
ed on an opposite bank of the Missouri River and sepa-
rated from the other only by this waterway . Respond-
ent's territorial coverage is the general metropolitan area
formed by this configuration , plus a large surrounding vi-
cinity.
Respondent 's main office is in Omaha, while for many
years it has maintained a branch office in Council Bluffs.
These locations had respectively served membership
needs of the approximately 600 persons in and around
Omaha, plus those on the Iowa side estimated variously
as from 38 to 108 persons . The Council Bluffs facility
was closed for economy reasons in June 1987 . Each loca-
tion had traditionally maintained separate "out of work"
lists for their respective sides of the river . Irrespective of
their State of residence , members of the local could sign
either list , but not both. Such lists related to the exclu-
sive hiring hall of Respondent 's standard contract with
employers . As continuingly effective from the labor
agreement of 1983-1986 , pertinent language here read:
The Union shall be the sole and exclusive source
of referrals of applicants for employment and said
referrals shall be on a non -discriminatory basis, not
based on or affected by Union membership, by-
laws, rules, regulations , constitution or any other
aspect of union membership , policies or require-
ments, and the Employer agrees to use the Union
exclusively for this purpose.
(a) In selecting applicants, the Union shall refer
applicants according to the following priority.
1. Those requested by name who have previ-
ously worked for the Employer in the [Union's
geographical jurisdiction].
(e) When resuming work not completed due to
winter shutdown , in the calendar year after the
winter shutdown , the Employer may, at his discre-
tion , recall the workmen who were on such work
on the date it was shut down the previous construc-
tion season . The Employer agrees to call the Union
and furnish the Union the names and addresses of
the men to be recalled pursuant to this Article, two
(2) days before the day they are to be put to work.
(f) Except in cases of emergency and in the case
of men employed pursuant to sub-section "e", the
Employer will give the Union notice of its needs
for workmen and for a twenty four (24) hour period
after said notice will not hire men not referred by
the Union unless the Union has previously notified
the Employer that men are not available . Other-
wise, the Employer may consider the request can-
celled and hire persons not referred by the Union.
(g) If either party shall deviate from the proce-
dures herein described and such deviation shall
result in any damages or penalties being assessed
against the other, and such deviation is caused
solely and proximately by said party, it agrees to
hold the other harmless against said damages or
penalties.
DeSantiago is a lifelong Council Bluffs resident , and has
held membership in Respondent for roughly 13 years. He
led an unavailing protest of the branch office closing,
while also working various jobsites , both in Iowa and in
Nebraska , during the summer months of 1987. On Sep-
tember 10, 1987 he was terminated during the second
day of employment at a Nebraska jobsite, and this pro-
ceeding against Respondent relates chiefly to that event.
B. Basis of Analysis
Henry Frank (Butch) Schaefer II has been Respond-
ent's business manager and financial secretary for a cur-
rent term that commenced on January 1, 1988. During
1987 he was assistant business manager and for about 14
years previous to that served as a business representative
of Respondent with typical duties of a union official re-
lating to contract negotiation and administration.I
Larry Lewis had been the Council Bluffs-based busi-
ness agent for over 7 years, and in charge on the Iowa
side . The closing was to require his layoff, and was re-
flected in the following letter dated June 11 from Lewis
to all Council Bluffs members:
Due to the financial difficulties that have plagued
your Local since the Reagan administration, we
have no other choice but to close the Council Bluffs
office effective June 15, 1987.
To answer a few questions you all will be asking:
I All dates and named months hereafter are in 1987, unless otherwise
indicated
LABORERS LOCAL 1140 (PLIBRICO SALES) 885
1. Your dues will be payable at the Omaha office
P.O. Box 34549 Omaha, NB. 68134.
2. The work list will still be maintained and will
be called by phone for the Council Bluffs members.
3. If a contractor needs employees for the Coun-
cil Bluffs area the Omaha office will dispatch these
employees off this work list by the phone, to save
transportation cost to you.
I personally have enjoyed working with each and
everyone of you for the past 7 years and hope by
the end of this summer to do it again.
If there is any further questions please feel free to
call the Omaha office between 7:00 a.m. and 5:00
p.m. at 572-0826 and ask for Leonard.
I wish each and everyone of you the best in the
future.
culated , and a supporting petition with 50 signatures was
obtained . The letter emphatically and repeatedly de-
plored loss of Lewis as the conveniently local servicing
official for Council Bluffs members for more than the
past 7 years . The letter was promptly forwarded.
In the telephone conversation Mazza had assured that
he would dispatch an emissary to investigate the situa-
tion . In early July this was fulfilled , when International
Representative Terry Healey met with DeSantiago and
other members at Council Bluffs . Healey's explanation
that Lewis would remain as business agent for the locale
..on an unpaid volunteer basis" until reversion in Septem-
ber was tolerably received at the time . Meanwhile, other
dynamics caused International Representative Warren
Miller to also look into the closing. By letter dated July
27 he advised Mazza as follows:
The official decision to close Council Bluffs as a
branch is traceable to action of Respondent 's Executive
Board on June 9. According to minutes of the meeting
held this date, Leonard Schaefer reported in detail on
the financial burden of maintaining the branch , especially
with a greatly reduced number of dues-paying members
as compared with a peak about 20 years back . The exec-
utive board approved the closing in principle , and at its
subsequent meeting on July 14 ratified an entire cost-cut-
ting plan for the local which included a secretarial layoff
and pay reductions for remaining personnel . Another
economy decided on about this time was the layoff in
early July of Omaha-based Business Agent Dan Prouch-
nau to match the situation of Lewis.
In closing down the Council Bluffs branch Lewis
transmitted an existing out-of-work list to Henry Schae-
fer, who testified that over the balance of 1987 he and
other functionaries at the Omaha office added names of
Council Bluffs members in handwriting when they re-
quested a place . This practice terminated on January 4,
1988, when a consolidated out-of-work list for the entire
local was begun . A second document transferred to
Henry Schaefer by Lewis in June was the running job
referral record for Council Bluffs members organized by
contractor heading.
DeSantiago learned of the full impact from planned
economy measures on or about June 15,2 and on that
same day telephoned to Leonard Schaefer , Respondent's
Omaha-based business manager at the time and father of
Henry Schaefer . Leonard Schaefer advised him in this
telephone conversation that the local's finances would
not permit continued operation of the Council Bluffs
branch.
Not satisfied with this explanation , DeSantiago soon
telephoned Joseph Mazza, regional manager for the
International Union at Chicago . This official asked that
any complaint about the situation be put in writing. De-
Santiago achieved this by means of organizing a week-
end meeting , assisted in the process by fellow Council
Bluffs member Larry Colton, also a lifelong resident
there . At this gathering of several dozen Council Bluffs
members the draft of DeSantiago 's protest letter was cir-
2 On occasions in his testimony DeSantiago mistakenly recalled the
date of June 15, 1987, as being a Friday.
Relative to your memorandum dated July 1, 1987
in regards to the above , please be advised that I
conducted a preliminary investigation of the com-
plaints of the Council Bluffs, Iowa members of
Local 1140 . The closing of the Council Bluffs office
and the lay-off of the Business Agent occurred be-
cause of the financial condition of Local 1140, and
three weeks later another Business Agent in Omaha
was laid off due to the same conditions.
The complaint letter stated that there are 120
building trades laborers in Council Bluff,4act about
40, 60 industrial members, fact 38 , fact 3'3 retirees.
Omaha members being dispatched to jobs in Coun-
cil Bluffs instead of Council Bluffs members, fact (5)
five Omaha members dispatched to Council Bluffs
for an asbestos removal job, because Council Bluffs
members who were out of work did not have a li-
cense and certification.
The surplus money in the Holiday Trust Ac-
count , which is a joint Labor-Management Ac-
count . Management trustee are dragging their feet
as to ways to use this money.
Local 1140 does not own any property, the prop-
erty is owned by Construction Labors Building
Corporation, a non-profit organization.
Fact, Leonard Schaefer offered on June 12, 1987
to meet with Vino DeSantago , and any other mem-
bers at any time, or any place as to the reasons of
closing the Council Bluffs office and the lay off of
Larry Lewis, to which he has not received a re-
sponse.
The petition signed by members of Council Bluffs
was taken off job sites and at members homes, who
signed what they thought to be a petition to keep
Council Bluffs office open and did not know about
the contents of the letter.
Commencing on a Monday in mid-June, DeSantiago
was employed on a school job for ARC that lasted ap-
proximately 7 weeks. In the course of this time the job
superintendent requested him to contact the union hall
for additional employees . DeSantiago called Lewis on
the matter, who routinely assured that he would take
care of it . Soon after this Henry Schaefer telephoned to
the jobsite and it happened that DeSantiago answered
886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the call . He testified that when Henry Schaefer learned
he had reached DeSantiago directly he abruptly said,
"What the fuck you trying to do . . . about getting more
men." DeSantiago asserted that he answered by explain-
ing how his call had been made to Lewis because of an
understanding that Lewis remained , as a practical matter,
the business agent for Council Bluffs -side members. De-
Santiago testified that in Henry Schaefer 's further re-
marks to this explanation he said , "Fuck the Council
Bluffs members, and I can tell you that anybody who
signed the petition will not ever get out of the hall
again." Henry Schaefer recalled having conversation
with DeSantiago "once or twice" around the time that
Council Bluffs closing was an issue , however he denied
ever stating that Council Bluffs residents or petition-sign-
ers would be denied so referral for employment. Henry
Schaefer testified instead that his remarks were confined
to assuring that the closing would not mean Omaha
members would suddenly monopolize available jobs on
the Iowa side.
General Counsel also presented Council Bluffs member
Donald Jones as a witness . Jones corroborated DeSan-
tiago with respect to plans for how to use Lewis over
the summer months that Healey had projected. Jones
also testified that during July he had telephoned Re-
spondent's office inquiring about work prospects. This
contact resulted in conversation with business agent and
president (of the local Norman Sunderman , who after ex-
plaining that the field was "real slow" added that "Vino
[DeSantiago] should have come to me and got some
facts straight before he sent that letter to the Internation-
al," and that "he probably won't work out of this hall
again ." Sunderman completely denied such testimony of
Jones.
After layoff from the midsummer job with ARC, De-
Santiago was recalled to employment by Plibrico. He
had worked for this firm over an approximate 2-month
period early in 1987 at a jobsite of Iowa Power and
Light . The recall in late July was for only 2 weeks at
Griffin Pipe in Council Bluffs under Sinclair Scott, a
now-retired job foreman and superintendent for Plibrico.
This was followed almost immediately by short stints of
employment for Plibrico at Offutt Air Force Base and
Omaha Public Power District (OPPD), both in Nebras-
ka. The call for OPPD was from Scott directly, and for
what was to be possibly 3 days work for two laborers
starting September 9.
Colton was also called to this OPPD job, and DeSan-
tiago worked uneventfully with him on September 9.
DeSantiago testified that around morning breaktime on
September 10, Henry Schaefer and Prouchnau appeared
at the jobsite and attempted to speak confidentially with
Scott . 3 However , DeSantiago's duties kept him within
hearing range most of the time, and he testified to hear-
ing Henry Schaefer tell Scott that, referring to himself
and Colton , "These two men gotta go." DeSantiago re-
called how Scott protested on their behalf, but that
Henry Schaefer insisted on them being immediately re-
3 Henry Schaefer testified that although `officially on layoff ' Prouch-
nau was still instrumental in operating Respondent 's referral system
during September by coming in mornings.
placed "with two Omaha men" because "they live in
Council Bluffs" which is why they must "stay in Council
Bluffs." Both Colton and Scott corroborate the essentials
of this testimony , with Scott in particular testifying that
Henry Schaefer said the two he was after "don 't have a
right to work over here ." Additionally , Henry Schaefer's
insistence was that they leave the job by noon, and from
this both DeSantiago and Colton were paid off for the
half day while two Omaha-domiciled members of Re-
spondent were sent out in replacement . This conclusion
of the episode was also generally recounted by Ray
Otter, Plibrico's office manager to whom Scott had re-
ported the affair , and who had telephoned Henry Schae-
fer for any available clarification of the "problem" that
had arisen.
DeSantiago , Colton, and Jones all soon surfaced back
at the Iowa Power and Light job of Plibrico in Council
Bluffs, and while working there Jones had occasion to
report the employment to Henry Schaefer . While noth-
ing was said immediately , Jones testified that Lewis
called him back that same day, it now being on or about
September 17, to state that Sunderman had just attempt-
ed to have Lewis and other union functionaries run off
the members who had "hustled" their own job. In fact,
nothing more came of this apparent intention.
Henry Schaefer testified concerning his visit to the
OPPD jobsite on September 10. He characterized his
contact with Scott only as advice that the contractual
hiring hall provision had been "circumvent [ed]," and he
would like to see some action to cure the departure from
an employer 's obligation to give "proper notification" to
the Local of its call -back procedure.
C. Contentions
General Counsel contends that an unlawful breach of
Respondent 's fair representation duty has been shown
by; (1) discrimination based on members' protected in-
traunion activities , (2) discrimination on the arbitrary
basis of members' residency , (3) failure to provide mem-
bers with adequate notice that referral system rules had
been newly promulgated to be enforced , and (4) failure
to provide objective criteria in regard to requesting re-
moval of employees from a jobsite . Additionally, Gener-
al Counsel contends that utterances of Henry Schaefer
and Sunderman were, at the times and circumstances
about which credibly testified, independently violative of
Section 8(b)(1)(A).
Respondent contends primarily that on the evidence in
the record as a whole , the only showing is that of Re-
spondent attempting to have Plibrico comply with hiring
hall provisions set forth in the collective-bargaining
agreement. Respondent believes the real significance of
events on September 10 was that the employer 's agent
was informed only that neither individual in question had
a right to be working in Nebraska without clearance
through the Omaha hiring hall list . The denial of certain
attributed statements is pointed to as consistent with "no
action . . . ever taken" by an official of Respondent that
would be a refusal of employment referrals . Additionally,
Respondent alleges that both DeSantiago and Colton
were in violation of their membership duty and obliga-
LABORERS LOCAL 1140 (PLIBRICO SALES)
tion by reporting to work without notification to the
local or even going through its hiring hall.
D. Credibility
DeSantiago , Colton, and Jones were all candid-seem-
ing and possessed of convincing recollections. Witness
Jack DeVault, who attributed a statement of hostility
toward DeSantiago by Henry Schaefer during a conver-
sation at Respondent 's Omaha office in September, ap-
peared totally unbiased and honestly recounting what
was said to him. Scott was a particularly disinterested
witness, and this makes his impressively assured testimo-
ny even more vivid as he recalled being told to "let go"
both targeted employees when Henry Schaefer and
Prouchnau visited the jobsite together.
In contrast , Respondent 's chief witness Henry Schae-
fer did not present acceptable testimony. His version of
episodes , remarks and claimed utterances persuades me
to largely discredit him. There was little appearance of
truth or accuracy in Henry Schaefer's recollections, and
even his description of what he had said to Scott at the
jobsite on September 10 does not really fit Respondent's
contentions about this incident . I discredit Sunderman on
general grounds of demeanor , and particularly his re-
signed and weakly evasive explanations of various hiring
hall procedures, policies and practices.
E. Analysis
The Board has consistently guarded persons aspiring
to construction industry employment from arbitrary bars
to job opportunity or discrimination against them in the
operation of hiring halls. The phenomenon of an exclu-
sive hiring hall, as uncontestedly present here, has U.S.
Supreme Court approval where this servicing activity
does not accomplish any encouragement or discourage-
ment of union membership by discrimination . Teamsters
Local 357 v. NLRB, 365 U.S. 667 (1961). Consistent with
this rationale, it is settled that a labor organization vio-
lates both Section 8(b)(1)(A) and (2) of the Act where it
discriminatorily interferes with an individual's prospect
for working under an exclusive referral system. See
Plumbers Local 121, 223 NLRB 1250 (1976); Electrical
Workers 1BEW Local 675 (S & M Electric), 223 NLRB
1499 (1976); Teamsters Local 174 (Totem Beverages), 226
NLRB 690 (1976).
The Board has recently reiterated its view that oper-
ation of an exclusive hiring hall requires that the labor
organization having such dominion display a fair and im-
partial manner in representing all the individuals whose
employment hinges on utilization of that hall. Cell-Crete
Corp., 288 NLRB 262 (1988).
Here, the credited evidence first shows a specific dis-
criminatory intent being harbored by Respondent's rep-
resentatives . Letters written to International Union offi-
cial Mazza, the highly critical one from DeSantiago and
Miller's in complete contradiction , show a definite inten-
sity to the Council Bluffs dispute and fixedly opposing
viewpoints . The situation was not, as Sunderman assert-
ed, merely a "personal thing" between DeSantiago and
the Schaefers . Instead , there is adequate proof from
Henry Schaefer 's coarse and bellicose utterances made
887
by telephone to DeSantiago around July that his resent-
ment over this member's role in opposing the Council
Bluffs office closing would translate into banishment of
all such protesters from benefits of the hiring hall. The
fact that Sunderman , a closely positioned colleague of
Henry Schaefer at the Union 's Omaha office, made a
comparable intimation when conversing by telephone
around the same point in time with member Jones serves
to buttress this fundamental showing of unlawful animos-
ity awaiting some expression . Sheet Metal Workers Local
16 (Parker Sheet Metal), 275 NLRB 867 (1985).
The opportunity was presented in September at the
OPPD jobsite, and Henry Schaefer plainly fulfilled his
stated purpose by a direct demand against the neutral
employer that DeSantiago and his aligned coworker
Colton be immediately dismissed . Cf. Ohio Valley Carpen-
ters District Council (Catalytic, Inc.), 267 NLRB 1223
(1983). The act of causing or attempting to cause an em-
ployer to discriminate in a manner necessarily itself also
violative of Section 8(a)(3) of the Act is the exact con-
duct made unlawful under Section 8(b)(2). See Carpenters
Local 1016 (Bertram Construction), 272 NLRB 539
(1984).
Beyond this the alternate theory of an 8(b)(2) violation
is also shown . The contractual language applicable here
does not by any fair meaning of its words require notifi-
cation from either employer or employee when periodic
recalls of particular individuals are repeatedly made by
the same employer according to its random needs. Noth-
ing about DeSantiago 's 1987 employment history trig-
gered the "winter shutdown" language of article I,(5),e,
and overall passages of pertinent article I are structured
in such a way that sporadic recalls of persons familiar to
an employer operating in the area do not even necessari-
ly require notification to Respondent . Further, Respond-
ent's witnesses did not effectively clarify the distinction
in meaning or application of the 2-day notice feature
contained in subsection e of article I and the 24-hour
notice of subsection f. The entire notification topic
amounts to an unconvincing attempt at explaining away
Henry Schaefer's otherwise unlawful demand . See Oper-
ating Engineers Local 406 (Ford, Bacon & Davis Construc-
tion), 262 NLRB 50 (1982). Respondent's hiring hall
records, while better than fragmentary , are nonetheless
incomplete , irregular, and generally insufficient to estab-
lish any consistent requirement of notice to the Union's
office when job recalls were made within its territorial
jurisdiction but without reference to whether in Iowa or
Nebraska . Cf. Carpenters Local 316 (Bay Counties Con-
tractors), 291 NLRB 504 (1988). The point is best exem-
plified by Sunderman 's testimony in conceding, as he
did, that in the last analysis it was not always "necessari-
ly true" that a notification practice was common or was
enforced. This is an example of controlling doctrine that
policy or practice changes must be legitimate and appro-
priately communicated to users of the hiring hall. Cf.
Teamsters Local 519 (Rust Engineering), 276 NLRB 898
(1985). DeSantiago was a habitual user of the hiring hall,
both at the time Council Bluffs closed and when he rere-
gistered in December . For this reason it is unavailing to
argue, as Respondent does, that Scott's testimony of
888 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Henry Schaefer saying to him that the employees had no
right to work "over here" (Nebraska) was based on any
legitimate necessity of the Union as the law in this area
would require. Cf. Painters Local 1555 (Alaska Construc-
tors), 241 NLRB 741 (1979). It is instead the case that
this conduct by Respondent' s agent was simply "palpa-
bly arbitrary." Cell-Crete Corp., supra.
A final element of the amended complaint is its allega-
tion that Henry Schaefer, while at his Omaha office, told
employee DeVault that he had run Council Bluffs resi-
dents off their jobs in Nebraska. This allegation is satis-
factorily proven by DeVault's credible testimony, and it
constitutes a separate , independent violation of Section
8(b)(1)(A).
CONCLUSIONS OF LAW
1. Plibrico Sales & Service Co., Inc. is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Laborers' International Union of North America,
Local No. 1140 is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By causing or attempting to cause the discharge of
DeSantiago and Colton, Respondent violated Section
8(b)(1)(A) and (2) of the Act.
4. By maintaining and operating its exclusive hiring
hall in a discriminatory manner, Respondent violated
Section 8(b)(1)(A) and (2) of the Act.
5. By informing employees that they are objects of ret-
ribution in the operation of an exclusive hiring hall and
referral system because they are in disfavor with Re-
spondent, it coerced and restrained employees, members,
job applicants, or registrants in violation of Section
8(b)(1)(A) of the Act.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Re-
spondent to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of
the Act.
Because Respondent unlawfully caused the discharge
of DeSantiago and Colton, I shall recommend that Re-
spondent be required to make them whole for any loss of
earnings they may have suffered. Respondent's backpay
liability shall be computed in accordance with the formu-
la set forth in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest thereon to be computed in the
manner prescribed by New Horizons for the Retarded, 283
NLRB 1173 (1987).
Disposition
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed4
4 If no exceptions are filed as provided by Sec . 102.46 of the Board's
Rules and Regulations , the findings, conclusions , and recommended
Order shall , as provided in Sec . 102.48 of the Rules , be adopted by the
ORDER
The Respondent, Laborers' International Union of
North America, Local No. 1140, its officers, agents, and
representatives, shall
1. Cease and desist from
(a) Causing or attempting to cause Plibrico Sales &
Service Co., Inc., or any other employer, to unlawfully
discriminate against Savino DeSantiago and Larry
Colton, or any other individual, because that person is in
disfavor with Respondent.
(b) Operating its exclusive hiring hall in a discrimina-
tory manner.
(c) Informing employees that they are objects of retri-
bution in the operation of an exclusive hiring hall and re-
ferral system because they are in disfavor.
(d) In any like or related manner restraining or coerc-
ing employees in the exercise of rights guaranteed to
them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Operate its exclusive hiring hall in a nondiscrimina-
tory manner.
(b) Make whole Savino DeSantiago and Larry Colton,
who were unlawfully discharged, for any loss of earnings
they suffered, in the manner set forth in the remedy sec-
tion of this decision.
(c) Preserve and, on request, make available to the
Board or its agents, for examination and copying, all
records pertaining to employment through its hiring hall,
and all records relevant and necessary for compliance
with the terms of this Order.
(d) Notify Plibrico Sales & Service Co., Inc., in writ-
ing, with a copy to Savino DeSantiago and Larry
Colton, that it has no objection to their employment.
(e) Post at all its business offices, hiring halls, and
meeting places copies of the attached notice marked
"Appendix."5 Copies of said notice, on forms provided
by the Regional Director for Region 17, after being duly
signed by an authorized representative, shall be posted
by the Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where no-
tices to members are customarily posted. Reasonable
steps shall be taken by Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material.
(f) Forward to the Regional Director signed copies of
the notice for posting by Plibrico Sales & Service Co.,
Inc., at its Nebraska and Iowa offices and jobsites, if it is
willing.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
Board and all objections to them shall be deemed waived for all pur-
poses.
5 If 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 Nation-
al 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."