Laborers, Local 394

National Labor Relations Board - Board Decisions

Jan 4, 1980

247 N.L.R.B. 97 (N.L.R.B. 1980)

LABORERS, LOCAL 394
Local 394, Laborers' International Union of North
America, AFL-CIO and Wakil Abdunafi and
Building Contractors Association of New Jersey,
Party to the Contract. Case 22-CB-3003
January 4, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On March 16, 1979, Administrative Law Judge
William F. Jacobs issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, the General Counsel filed
exceptions and a supporting brief, and the Charging
Party filed an answering brief to Respondent's excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Local
394, Laborers' International Union of North America,
AFL-CIO, Elizabeth, New Jersey, its officers, agents,
and representatives, shall take the action set forth in
the said recommended Order, as so modified:
1. Substitute the following for paragraph l(d):
"(d) In any like or related manner restraining or
coercing employees or applicants for employment in
the exercise of the rights guaranteed them by Section 7
of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
In addition, Respondent contends that the Administrative Law Judge's
credibility resolutions, factual findings, and legal conclusions are the result of
bias. After a careful examination of the entire record, we are satisfied that this
allegation is without merit. There is no basis for finding that bias and
247 NLRB No. 5
partiality existed merely because the Administrative Law Judge resolved
important factual conflicts in favor of the General Counsel's witnesses. As the
Supreme Court stated in N.LR.B. v. Pittsburgh Steamship Company. 337 U.S.
656, 659 (1949), "[T]otal rejection of an opposed view cannot of itself impugn
the integrity or competence of a trier of fact."
In adopting the Administrative Law Judge's Decision in this case, we do
not rely upon his statement in the penultimate paragraph of sec. II111, B, 2, (a),
that Respondent's failure to keep written records concerning the operation of
its exclusive hiring hall constitutes a per se violation of Sec. 8(bX I XA) and (2)
of the Act. Rather, we find that Respondent violated Sec. 8(bXIXA) and (2)
of the Act by operating its exclusive hiring hall without any objective criteria
or standards for the referral of employees. In finding the violation, one of the
factors we rely upon is that Respondent used no written standards or rules for
referrals, thus leaving the operation of its hiring hall within the unbridled
discretion of a few union officials; however, this is merely one of several
factors which we evaluated in determining whether or not objective standards
had been used. While written rules or standards for the referral of employees
and written records showing the actual referrals made are certainly relevant
evidence as to whether Respondent used objective standards, it is conceivable
that a union could prove by means of other evidence that it had consistently
used objective standards for the referral of employees without having
established any written rules or kept any written records. Therefore, we would
not find that a union's failure to keep written records or to use written rules in
referring employees would, standing alone, constitute a violation of Sec.
8(bXIXA) and (2) of the Act. See Local Union No. 174. International
Brotherhood of Teamsters, Chauffeurs. Warehousemen and Helpers of Ameri-
ca. Independent (Totem Beverages Inc.). 226 NLRB 690, 700 (1976).
' Respondent has excepted to the Administrative Law Judge's use of the
broad cease-and-desist language in his recommended Order. For the reasons
set forth in Hickmott Foods Inc., 242 NLRB 1357 (1979), we find that a broad
order is unwarranted under the facts of this case. Accordingly, we shall
modify the Administrative Law Judge's recommended Order by inserting the
narrow "in any like or related manner" remedial language.
As noted above, we do not find that Respondent's failure to maintain
written standards and records concerning the operation of its hiring hall,
standing alone, constitutes a violation of Sec. 8(bXIXA) and (2) of the Act.
We do, however, agree with the provisions in the Administrative Law Judge's
recommended Order requiring Respondent to maintain comprehensive
records in the future concerning the operation of its hiring hall for remedial
purposes.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportuni-
ty to present evidence and cross-examine witnesses,
the National Labor Relations Board has found that we
violated the National Labor Relations Act, as amend-
ed, and has ordered us to post this notice. We intend
to abide by the following:
WE WILL NOT maintain and operate our
exclusive job-referral system without the use of
objective criteria or standards or in a discrimina-
tory manner.
WE WILL NOT discriminatorily fail or refuse to
refer Wakil Abdunafi or Adolph Farmer to jobs
through our exclusive job-referral system.
WE WILL NOT in any like or related manner
restrain or coerce employees or applicants for
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL make whole Wakil Abdunafi and
Adolph Farmer for any loss of earnings suffered
as a result of our discrimination against them,
with interest.
WE WILL maintain and operate our exclusive
job-referral system in a nondiscriminatory man-
ner based upon objective criteria or standards.
WE WILL initiate and maintain a comprehen-
sive recordkeeping system which will fully dis-
close the basis upon which each referral is made,
and make such records available to job applicants
to enable them to determine for themselves that
their referral rights are protected and that refer-
rals are made in a fair and impartial manner.
LOCAL 394, LABORERS' INTERNATIONAL
UNION OF NORTH AMERICA, AFL-CIO
DECISION
STATEMENT OF THE CASE
WILLIAM F. JACOBS, Administrative Law Judge: This
case was heard before me on December 8, 1977, and January
8-11, 18-19, and 26-27, 1978, in Newark, New Jersey. The
charge was filed by Wakil Abdunafi, an individual, on July
1, 1975. The complaint issued January 14, 1977, alleging
that Local 394, Laborers' International Union of North
America, AFL-CIO, herein called the Union or Respondent
Union, violated Section 8(b)(1)(A) and (2) of the National
Labor Relations Act, as amended, by referring job appli-
cants solely on the basis of subjective, irrelevant, unfair, and
invidious standards and criteria, and by failing and refusing
to refer Wakil Abdunafi and Adolph Farmer for employ-
ment through the operation of its exclusive hiring hall
because they engaged in intraunion activities in opposition to
the Union's leadership, and in retaliation for their having
filed charges and given testimony under the Act. In its
answer,' the Union admitted certain of the allegations
contained in the complaint but denied that it engaged in the
alleged unfair labor practices
Representatives of all parties were present and were given
full opportunity to participate in the hearing. Briefs were
subsequently filed by Respondent and the General Counsel.
Based upon the entire record, including my observation of
the witnesses, and after due consideration of oral argument
and briefs submitted, I make the following:
FINDINGS OF FACT
I. JURISDICTION
New Jersey and its member-employers likewise engaged in
the building and construction industry in the State of New
Jersey and in other States of the United States. During the
12-month period immediately preceding the issuance of the
complaint, member-employers of the BCA provided and
performed building and construction services valued in
excess of $50,000 outside the State of New Jersey and
received, for use at their New Jersey jobsites, during the
same period of time, materials valued in excess of $50,000
from outside New Jersey. The complaint alleges, the answer
admits,2 and I find that BCA is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that
the Union is, and has been at all material times herein, a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. Issues
The issues, as well framed by the allegations of the
complaint and answers thereto, are as follows:
1. Whether the Union maintained and operated on behalf
of the employer-members of BCA an exclusive job referral
system whereby all laborers to be employed by employer-
members at construction sites located within the Union's
jurisdiction must be referred to them by the Union.
2. Whether, granting the Union maintained and operated
such an exclusive job referral system, it selected for referral
and referred applicants for jobs solely on the basis of
subjective, irrelevant, unfair, and invidious standards and
criteria without the use of any objective criteria such as
records, lists, or rosters, and whether the sole use of
subjective criteria is per se violative of the Union's duty to
treat job applicants fairly and impartially.
3. Whether the Union has failed and refused to refer
Wakil Abdunafi to jobs through its exclusive hiring hall in
retaliation for his engaging in protected concerted activities,
including his having filed internal charges against the
Union's leadership and charges with the National Labor
Relations Board and the Equal Employment Opportunity
Commission, in violation of Section 8(b)(1)(A) and (2) of the
Act.
4. Whether the Union has failed and refused to refer
Adolph Farmer to jobs through its hiring hall in retaliation
for similar activities.
B. Facts
1. The exclusive hiring hall arrangement
Building Construction Association of New Jersey (BCA)
is a corporation duly organized under the laws of the State of
New Jersey, with its principal offices located in the State of
' The answer was amended at the hearing in order to admit certain
allegations relating to jurisdiction and agency.
The Union operates a hiring hall in Elizabeth, New Jersey,
from which it refers applicants for employment as laborers
to contractors, including contractors who are members of
A motion to amend the answer to admit the allegations dealing with
jurisdiction was granted during the hearing.
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LABORERS, LOCAL 394
the Building Contractors Association of New Jersey. The
General Counsel contends that, although the contract
between the Union and the BCA does not contain provisions
for an exclusive hiring hall referral system, the Union at its
Elizabeth, New Jersey, location operates or practices an
exclusive hiring hall arrangement. The Union denies this
allegation.
In support of the exclusive hiring hall allegation, the
General Counsel produced numerous witnesses, including
members of the Union and contractors familiar with the
means by which individuals are referred to jobs. Thus,
Resbeth "Nick" Farmer,' a member of the Union for 22
years, who has worked on various construction sites as
laborer, steward, and foreman, testified as to how hiring was
and is done. He stated that when laborers are needed on a
job, the foreman tells the steward, who then calls the union
hall and advises John Riggi, the business manager,' as to the
number of laborers needed, as well as any special qualifica-
tions, if any, which may be required of them. Riggi, or in his
absence one of his two assistants, then gives any individual
he chooses referral slips and sends them to the jobsite where
they are hired. Nick Farmer testified that there is no way an
individual can obtain work as a laborer in the Union's
jurisdiction unless he obtains referral from the Union. Even
casually employed summer students must have referral slips
and be referred through the Union's hiring hall if they hope
to obtain employment. Farmer further stated that if a
stranger should come to the work site and ask the steward
for work without first obtaining a referral slip, Farmer
would have to call Riggi and obtain permission for the man
to work before employing him. Farmer, who has been
working steadily over the past several years as a laborer,
steward, or foreman, got each job only after first obtaining a
referral slip through the union hall, and in his 22 years as a
laborer he never obtained work without first receiving
approval from the hall. While employed as a steward during
this time, Farmer has had frequent occasion to help friends
and relatives obtain employment by asking Riggi's permis-
sion for them to work. If Riggi gave his permission, they
obtained employment. Through all of the years that Nick
Farmer has been employed in the laboring field he never
once attempted to place any person on a job without first
obtaining Riggi's permission, and it was his understanding
that this was the procedure that had to be followed.
Ernest Gissendaner, a construction worker and member of
the Union for 16 or 17 years, testified that the procedure
followed to obtain employment consists of reporting to the
union hiring hall early in the morning (shaping up) and
waiting for jobs to be called in from contractors. When a job
is called in, it is received in the office by Business Manager
Riggi or one of his assistants, who then comes out into the
hall and calls the name of, or points to, the man to whom he
chooses to give the job. That man then goes into the office,
where he is given a referral card to the job. Gissendaner
testified that he never, in his 16 or 17 years as a union
member, or otherwise, went to a job without a referral card
or without first going through the hiring hall procedure, as
herein described.
'Hereafter sometimes referred to as Nick Farmer.
Renious Edwards, a laborer and member of the Union for
30 years, has worked regularly as a laborer, steward, and
foreman over this period of time. Edwards testified that in
order to get a job, an individual must first go to the union
hall and obtain a referral slip from Riggi. No one has ever
come onto one of Edwards' jobs without a referral from the
Union, and in the 30 years that he has been a laborer, he has
never gotten a job as a laborer in the Union's jurisdiction
without first being cleared through the Union's hiring hall.
Similarly, Edwards testified that it is Riggi who appoints
stewards. When acting as steward on jobs in the past,
Edwards has requested permission from Riggi to allow
certain individuals to come on the job and his requests have
been granted. Conversely, Edwards has obtained employ-
ment by having other stewards request permission of Riggi
to let Edwards go to work.
Jonathan Ruth, a member of the Union for 21 years, has
served as shop steward a number of times. He testified that
to get a job in the Union's jurisdiction as a laborer, one must
first obtain a referral slip from the business manager
showing Riggi's permission. For 21 years, according to
Ruth, he has obtained employment via this procedure and
stated categorically that unless this procedure is followed a
man cannot get a job.
Leo Charles, a construction worker and member of the
Union since 1951, testified that to obtain employment he
reports to the Union's hiring hall in the morning, and, when
a job comes in, the business agent calls him into the office,
gives him a referral slip, and sends him to the job. During
the past 5 years he has worked fairly regularly, mostly as
steward. As steward, one of his duties is to check the people
working on the job. He testified that no one works without a
referral slip, including himself.
Similarly, testimony was adduced by the General Counsel
through numerous other witnesses reflecting the complete
control of job referrals by the Union through its business
manager. The alleged discriminatees, Wakil Abdunafi and
Adolph Farmer, testified at length on the subject. Adolph
Farmer, a construction worker and member of the Union for
30 years, described how, in order to get a job, a laborer must
ordinarily report to the hiring hall to shape up. There he
waits until Riggi comes out of his office and picks him to go
to whatever job is available. If a particular individual is
chosen by Riggi, he is called into the office where he is given
a referral slip. Farmer testified, as did the other witnesses,
that when he served as steward or foreman on the job, he
would permit no one to work on that job who did not have a
referral slip. In 30 years, he never got a job without a referral
slip and he credibly testified that he knew no one who did.
As steward, however, he has, upon occasion, asked Riggi for
permission to bring a friend or relative on the job and,
provided Riggi granted the request, that individual could
work. Abdunafi supported the testimony of the other
witnesses by stating that a man could not get a job merely by
appearing at a jobsite and asking for work but had to have a
referral slip from the business manager. Moreover, Abdunafi
stated that he had tried to obtain jobs without going through
' Throughout all material times Riggi held this office.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the hiring hall procedure but was told at the site that he had
to go through the hall.' He testified that it was, however,
possible for a steward to help an individual obtain employ-
ment by going to the business manager and requesting
permission for that employee to go to work.
In addition to numerous individuals employed as laborers,
the General Counsel also called as witnesses a number of
contractors to testify concerning the hiring procedures as
practiced within the Union's jurisdiction. Thus, Joseph F.
Fox, then project manager for the Brisco-Arace-Cunder job,
testified that when his company decides that it requires
additional laborers, it first determines the number and type
needed and then assigns to its foreman the job of procuring
the required help. The foreman then advises the steward of
the company's needs and the steward obtains the required
number and type of laborers through the Union's hiring hall.
Sometimes the foreman calls the union hall directly. Fox
stated that the company never hires laborers off the street
but only through the union hall.
Clifford S. Stuart, Jr., vice president of Kramer Gunite,
Inc., was called by the General Counsel and testified that, to
obtain laborers within the union's jurisdiction, he requests
additional people through the steward. He stated that the
union hall is his only source of laborers and that the
company will not hire off the street. Even when the company
brings its regular, steady laborer employees to work within
the jurisdiction of the Union, they are first cleared through
the union hall. Over and above this nucleus of regular
employees, the company goes through the union hall for
additional help.
Albin F. Hook, superintendent for Wilhems Construction
Company, testified that in order to obtain laborers, he calls
the Union's hiring hall and speaks with Riggi or another
officer of the Union and requests the number and type of
men he needs for the job. Later, the requested employees
show up at the job with referral slips and present themselves
to the steward. If an individual independently applies for
work as a laborer at a jobsite within the Union's jurisdiction,
he is not hired but is referred to the union hall. Even in cases
of emergency, at night or over the weekend, if Hook finds
himself suddenly short of laborers, he calls Riggi at home to
have laborers sent to the jobsite. On these occasions, too,
Riggi sends out the required help.
As herein noted, the General Counsel called numerous
members of the Union as well as contractors to support its
contention that the Union operated an exclusive hiring hall
referral system. Respondent on the other hand did not
present a single member witness to testify that he had
obtained employment as a laborer within the Union's
jurisdiction without either going through the hiring hall or
obtaining the permission of the business manager. I conclude
that there were no witnesses available who could truthfully
offer such testimony. On the contrary, John Riggi himself
admitted that if a person wants to work as a laborer within
the jurisdiction of the Union, Riggi would know it because
that person would not get a job unless he goes to the hall or
checks with Riggi first. Riggi's assistant, John Corsentino,
also supported the General Counsel's case in this area when
he testified that when a man is referred out to a job on which
' Documentary evidence in the record supports Abdunafi's testimony.
As noted above, John Corsentino, Riggi's assistant, testified that even
he is steward, the man must have a referral slip before he is
permitted to work, and even regular employees of companies
coming into the area must be cleared by the Union before
the company calls them into the area to work on the job.
Unlike the General Counsel, Respondent did not call any
contractors to testify that they were free to hire laborers off
the street or from other sources to work at jobsites within
the jurisdiction of the Union. From Respondent's failure to
do so, I must conclude that no witnesses were available who
could truthfully testify that they were free to obtain laborers
from sources other than the Union for work at jobsites
located within the Union's jurisdiction. Though Respondent
called no witnesses of its own for this purpose, counsel for
Respondent thoroughly cross-examined the General Coun-
sel's contractor witnesses and adduced certain testimony on
the subject. Thus, Joseph Fox testified that in addition to
laborers referred by the Union, his company also employs
laborers who are members of a sister local, Local 472,
located in Essex County. However, Local 472 members are
heavy construction laborers, rather than building trades
laborers as are the members of Respondent Union. Fox
admitted that Local 472 laborers are hired through Local
472 rather than through Respondent Union. Moreover,
when work at the construction site is claimed by both
Respondent Union and Local 472, arrangements are worked
out. If jurisdiction over the work is clearly that of one or the
other of the two unions, employees are assigned to do the
work who have been referred by the local which has
jurisdiction over that particular work.
Other apparent exceptions to the exclusive referral system
as practiced by Respondent Union, as adduced through the
testimony of Joseph Fox, concerns the practice of Fox's
company of bringing into the Union's geographical jurisdic-
tion laborers from other locals whom the company has
requested by name and who are apparently considered
regular employees of the company.' But inasmuch as
members of Local 472 and of other locals outside the
geographical jurisdiction of Respondent Union are, accord-
ing to Fox, obtained through their respective locals, this
practice does not bear on the question of the existence of an
exclusive referral system arrangement at Respondent
Union's hiring hall, since the tacit agreement whereby
Respondent Union recognizes the right of contractors to
bring into the Union's geographical jurisdiction a certain
number of outside laborers, regular or otherwise, does not, at
least in this case, directly affect the rights of the individuals
to obtain fair and impartial treatment within the jurisdiction
of the Union, for the Union clearly has no control over the
system of referrals utilized at other hiring halls in other
jurisdictions.
Finally, Fox testified that occasionally he has hired
college students without first going through the Union.
These were summer employees, college students who were
friends of Union members or company officials or supervi-
sors and who were hired for short periods of time as favors
to these individuals. However, inasmuch as the Union had
four foreman in addition to stewards representing its interest
on the Brisco-Arace-Cunder job concerning which Fox
testified, these apparent exceptions to the otherwise exclu-
regular employees must be cleared by the Union before being permitted to
come into Respondent Union's jurisdiction to work.
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LABORERS, LOCAL 394
sive referral system clearly had the tacit, if not the expressed,
consent of the Union, and do not undermine the otherwise
overwhelming evidence that the Union did, as alleged,
operate an exclusive hiring hall and referral system.
Clifford Stuart, Jr., also testified that his company
similarly employed laborers within the Union's jurisdiction
who were obtained from other laborers' locals. These are his
regular employees-the nucleus of his operation. According
to Stuart, his regular employees clear through the local
business agent when they come into the Union's jurisdiction.
Like Fox, Stuart testified that occasionally his company
hires individuals within the jurisdiction of the Union without
going through the Union-these are part-time employees
hired for a day or two, a nephew or son of the superinten-
dent or of the local police chief, hired as a favor to the
person involved. However, individuals working for any
longer period of time apparently must follow the usual
procedure.' For reasons stated earlier with respect to the
Brisco-Arace-Cunder job, these exceptional 1- or 2-day
favor-hirings do not affect my finding of the existence of an
exclusive hiring arrangement.
In summary, I find that the Union operated an exclusive
hiring hall as alleged in the complaint. Though the current
contract does not provide for or establish an exclusive hiring
hall, in practice that is the type of arrangement under which
the parties have operated and still operate,' and the fact that
there may have been some infrequent and very special
exceptions to the exclusivity of the arrangement does not
adversely affect the finding herein under the total circum-
stances considered.
2. Referrals based upon solely subjective criteria
a. Prior to September 1977
The General Counsel contends and indeed the complaint
alleges that the Union has, in the operation of its exclusive
hiring hall, selected for referral and referred applicants for
employment entirely subjective criteria and thereby violated
its duty, as the representative of all employees and applicants
for employment, to represent all of them fairly. The Union,
via stipulation at the hearing admits that its business
manager, John Riggi, utilized subjective criteria in deciding
which applicants for employment should be referred to
which jobs.
The General Counsel presented a number of witnesses
who testified to the fact that Riggi used subjective criteria in
deciding who should be referred to jobs. Thus, Wakil
Abdunafi, a member of the Union for 9 years, testified that
Riggi simply chose whomever he wished to work at a given
time and referred him to a job by handing him a referral slip.
He noted that it did not matter what time the individual
arrived at the hiring hall and that time of arrival was not a
factor in Riggi's decision to send a man to work. Prior to
September 1977,' no one signed in at the hall. Further,
Abdunafi stated that no standards or guides were utilized by
the business manager or his assistants to help them choose
' Two sons of a foreman brought up from Philadelphia to work as laborers
within the Union's jurisdiction later became members of the local.
Local Union No. 174. International Brotherhood of Teamsters Chauffeurs
Warehousemen and Helpers of America, Independent (Totem Beverages. Inc.).
226 NLRB 690 (1976); Castleman and Bates. Inc. 200 NLRB 477. 482 (1972).
one applicant over another, nor were any records kept which
would enable these union officers to determine who had been
referred out in the past and perhaps thereby enable them to
choose, on the basis of previous hours worked, who should,
in fairness, get the next available job.
Adolph Farmer similarly testified that he knew of no
standards by which Riggi and his assistants were guided in
choosing applicants for referral; none were posted. During
Adolph Farmer's testimony a stipulation was received into
the record that, indeed, no records were kept at the hall to
show either where applicants had been referred on a given
day or what jobs were available for bidding or for referral.
The testimony of Abdunafi and Adolph Farmer was
supported affirmatively, in part or in rorto, by all of the
General Counsel's witnesses that testified regarding the
subject. No one disputed their testimony concerning the lack
of written standards or records.
In summary, if the General Counsel's witnesses cannot be
said to have adequately testified affirmatively that solely
subjective criteria were used, it can safely be concluded that
any objective criteria upon which choices for referral could
be made were entirely absent. Thus, reporting time at the
hall was not considered of importance for no sign-in sheet
was in use, and it was credibly testified to that reporting time
was clearly not a visible consideration in Riggi's decision as
to his choice for referral to specific jobs. Likewise, since no
written records were kept indicating who had been referred
to what jobs in the past, and no records kept as to future
available jobs and possible referrals, no apparent objective
attempt was being made to distribute jobs either by number
or by hours in such a manner as to insure a fair and
impartial distribution of available work. Riggi's testimony
concerning his keeping such information in his head is
rejected in light of the number of applicants, jobs, and hours
of which he would have had to keep mental records over the
period of years in question.
The Union, in addition to admitting that no standards,
written guidelines, or records of the type discussed supra
were kept, further admits, in keeping with the allegation
contained in the complaint, that subjective criteria were the
basis upon which the Union made its referrals, and moreover
contends that the use of such subjective criteria isC"oth
proper and desirable under the circumstances. In support of
this contention, the Union relies primarily on the testimony
of John Riggi, who described the referral procedure as well
as the subjective basis upon which he ostensibly relied in
deciding which applicants should be referred to the jobs
available. Riggi testified that contractors, through their
superintendent or the foreman or steward on the job, would
call the hiring hall to request the Union to send out a certain
number of men, sometimes particular types of workmen.'"
When Riggi received these calls he would look out into the
hall to see if there were any men present who could do the
job which was to be filled. If such a man were present in the
hall at the time, Riggi would call him in, hand him a referral
slip and send him to the job. In determining which
individual best fit the requirements of the job, Riggi testified
' Certain reforms were undertaken in the referral system in September 1977
which will be treated separately, infra.
'o Riggi also received information as to possible future jobs through the use
of Dodge Reports and through attendance at prejob conferences with
contractors.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he used certain subjective criteria. First, he considered
the ability of the individual to do the work involved. Riggi
testified that he knew which of the people at the hall could
rig a scaffold, operate a forklift, power buggy, or jackham-
mer or work with concrete. Riggi emphasized that it was
important that men capable of performing such functions
were sent to the job rather than men "off the street" because
"there's a lot of human lives at stake here." A second basis
for choosing a particular workman for a job, according to
Riggi, was the consideration of the status of the workman's
situation with regard to the Welfare and Pension Funds. To
remain qualified for welfare and pension benefits, a member
must work a certain number of hours, making the necessary
contribution to these funds. If a particular member were in
danger of falling in arrears in his payments, Riggi would give
some consideration to this fact when making referrals.
Finally, Riggi testified, he gave consideration to an individu-
al's financial condition when making referrals. Thus, if an
individual should approach Riggi and advise him that he
was in a financial bind, that a mortgage payment was due,
that he needed something for his kids, or that he had a
doctor bill to pay, Riggi would give weight to such matters
in determining who should be referred."
Respondent takes the position that the use of such
paternalistic considerations in making referrals is not only
lawful, but, when properly administered in a nondiscrimina-
tory manner, is even desirable. The General Counsel
counters that the use of subjective criteria such as those
described herein places tremendous power in the hands of
the single individual making the decisions, such as to
necessarily have "a significant impact on the membership as
they realize what the consequences are of falling into
disfavor with Riggi." The General Counsel'2 correctly points
out that Riggi decides himself whether a man has the
necessary qualifications to do a particular kind of job and
personally decides whether an individual's adverse financial
condition is difficult enough to warrant special consideration
in determining whether he or someone else should be
referred to a particular job. Discriminatory motivation aside,
the General Counsel argues that Riggi is in no position to
make the decisions he does on the basis of the subjective
criteria he utilizes because he does not spend that much time
at the work sites and does not actually know how capable
the individuals he sends out to the jobs are. He may, as he
testified, know the capabilities of the "old timers," but he
admittedly does not know the abilities of the younger men,
much less those of the nonmembers who may utilize the
hall's services sporadically or for the first time. Clearly, if
prospective applicants know that Riggi chooses individuals
for referral, not on the basis of the man's actual abilities, but
rather on the basis of how long and how well Riggi has been
acquainted with a man, it would follow that such prospective
applicants would consider it worthwhile not only to be a
member in good standing of the Union but, above all, a
friend of Riggi. Thus, assuming, arguendo, as General
Counsel argues, that Riggi chooses individuals for referral
on the basis of how long and well he has known them and,
" As will be shown infra, Riggi gave no consideration to pension and
welfare payments or financial insecurity where Abdunafi was concerned,
though Abdunafi's financial problems-including his having been evicted
from his home-were well known throughout the Local.
rightly or wrongly, assumes on the basis of his acquaintance
that the "old timers" are better workmen than the younger
union members or "off the street" applicants, the General
Counsel's logic does not appear faulty that it would tend to
drive individuals to curry favor with the business manager
and to join and become members in good standing in the
Union. The result would be, necessarily, enhancement of
Riggi's and the Union's power." But, again, assuming that a
business agent uses the criterion of "capacity to do the job"
in referring individuals, making frequent visits to the
worksites and eyewitness observations of individuals actually
performing tasks, thereafter making nondiscriminatory re-
ferrals on the basis of the knowledge he obtains from these
observations, such referrals would still be subjective in that
the business agent makes his determination subject to his
own perceptions of individuals at the jobsites. But are we to
reject this kind of expertise simply because the process is
open to possible abuse? Or is it the better course to permit
the use of subjective criteria in referrals and question only
those cases where abuses occur, where discriminatory
motivation or invidious considerations appear to have
tainted the fair and impartial character of the system, be it
based upon subjective criteria or otherwise?
Further, the General Counsel also attacks the Union's,
that is Riggi's, utilization of such subjective considerations
as an individual's financial condition as a basis for determin-
ing whether or not a specific individual should be referred to
a particular job rather than someone else. The theory is, of
course, that if the Union, through Riggi, chooses to aid one
individual rather than another because the former is more in
need than the latter, the result would again be to encourage
union membership. Showing favoritism toward those indi-
viduals who cannot pay their mortgage or medical bills or
are about to lose their welfare or pension benefits surely
encourages those individuals to be loyal to the Union; but, as
stated in Local 357, Teamsters, supra at 675:
It may be that the very existence of the hiring hall
encourages union membership. We may assume that it
does. The very existence of the union has the same
influence. When a union engages in collective bargain-
ing and obtains increased wages and improved working
conditions, its prestige doubtless rises and, one may
assume, more workers are drawn to it. When a union
negotiates collective bargaining agreements that include
arbitration clauses and supervises the functioning of
those provisions so as to get equitable adjustments of
grievances, union membership may also be encouraged.
The truth is that the union is a service agency that
probably encourages membership whenever it does its
job well. But, as we said in Radio Officers v. Labor
Board, supra, the only encouragement or discourage-
ment of union membership banned by the Act is that
which is "accomplished by discrimination."
So, applying the Court's rationale to the instant case, one
can reasonably conclude that although referring individuals
on the subjective basis of financial need will likely result in
those individuals so aided being more inclined to favor the
': G.C. br., p. 35.
" Local 357, International Brotherhood of Teamsters. Chauffeurs Ware-
housemen and Helpers of America Los Angeles-Seattle Motor Express] v.
N.L.R.B., 365 U.S. 667, 671 (1961).
102
LABORERS, LOCAL 394
Union, this does not appear to be necessarily violative of the
Act for it is not, in and of itself, discriminatory in nature.
The record indicates that a certain factionalism has
manifested itself among the rank and file of individuals
utilizing the services of the hiring hall. Quite clearly a
number of individuals find the current union leadership
lacking in many ways. Others, however, have shown fierce
loyalty to Riggi and his assistants. No doubt a number of the
latter approve of the use of such subjective criteria as
financial need as one basis for making referrals, and who can
say it is wrong to award jobs to those who need them most?
Perhaps, by the nature of things, those who are most friendly
with the union hierarchy, Riggi in particular, are most likely
to confide in him that they are in particular need of work,
while those who have found grounds for disagreement will
choose, for one reason or another, not to approach him for
special consideration. But granted that this is, perhaps, the
situation that exists, should a decision be rendered that a
union may not choose to refer out one man before another
because the former is under greater economic stress than the
latter? Should there be a blanket ruling that no such
subjective considerations be entertained? I think not, for the
Supreme Court has held that:
Where, as here, Congress has aimed its sanctions only
at specific discriminatory practices, the Board cannot
go further and establish a broader, more pervasive
regulatory scheme."
It would thus appear that the Board may not ban the use of
all subjective criteria in determining order of referral as long
as those criteria are nondiscriminatory. However, above and
beyond the Supreme Court's apparent proscription that the
Board has not been empowered to establish specific criteria
for the "proper" running of a hiring hall, there is also the
philosophical/legal consideration enunciated by Justice Har-
lan in the cited case (at 680):
A union . . . is privileged to make decisions which are
reasonably calculated to further the welfare of all the
employees it represents, nonunion as well as union, even
though a foreseeable result of the decision may be to
encourage union membership.
This Court's interpretation of the relevant statutory
provisions has recognized that Congress did not mean
to limit the range of either employer or union decision
to those possible actions which had no foreseeable
tendency to encourage or discourage union membership
or concerted activities. In general, this Court has
assumed that a finding of a violation of Section 8(aX3)
or 8(b)(2) requires an affirmative showing of a motiva-
tion of encouraging or discouraging union status or
activity.
I would find that the subjective criteria utilized in part by
Riggi in making certain referrals, such as his own personal
educated view of an individual's capacity to do certain types
of work and an individual's financial condition, do not
necessarily reflect discriminatory motivation and, unless
"Local 357. Teamsters supra at 676.
" Local Na 324. International Union of Operating Engineers AFL-CIO
(Michigan Chapter. Associated General Contractors of America. Inc.), 226
NLRB 587, 595 (1976).
otherwise shown to be discriminatorily, unfairly, or invidi-
ously motivated, would not be per se violative of the Act;
provided, further, that such criteria are subordinated to an
overall, established, objective referral system easily under-
stood by and accessible to prospective applicants for referral.
Thus, what is basically wrong with the referral system
used by the Union in the instant case is not the use of the
particular subjective criteria defended by Respondent as not
only lawful but desirable, but the fact that subjective criteria
are the sole basis for referral, without any visible objective
criteria being utilized to insure fairness and impartiality. As
noted by Administrative Law Judge Reis in a context"
somewhat different from that of the instant case, but dealing
with the necessity of making information available to
prospective applicants for referral:
There inheres an enormous potential for abuse in a
hiring hall which maintains no published priority lists,
which operates with no written standards for referral,
and in which the livelihood of men has been confined to
the unbridled discretion of a few union officials.
Administrative Law Judge Reis, with reference to the
congeries of his own case, continued:
There are many records here, not examined into a
hearing, which facially suggest discrimination or prefer-
ence and which beg for explanation . . . While I would
suppose that Section 10(b) would lay to rest the
possibility of further Board proceedings as to these
particular records, the broader question of whether a
hiring hall may be operated in this fashion should be
pursued.
Within a year of Administrative Law Judge Reis' Deci-
sion, another case ' was heard and decided in which
Administrative Law Judge Holmes noted at 697:
The [referral] system was operated without any objec-
tive criteria or standards and in a discriminatory
manner. Simmons' [a union official] testimony in this
regard is the most significant because Simmons was the
sole person with complete authority over who would be
referred. Simmons testified, "If you're asking whether
or not I have written standards or any other kind of
standards, no, most of them are in my head."
This of course reflects the situation extant here. Administra-
tive Law Judge Holmes commented at 699-700:
It seems to me that . . . subjective criteria rather than
objective criteria, were used. .... [The Union] did not
have any written standard or any other kind of
standards for referral. ....
Accordingly, I find that the Respondent has operated
its hiring hall and referral system for referral of
permanent employees to Totem without any objective
criteria or standards for the referral of unit employees
and in a discriminatory manner in violation of Section
8(bX )( A) and (2) of the Act.
'' Local Union No. 174. International Brotherhood of Teamsters, Chauf-
feurs Warehousemen and Helpers of America, Independent (Totem Beverages
Inc.), 226 NLRB 690.
103
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board" in reviewing Administrative Law Judge
Holmes' Decision did not treat the question of whether a
hiring hall which utilizes purely subjective criteria in the
operation of its referral system and totally neglects the use of
any objective criteria in the operation of that system is per se
in violation of the Act. Administrative Law Judge Holmes
found independent discriminatory motivation in addition to
the lack of objective criteria and standards in the referral
system in the case cited. Nevertheless, in a subsequent case
there is the following notation in a footnote:'
Member Jenkins, in accord with the Board's decision
in Local Union No. 174, Teamsters (Totem Beverages
Inc.), 226 NLRB 690 (1976), would find that Respon-
dent's operation of an exclusive referral system without
any objective criteria for the referral of employees
violated Sec. 8(b)(I)(A) and (2) of the Act and that the
operation of the discriminatory referral system was one
of the reasons for Respondent's failure to refer alleged
discriminatees Hendrix, Newcomer, and Penrose. Ac-
cordingly, Member Jenkins would find further that said
failure was discriminatory and in violation of Section
8(b)(IXA) and (2) of the Act.
Chairman Fanning and Member Murphy agree with
the Administrative Law Judge that the evidence fails to
establish that Respondent's failure, if any, to refer
Hendrix, Newcomer, and Penrose was a result of the
manner in which the hiring hall was operated or that-
at least with respect to Penrose-there was any failure
to refer.
Since Member Jenkins in Totem made no comment on the
subject of a hiring hall operating without objective criteria
being per se violative, yet appeared in Millstone as though he
had found it so, and since the rest of the panel in each of
those cases was different, there is no way of knowing what
the Totem panel would do in the Millstone case; that is,
whether they would have applied Board Member Jenkins'
Totem rationale to Millstone and agreed with his conclu-
sions.
If I am not reading into Board Member Jenkins' rationale
something that is not there, I understand him to be holding
that in a particular case, if there are findings of specific
violations of Section 8(b)(1)(A) and (2) toward certain
referral applicants which satisfy the motivational require-
ments of Local 357," and the discriminatory failure or
refusal to refer occurs in the context of the operation of a
referral system based solely upon subjective criteria without
any objective criteria being utilized, then the operation of
such a hiring hall arrangement is itself violative and any
individual shown to have suffered by virtue of that discrimi-
natory referral system is discriminated against within the
meaning of the Act, even without a finding of particular
discriminatory motivation as regards those individuals.
Although I have not been able to make a finding on the
subject on the basis of stare decisis in Board or in court law,
philosophical and legal bases for holding that the operation
" The panel consisted of Members Jenkins, Penello, and Walthers.
"Laborers' International Union of North America. Local No. 282, AFL-
CIO (Millstone Construction Company, et aL), 236 NLRB 621, fn. 3 (1978).
"Local 357. Teamsters supra.
D Local No. 324. International Union of Operating Engineers AFL-CIO
(Michigan Chapter, Associated General Contractors of America. Inc.), supra.
of a hiring hall referral system void of objective criteria is per
se violative of Section 8(b)(1)(A) and (2) of the Act may be
found in that line of cases which holds that a union owes to
the individuals it represents fair and impartial representa-
tion, and that fair and impartial representation in the
context of an exclusive hiring hall situation requires the
union to furnish to individuals so requesting it information
concerning the referral or out-of-work list, including names
and addresses of potential applicants for referral who are
included thereon. The Board has stated2' that a union's
arbitrary refusal to comply with an individual's reasonable
and manageable request for job referral information is a
breach of its duty of fair representation and therefore
violative of Section 8(b)(1)(A) of the Act. In finding the
violation, the Board noted in the cited case that the
respondent union's refusal to prepare the list of employees
on the referral register and supply it to the individual
requesting it deprived that person of the only means whereby
he could fully investigate whether or not his referral rights
were being protected. In light of this rationale, how can it
possibly and logically be concluded that it is violative to
deny referral information to an individual who needs it to
protect his referral rights, but not a violation for a business
agent or union to deprive the entire 400 to 500 individuals
dependent for their livelihood on referrals, as in the instant
case, of similar necessary referral information by the simple
expedient of refusing to keep standards or records which
could be used by them to insure, fairness and impartiality in
the operation of the hiring hall? If, as is the case in the
instant proceeding, the only standards or records of referrals
are kept in the business manager's head, that procedure
effectively denies all applicants for referral the information
which the Board has stated they need to protect their rights.
Failure to keep proper records which may serve as objective
criteria for referral, and the operation of a hiring hall solely
on the basis of subjective criteria, as in the instant case, is
therefore per se violative of the Act.
The record reveals that the business manager also granted
the request of various stewards and foremen for the referral
of specific individuals, and, inasmuch as this practice is open
to the same objections as the failure to maintain appropriate
objective standards and is, in effect, another means of
avoiding the proper use of objective criteria in making
referrals, it too is, for reasons stated, violative of the Act.
Backdooring, which, in effect, this practice amounts to, in
order to avoid the fair and impartial operation of a proper
referral system is discriminatory.2" International Association
of Bridge, Structural and Ornamental Iron Workers, Local
No. 433 (The Associated General Contractors of California,
Inc.), 228 NLRB 1420 (1977).
b. After September 1977
The Union takes the position that as of September 1977 it
devised a referral system containing the necessary objective
standards to insure a fair and impartial operation of its
" Although this issue is not specifically and separately alleged in the
complaint, it is sufficiently encompassed within the broad language of para. 13
to permit findings to be made with regard to it inasmuch as the matter was
fully litigated at the hearing. McGraw-Edison Company v. N.L.R.B.. 419 F.2d
67 (8th Cir. 1969).
104
LABORERS, LOCAL 394
hiring hall. Although not all of the plan's provisions had
been instituted at the time of the hearing, several of the more
important provisions were put into effect. Among these were
a work classification system, a sign-in procedure, and a
carry-over feature designed to assure each applicant for
referral that if he is not referred out to a job the first day, his
name will remain on the list and be moved up in proper
order, so that he is referred out the second or third day as
jobs become available. According to the Union, the essential
elements of the plan are in operation and working well, and
the few exceptions which came to light during the hearing
are insufficient to warrant a finding that the new plan is
defective.
The General Counsel, on the other hand, contends that
the September 1977 plan does not reflect any great change in
the operation of the hiring hall since basically it is ignored by
Riggi, who continues to refer individuals on the basis of the
same subjective criteria as he has in the past.
With regard to the changes in hiring hall procedures as
reflected in the September 1977 plan, it should first be noted
that any reform in the hiring hall referral system that may
have been instituted subsequent to the issuance of the
complaint alleging 8(b)(IX)(A) and (2) violations occurring
prior thereto does not, of course, obviate the need for a
remedial order, for it is settled law that the discontinuance of
unfair labor practices does not dissipate their effect. The
Union does not dispute this fact. The Union does, however,
argue that an abortive attempt on its part and on the part of
the General Counsel to reach settlement was based, in part,
on the new hiring hall procedures initiated in September
1977 and implemented shortly thereafter, and it requests
that the settlement be unilaterally approved on the basis of
the newly instituted referral system. During the hearing, I
refused to approve the settlement on grounds that Wakil
Abdunafi and Adolph Farmer, alleged discriminatees, were
offered nothing to make them whole for losses which they
may have suffered due to the alleged failure of the Union to
refer them. I hold to my decision on this score and for the
reasons cited.
Finally, with regard to possible violations on the part of
the Union since the implementation of the new hiring hall
plan, it should be noted that the hiring hall plan of
September 1977 was instituted long after issuance of com-
plaint. The complaint did not, therefore, contain either
allegations concerning the institution of that plan or its later
implementation, nor was the complaint amended at hearing
to include such allegations. Although counsel for the
General Counsel collaterally attacks the means by which
referrals have been made at the hall under the plan since
September 1977 as a sort of adjunct to its case-in-chief, in an
attempt to show that its use did not ameliorate conditions at
the hall, he did not specifically request that the plan or its
use be found in violation of the Act. Therefore, in light of the
facts that there is no specific allegation concerning the new
hiring hall plan; that evidence in the record concerning the
plan is at best sketchy; that the plan was instituted by the
Union in a good-faith effort to reach settlement, while
working together with the Regional Office to solve the
problems theretofore found to be in evidence; and that, at
" Case 22-CB-3849.
" Riggi testified that Abdunafi was opposed to union policies and was
any rate, Abdunafi has filed new charges specifically related
to the new hiring hall referral system, and these charges are
currently under investigation," I will make no finding
concerning the new hiring hall referral system or its
operation.
3. The alleged failure to refer Wakil Abdunafi
a. Abdunafi's protected activities
Wakil Abdunafi, the Charging Party herein, testified at
length concerning his intra-union activities and his filing of
charges and giving of testimony under the Act, for which, it
is alleged, Respondent Union retaliated against him by
refusing to refer him for employment. Abdunafi's testimony
is voluminously supported by a myriad of documents.
Though perhaps not necessary to a finding of a violation
with regard to the Union's failure to refer Abdunafi, the
totality of his intraunion efforts to change the referral system
is laid out in minute detail herein, in order to show how
impossible it is for a job applicant to obtain redress in an
exclusive hiring hall situation where that individual has been
denied referrals and where the union hierarchy is in
complete control of such referrals and maintains no criteria
or standards upon which that applicant or other applicants
may rely to support their grievances, and to show, moreover,
the hopelessness of that individual's case where a single
individual or small group of individuals not only controls all
job referrals, but also the dispensation of justice within the
union.
Abdunafi and Business Manager Riggi have been ac-
quainted with each other for 20 to 25 years. During most of
this period their relationship was relaxed and friendly. They
socialized together and Riggi befriended Abdunafi on a least
one occasion with personal financial help when Abdunafi
was in need. This was in 1965. Riggi was even cosignatory to
a loan for Abdunafi on a later occasion. Through 1968 and
1969 this relationship continued to be cordial and was
reflected in the referrals which Abdunafi obtained for
himself, his friends, and between 1965 and 1970 for his son.
In 1969 or 1970 Abdunafi began to take issue with certain
policies within the Union which were implemented or
fostered by Business Manager Riggi and the executive board
of the Union. Abdunafi testified and Riggi conceded that
from 1969 on Abdunafi and Adolph Farmer were the most
vocal members of the Union critical of the policies which
Riggi and the executive board favored. It was about this
time, according to Riggi, that the friendly relationship
between Abdunafi and the business manager began to
deteriorate. They ceased to socialize and Riggi admitted that
he did no favors for Abdunafi thereafter.
In 1971 Abdunafi, supported by Adolph Farmer, spoke
out from the floor at numerous union meetings as well as
elsewhere against the policies of the union leadership.
Although other members occassionally likewise spoke out
against such policies, it is generally conceded by all that
Abdunafi and Adolph Farmer were the most outspoken.
Upon occasion when Abdunafi and Adolph Farmer criti-
cized the way that the Union was run, their criticism
outspoken about it for over 20 years. There is no evidence, however, to
support Riggi's bald assertion on this matter.
105
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resulted in shouting matches between them and the union
leadership, and some meetings were closed for being "disor-
derly."
At one meeting in mid-1971 there was a discussion
concerning pensioners coming out of retirement and being
referred to the best jobs. Abdunafi and Adolph Farmer first
raised the issue and vociferously objected to this practice.
Emmanuel Riggi, the business manager's father, was one of
the pensioners specifically discussed at this meeting. The
discussion erupted into a heated argument between Abduna-
fi and Adolph Farmer on the one hand and John Riggi and
his father on the other. After the meeting was adjourned as
disorderly, John Riggi went to the back of the meeting hall,
grabbed his father by the arm, and told him, "Don't argue
with these guys, Pop, I will hit them in the pocketbook
where it hurts." I find the incident discussed herein as
having occurred as described by the General Counsel's
witnesses.
Abdunafi's and Adolph Farmer's attempt to restrict job
referrals to nonpensioners is activity protected under the Act
and Riggi's threat to "hit them in the pocketbook" clearly
indicates animosity and an intention to retaliate against
Abdunafi and Farmer because of their participation in this
protected activity. But for the restraints of Section 10(b), the
threat would be found to be violative under the Act.
During meetings in early 1971, and prior thereto, Abdu-
nafi complained to Riggi about not being referred out to
jobs. He and Adolph Farmer repeatedly made a point not
only of the fact that pensioners were getting the better jobs
as noted above, but also that college students were being
referred out to jobs during holiday seasons and in the
summer, while members in good standing, such as them-
selves, were out of work. In May Abdunafi wrote a letter to
the International in which he complained that in referring
men to jobs the Local did not keep a roster, and that its
failure to do so resulted in card-carrying members being
denied work while pensioners, college boys, and nonmem-
bers were getting jobs. He requested that the International
take action at the forthcoming September convention to
ameliorate the problem and specifically requested permission
to address the convention himself on the matter. The
International replied that it would refer Abdunafi's letter to
its New York regional office.
On May 28, 1971, Abdunafi brought internal charges
against Business Manager Riggi charging him with racial
discrimination, alleging that of 40 new members brought
into the Union, 36 were Italian, only 4 were blacks, and none
were Spanish Americans. He charged that this was an
attempt on Riggi's part to control the Union. He further
charged Riggi with preferential treatment of certain mem-
bers, thus attacking the referral system, as operated by
Riggi, as being unfair. He noted in his charges that while he
had been out of work for 6 months, certain other individuals
had been put to work several times on different jobs,
including the new members who were referred out to jobs
while he, Abdunafi, was not considered at all. Finally, he
objected to the fact that Riggi referred college students to
jobs during the holidays, again while Abdunafi and other
members in good standing were ignored. He asked for a new
" This event is described as testified to by Abdunafi and Gissendaner, both
witnesses for the General Counsel. Riggi denied having made the statement
hiring hall system of referral. These were the first charges
ever filed personally against Riggi.
About this period of time, during the union meetings,
Abdunafi and Adolph Farmer vocally took issue with the
union leadership with regard to other matters. When at the
June 4 meeting a recommendation was received to suspend
summer meetings, Abdunafi and Adolph Farmer strenuous-
ly objected. Once again, a rather heated argument ensued.
Similarly, Abdunafi and Adolph Farmer took issue with the
union leadership, and Riggi in particular, throughout the
meetings held in 1971 on such issues as the amount of money
provided out of the Union's treasury for delegates to the
September convention, money paid out of the treasury to
Riggi, and, of course, the contents and subject matter of
Abdunafi's charges against Riggi, all of which frequently
resulted in what some witnesses described as personal
attacks on Riggi by Abdunafi and which others described
simply as heated arguments between or among the partici-
pants.
About the time that Abdunafi brought his charges against
Riggi he similarly brought charges against other members of
the union leadership. He filed one charge against the
president of the local and its entire executive committee on
grounds that they permitted a raising of dues on a show of
hands without taking a proper secret ballot vote. The record
is not clear as to the outcome of these charges.
Despite the opposition of Abdunafi and Adolph Farmer to
the suspension of meetings during the summer of 1971, those
meetings were nevertheless suspended. Abdunafi therefore,
once again, contacted the International stating that his
charges against the executive board and the "accused"
should have received attention. He noted his anger and
argued that since meetings had been suspended he had to
bring his complaint directly to the attention of the Interna-
tional. He said that there should be constitutional modifica-
tions to protect his rights and demanded a new referral
system using a roster to protect dues-paying members. He
charged that members had no voting power, that blacks were
being starved out of the local, and that there was a
conspiracy between the local's executive board and the
Union's New York regional office to delay action. In late
October receipt of Abdunafi's letter was acknowledged by
the International. Abdunafi was advised that his earlier
correspondence had been forwarded to the New York
regional office of the Union, but that the regional office had
been unsuccessful in trying to contact Abdunafi. It was then
suggested that Abdunafi contact a particular official at the
New York regional office who would do whatever possible
to straighten everything out.
In October 1971 Abdunafi received notice that his charges
against Riggi would be heard by the executive board on
October 18, 1971. The hearing was, in fact, held on that
date, and by letter dated October 27, 1971, Abdunafi
received the trial board's report. The report stated that
although Abdunafi was free to bring charges against any
member or officer of the Union, he had failed to indicate any
basis for the charges he had brought. Nevertheless, the
report stated, his charges were heard, but after hearing
testimony from both sides the trial board found no grounds
and describes an entirely different situation. Riggi's denial is, however,
discredited in favor of the testimony of the General Counsel's witnesses.
106
LABORERS, LOCAL 394
for the complaint. It noted that the decision being rendered
was an informal one because "no complaint of any violation
of the Uniform Local Union Constitution exists." It further
noted "that a previous similar complaint by another brother
member was heard and judged by the Trial Board, and the
decision rendered was the same" and that "any future
similar complaints of racial discrimination or preferential
treatment will not be heard by any Trial Board of Local 394
unless a violation of the Uniform Local Union Constitution
is cited."
When Abdunafi received the decision and report of the
trial board, apparently in disagreement with its findings, he
filed new charges, this time against the recording secretary,
the entire executive board and the hearing panel for "not
being fair and impartial and for being influenced by Brother
Riggi whom they must depend on for work." Abdunafi
stated in his charge that to prove his case against Riggi he
wanted certain union records produced upon which he
wished to rely, but that when he asked for the records, Riggi
stated that he would not permit their production. According
to Abdunafi's charge, when Riggi forbade production of the
records, the trial board did not pursue the matter. This
prevented Abdunafi from obtaining the evidence he needed
to support his charge against Riggi. Abdunafi charged that
the trial board members were dependent upon Riggi for
work since he was in total control of referrals and for that
reason they would not act impartially for fear of not
obtaining work in the future. Thus, Abdunafi implied that
not only does Riggi determine who makes a living through
his control of the referral system, but that he also, through
this power, controls justice within the Union, thereby
cutting off any effective means of appeal, again by virtue of
his control of the entire hiring hall referral system. This, at
least, was Abdunafi's charge.2
On November 3, 1971, Abdunafi appealed the trial
board's decision and in his letter of appeal to the Interna-
tional of that date implied that the local had engaged in
discrimination based on color, national origin, and/or
religion and charged it with preferential treatment, noting
that the entire executive board of the local, the men who
heard and judged Abdunafi's charges, represent a control-
ling faction in the local who "have raped the Local of all the
best jobs for themselves, family and friends." Receipt of
Abdunafi's appeal was acknowledged in December 1971 by
the International and he was later advised that a hearing on
his appeal would be conducted on January 20, 1972, in New
York City.
Also on November 3, 1971, Abdunafi filed additional
charges against Jack Merlo, president of the Union, and
against the entire executive board for suspending the July,
August, and September union meetings, during which
suspension the alternate candidate picked to attend the
convention was, he charged, chosen illegally. The new
charges also included the allegation that Recording Secre-
tary Phillip Renna and the entire executive board had
tampered with and falsified the minutes of the June meetings
in connection with the extraction of $3,000 from the Union's
treasury. Though it was not clear from the document itself,
" The numerous documents received into the record by stipulation of the
parties were received for the purpose of showing the extent of Abdunafi's
intraunion activity. not for the truth of assertions contained within the
documents.
it would appear that the charge was that a motion had been
included in a previous meeting's minutes to give $1000 to
each of the delegates to the convention, and that the
minutes, as written, did not reflect what actually had
occurred.
On January 14, 1972, the executive board through its
secretary, Phillip Renna, advised Abdunafi that the charges
included in Abdunafi's letter of November 3 would not be
heard because his charge that the suspension of meetings
during the months of July, August, and September was
illegal was the subject of an earlier charge filed by another
member which had already been resolved, and the resolution
of the earlier charge disposed of Abdunafi's charge. With
regard to Abdunafi's charge that the alternative candidate to
the September convention had been chosen illegally, the
executive board decided that since the executive board had
selected two alternative delegates at a meeting on September
18, 1971, and one of them attended the convention, the
procedure was not in violation of the constitution. With
regard to the charge of tampering with and falsifying
minutes in order to extract monies in violation of the
constitution, the board noted that member Adolph Farmer
had filed a similar charge and had been denied a hearing
because there was no evidence of any tampering with or
falsifying of minutes. The report further noted that the
constitution authorizes lawful expenditures and the allot-
ment of convention expenses is a lawful expenditure. It
concluded that since Farmer is appealing to the Internation-
al, no trial board hearing would be held. Finally, with regard
to the charge that delegates to the International's convention
held in September 1971 were alloted $1000 each in violation
of the International's constitution, the report noted that the
international constitution allows for per diem expenses by
the International to delegates but does not state that a local
union cannot supplement these expenses, and there was
therefore no basis for the charge. Upon receipt of the local
executive board's report, Abdunafi wrote a letter to the
International complaining about his being refused a hearing
by the executive board of the local union, noting that there is
nothing in the constitution which permits denial of a hearing
on the grounds tendered by the local union's executive
board. Abdunafi was advised on February 28, 1972, that the
matter had been placed on the agenda of the International's
general executive board. On June 21, 1972, he was further
advised that a hearing panel of the general executive board
would consider the matter on July 11, 1972, in New York
City, however, the record reveals that the matter was heard
or also heard by the general executive board some time
during the period July 24-28, 1972, in Banff, Alberta,
Canada. The hearing panel in Banff decided26 with regard to
the suspension of meetings in July, August, and September
1971 that "the time to hold said meetings has passed and
they cannot be ordered to be held." The panel further found
that at the meeting of June 4, 1971, a motion was made,
seconded, and passed to allow each delegate to the conven-
tion expense money, and presumably it was therefore legal;
that the charge that the minutes were falsified was not
proven; and that the executive board indicated that there
' Both Abdunafi and representatives of the local union made appearances.
107
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was no falsification of the minutes and no trial would be held
on these charges. The panel recommended that the appeal be
denied and its recommendation was adopted.
On February 2, 1972, the general executive board of the
International met in Miami to consider Abdunafi's appeal
dated November 3, 1971, concerning his charges of racial
discrimination and preferential treatment levelled at Riggi
and dismissed by the local union's executive board. The
general executive board recommended that Abdunafi's
appeal be denied as he had failed 7 to substantiate his charges
against Riggi. This recommendation was approved.
On December 12, 1972, Abdunafi attempted to file
charges directly with the International. He charged the
entire local union's executive board with disregard of the
constitution when it filled the vacancy occasioned by the
resignation of the vice president with an individual who did
not meet the requirements to fill that office as outlined by
the constitution. He requested the International to act
because, he complained, the local's executive board always
finds itself not guilty and because he could not get a fair
hearing because the executive board consisted of relatives
and friends of the union leadership. He charged the local's
executive board with being corrupt and requested the
International to intervene. The International, on December
20, acknowledged receipt of Abdunafi's letter and advised
him that charges on the local level must first be heard by the
local's trial board, after which appeals may be taken to the
general executive board of the International. On January 16,
1972, Abdunafi followed the suggestion of the International
and filed his charges against the Union's entire executive
board at the local level, alleging that it had chosen a member
to fill the vacancy for the office of vice president who met
none of the qualifications for the job. Receipt of Abdunafi's
charges was acknowledged on March 14, 1973, at which
time he was advised that they would be heard on March 23,
1973. Meanwhile, Abdunafi wrote one more letter to the
International complaining about the delay caused by the
failure of the local union's executive board to meet, and
bringing to the attention of the International the fact that he
had been filing charges and appeals without success for 2
years and had not worked for I of these years. Once again,
he blamed the hiring system and strongly implied that his
failure to obtain work was in part due to the fact that he filed
charges. On March 20, 1973, Abdunafi indicated his distrust
of both the local Union and the New York regional office
when in a letter to the International he requested that an
observer be sent to the forthcoming March 23 hearing and
not from the New York regional office. The local executive
board met on March 23 as scheduled and on March 28,
1973, issued its decision finding that since Abdunafi present-
ed no evidence, the complaint against the executive board
should be dismissed. Abdunafi subsequently appealed this
decision to the International and in the appeal explained that
he had brought witnesses with him through which he
intended to submit evidence but that Riggi prevented him
from using his witnesses. He also explained that when he
was asked to produce evidence in support of his charge, he
told the executive board that the evidence was contained in
" Abdunafi was present, as were representatives of the Union.
" Abdunafi's charge is not, itself, part of the record.
Art. Xll, secs. 5, 6, and 7 were cited.
his charge and in the minutes of the meeting at which the
alleged violation of the constitution occurred. Riggi, how-
ever, refused to permit the use of the minutes as evidence,
and for this reason Abdunafi was prevented from proving his
case.
Despite the initial decision concerning Abdunafi's charge
that the vice president's nomination was improper, and the
executive board's findings of no evidence to support his
charge, the same trial board met again on April 11, 1973,
and determined that Abdunafi had been right, that the
individual holding the position of vice president had, in fact,
not been in good standing for 2 years preceding this
appointment and had, under the constitution, been appoint-
ed illegally. The trial board recommended that the executive
board take further action. Meanwhile, Abdunafi filed anoth-
er charge, this one against Secretary Phillip Renna, the
executive board, and the March 23, 1973, trial panel,
apparently for their handling of Abdunafi's charge which
was heard on that day. :" The hearing of this charge was
scheduled for May 9, 1973. On that day the trial board
rendered its decision finding that although Renna had been
guilty of negligence, he should not be penalized because of
illness in his family. It further found that the executive board
and trial panel of March 23, 1973, were not guilty of the
charges brought against them by Abdunafi. The decision
included instructions that no copies of the minutes of the
trial board's meeting were to be given out." It was noted
under separate cover that with regard to the charges against
the trial board of March 23, 1973, all of the charged parties
were present but Abdunafi did not press ' ° his original
charges against them and so they were dismissed as
unfounded.
On June 7, 1973, Abdunafi appealed the May 9, 1973,
decision to the International, charging that the panel had
been handpicked and that it had willfully defied and violated
the constitution, and demanding that the handwritten
minutes of the trial panel be made available.
Abdunafi's appeal of the dismissal of his earlier charges
against the entire executive board and his appeal of the trial
board's decision to dismiss his charge concerning the illegal
appointment of the vice president were decided at a meeting
of the general executive board held at White Sulphur
Springs, West Virginia, during the period August 13-17, and
these decisions were adverse to Abdunafi's position. Abdu-
nafi was so advised on August 30, 1973. Therefore, in a letter
dated September 21, 1973, Abdunafi appealed the decisions
of the general executive board, reviewing all the grievances,
charges, appeals, and supporting facts concerning these
matters and requesting permission to address the next
regular convention by way of appeal as provided by the
International constitution. On September 25, 1973, Abduna-
fi was advised by the International that he would subse-
quently be advised of the dates of the next regular conven-
tion and of the time and place at which he might appear
before the committee on grievances, adjustments and ap-
peals.
On March 20, 1973, Abdunafi wrote to Robert E. Powell
of the International stating that there are 125,000 blacks in
,o Abdunafi had, in the meantime, been trying to get hearings before the
International in Washington because he felt that he could not get a fair trial in
Newark.
108
LABORERS, LOCAL 394
the International and asking Powell where he should seek
help. There is no indication in the record as to whether
Abdunafi received any reply from Powell.
Through a letter dated April 3, 1973, Abdunafi ws
advised by the Union that charges had been brought against
him by John Riggi based upon alleged misconduct on
Abdunafi's part at the March 23, 1973,3' meeting at which
his charges against the executive board had been heard.
Abdunafi was advised that a hearing on Riggi's charges
against him would take place on April 19, 1973. The
apparent basis for the charges were allegations by Riggi that
Abdunafi used foul language at the meeting during a heated
argument among those present. Abdunafi denies having
sworn, but admits that he may have used inflammatory
language. On April 19, 1973, the trial board held its hearing
and found that Abdunafi had, as Riggi charged, conducted
himself at the March 23, 1973, meeting in a manner violative
of the constitution. Abdunafi was so advised by a letter
dated April 26, 1973, in which he was also advised that he
was suspended from attendance at all regular and special
meetings of the Union for year commencing June 1, 1973.
He was also advised that the decision would not affect, or
prevent future work referrals.
Riggi testified that controversies have arisen at some
meetings during which tempers get frayed, that people shout
and get angry. He also testified that four-letter words under
such circumstances are not uncommon and that at the same
meeting other members used improper language. Riggi
attempted to make the point, however, that it was not the
use of the language used by Abdunafi so much as it was his
tone, and that disciplinary action may be taken agains
members for swearing, depending on the tone. He stated that
it is a matter of "containing the meeting in its proper
perspectives" and "it is the duty of the president" to take
steps to insure this because the meetings must be conducted
with dignity. The president did not, however, bring charges
against Abdunafi on this occasion. Rather, it was Riggi who
brought charges. The record contains no evidence that
anyone had ever had charges brought against him, either
before or after the incident of March 23, 1973, for swearing
at a union meeting, other than the charges discussed in this
Decision.
Despite Riggi's testimony that charges were brought
against Abdunafi not so much for the fact that he swore but
because of the tone he used, I find that Riggi brought these
charges against Abdunafi because of the various positions
Abdunafi had previously taken against Riggi and the
executive board and the numerous charges he brought
against them, particularly his criticism of Riggi's one-man
control of the Union and its referral system. I base this
finding on Riggi's own testimony that swearing was not
uncommon at union meetings and that others had used
improper language at the very same March 23 meeting, yet
no one had ever previously been disciplined for swearing as
had Abdunafi. I find it of particular interest that it was
Riggi, rather than the president who, according to Riggi, is
in charge of such matters, that brought the charges and that
" Both Abdunafi and Riggi were in error as to the dates of this incident.
Rather than relying upon their testimony, I rely on supporting documenta-
tion.
" Abdunafi was advised by letter dated May 9, 1973, that it is customary
for the general executive board to delegate its judiciary authority to hearing
the executive board panel found Abdunafi guilty and
recommended discipline all out of proportion to the of-
fense-a full year's suspension from all meetings. Though
the internal disciplinary actions undertaken by this local
against Abdunafi at Riggi's bidding are not subject to a
finding of a violation, they are subject to analysis for the
purpose of determining whether or not there was animus on
Riggi's part and on the part of the executive board in its
dealings with Abdunafi. I find therefore that Riggi brought
the charges against Abdunafi and the executive board trial
panel suspended Abdunafi because of his continuing efforts
to undermine Riggi's control of the Union and its referral
system, and that Riggi's animosity, as reflected by Abduna-
fi's suspension, sheds light on the subsequent events dis-
cussed hereafter.
Abdunafi subsequently appealed his suspension to the
International in Washington, D. C., and asked for a hearing
in Washington because he felt he could not obtain a fair
hearing from the local's executive board since everyone on
the executive board depended on Riggi for job referrals. As
Abdunafi pleaded in his appeal, "they either fall in line or
their families starve like mine." Abdunafi further urged that
when an executive board is charged with wrongdoing, it
should not then act as a trial panel. Thus, Abdunafi
expanded his charges against Riggi and the Union by
charging that Riggi's control of the referral system also
interfered with fair and evenhanded dispensation of justice
within the Union.
On May 5, 1973, Abdunafi followed up his initial appeal
to the International with another, more detailed letter,
attacking the system of trial procedures used at the local his
suspension the referral system and the complete control of
the Union at the local level by Riggi and his "hand picked"
executive board, and requesting once again that his appeal be
heard in Washington." On May 8, 1973, he formally
appealed the executive board's decision of April 19, 1973,
alleging that the panel was illegal because its members were
not disinterested but partial, unfair, and handpicked by
Riggi. He asked for a new trial at which he would present his
own witnesses. He charged Riggi with retaliating against
him because he had previously filed charges against Riggi.
On July 19, 1973, Abdunafi was advised that a hearing on
his appeals would be held by a hearing panel of the general
executive board in New York on August 1, 1973. Abdunafi
was invited to be present at his own expense and to submit a
brief or other documents, in the alternative. Despite his
appeals and other efforts, Abdunafi was suspended from
attending union meetings for I year. While on suspension he
did not, of course, attend union meetings but both before
and after his suspension he attended meetings and vocifer-
ously and untiringly pursued his goal of undermining Riggi's
authority and control of the hiring system.
On July 18, 1973, Abdunafi filed new charges against the
Union on the local level, this time against the May 9 trial
panel, alleging that it was handpicked, presumably by Riggi,
and again bringing charges against the entire executive
board. On July 25, 1973, Abdunafi was advised by Record-
panels in various regions for the sake of expedition. Abdunafi replied on May
4, 1973, stating that he did not want the New York panel to hear his case and
asking rather that the general executive board in Washington hold the
hearing. He also asked for a transcript of any hearing held in New York.
109
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing Secretary Renna that since he had not mentioned any
specific violations as wrong, and no date was specified, his
charges would not be entertained.
On December 21, 1973, Abdunafi wrote a letter to
Executive President Peter Fosco of the Laborers' Interna-
tional Union of North America, in which he outlined the
hiring hall referral system as he understood it to operate at
the Newark local. Specifically, he charged that 10 percent of
the jobs, the best jobs, were awarded outside the hiring hall;
that Riggi gives the better jobs to whomever he chooses; that
Riggi controls all referrals and therefore controls the
membership; that other members including himself have
been deprived of benefits under this system; and that the
International assists the local union in its violation of the
constitution by ignoring what has been going on. Abdunafi
then asked for an audience to discuss these matters. Receipt
of this 3-% page single-spaced letter was acknowledged on
January 4, 1974, with a note that it had been referred to the
union's New York regional office. On January 28, 1974,
Abdunafi mailed copies of this letter to the eight vice
presidents of the International along with a complaint in his
covering letter that he had asked Fosco not to refer his letter
to the New York regional office but to have the Internation-
al tend to the matter. On February 28, 1974, Fosco
acknowledged receipt of Abdunafi's letter to the vice
presidents and promised to inquire into the matter. In an
undated letter" some time later, Abdunafi advised Fosco
that he was in receipt of Fosco's letter dated April 11,
1974. In his letter, Abdunafi stated that he was shocked to
have been told by Fosco that he had investigated Abdunafi's
charges and found that Local #394 does not have a hiring
hall or roster system and that members were permitted to
seek employment on their own. Abdunafi went on to
complain about being out of work and deprived of welfare
and pension benefits as a direct result of the illegal referral
system. After reviewing the problems with the way the
hiring hall system was run, Abdunafi registered an objection
to Fosco's telling him that he should seek his own employ-
ment. Abdunafi then complained that the local was corrupt
and that the business manager only represented 10 percent
of local laborers and got the better jobs for his own people.
Abdunafi complained further that he could not obtain work
because stewards and foremen would only accept laborers
with slips signed by Riggi. Abdunafi closed with a request
for an audience. Receipt of Abdunafi's letter was acknowl-
edged on October 9 by Fosco, who once again advised him
that it had been forwarded to the New York regional office.
On December 23, 1974, Abdunafi wrote to Fosco once
again, enclosing clippings from the Elizabeth Daily Journal
of the same date. He advised Fosco that it was Fosco's job to
depose Riggi and see to it that a fair and impartial hiring
system was installed. He told Fosco that he had not received
a reply to his last letter and took the step he did with great
reluctance because he was forced to do so under the
circumstances. Abdunafi was apparently referring to his
filing of charges against the Union with the National Labor
Relations Board on December 12, 1974.76 He had previously
" The letter was allegedly postmarked September 10, 1974, according to a
communication from Fosco to Abdunafi's dated October 9, 1974.
Not included in the record. Once again the description of the content of
Fosco's letter as described in Abdunafi's letter is noted, not to show what
Fosco's letter allegedly contained nor for the truth of matters contained in
filed charges against the Union with EEOC in October 1974.
Fosco acknowledged receipt of Abdunafi's letter on January
2, 1975.
On July 1, 1975, Abdunafi filed the charge in the instant
proceeding. The charge was discussed at union meetings by
Abdunafi and by the union leadership. The union leadership
maintained that the filing of the charges with the National
Labor Relations Board put the Union under a financial
strain and that they could not tell what the total cost would
be because they did not know how long the matter would be
in issue. In particular, attorney's fees were discussed, and
certain sums of money labeled as attorney's fees and
apparently received by the business agent for that use were
questioned by Abdunafi.
Even after filing the unfair labor practice charges against
the Union in late 1974 and 1975 Abdunafi pursued his
objective of getting the hiring hall referral system changed
through internal means. On September 27, 1975, he once
again filed charges personally against Riggi for "unfair
hiring practices." The matter was tabled, however, "until
such time as the National Labor Relations Board has
reached a decision on similar charges," according to a letter
dated November 4, 1975, addressed to Abdunafi and signed
by Recording Secretary Urso.
On October 14, 1975, Abdunafi wrote a letter to Secretary
of Labor Dunlop briefly outlining a number of the various
grievances which he had previously brought to the attention
of the local Union, International, National Labor Relations
Board, and other entities. There is no evidence, however,
that this letter ever came to the attention of the Union.
Abdunafi's crusade against Riggi and the Union's leader-
ship continued throughout 1976 and 1977. In June 1976
Abdunafi contacted President Angelo Fosco of the Interna-
tional to ask about his being on the agenda at the
forthcoming convention. He mentioned, once again, Riggi's
alleged wrongdoing and the retaliation which he claimed to
have suffered for the 5 years since he first filed charges
against Riggi and requested a personal audience with Fosco
before the convention to discuss the matter. Subsequently,
Abdunafi received a letter from the general secretary-trea-
surer of the International advising him that he would be
advised of the time and place just as he had been in 1973
when he first appealed the general executive board's deci-
sions. Eventually, Abdunafi received word that his appeal
would be heard by a trial panel at the convention in Miami
on September 13, 1976.
On October 15, 1976, Abdunafi filed charges with the
Department of Labor under the Labor Management Report-
ing and Disclosure Act concerning reimbursement of Riggi
from the Union's treasury for $12,500 in attorney's fees
which Abdunafi alleged were personal in nature and
therefore illegal. Abdunafi alleged that the reimbursement
was voted by a simple show of hands and that this too was
illegal. He alleged, further, that an increase in dues was
voted without a secret ballot in violation of the statute; and
that $1,000 was extracted illegally, apparently to send
delegates to the forthcoming convention, again without a
Abdunafi's letter, but rather to show that Abdunafi registered his displeasure
in this and other letters as to how the Union operated under Riggi's direction.
"Not included in the record.
"Dismissed February 21, 1975.
110
LABORERS, LOCAL 394
secret ballot. These matters had been discussed, according to
sketchy testimony, at a union meeting in early October, and
a heated debate had resulted.
Under separate cover, by letter of the same date, Abdunafi
also wrote a letter to the Secretary of Labor requesting that
an injunction issue restraining the business manager from
sending anyone to work until his problems were resolved. In
his very lengthy letter Abdunafi charged that the Interna-
tional was covering up and condoning the breach of its
constitution by the local union. He alleged that at the
convention in Miami, at his hearing, two of the panel
members were the same individuals to whom he objected
when they sat on the trial panel in the New York regional
proceeding. He argued that this was "tantamount to the
accused sitting in judgment of themselves." He charged that
the Miami panel recommended dismissal of his bona fide
charges, and that breaches of the constitution by the local
resulted in monies being improperly extracted from the
treasury and in the improper election of ineligible local
officials. He complained that his charges were not properly
presented and called into question the local's practice of
failing to follow proper protocol. He thereafter discussed, at
length, the various problems previously brought to the
attention of the International, including the business manag-
er's complete control of the local union through his
authority to unilaterally refer out individuals of his choosing
and the alleged "improper extraction of $1,000" for the use
of the alternate delegates to the 1971 convention.
Finally, Abdunafi criticized Riggi for the financial hard-
ships which he alleged he suffered because of Riggi's failure
to refer him to jobs in retaliation for the charges which he
had brought against Riggi. Along with the explicit charges
contained in Abdunafi's letter of October 15, 1976, he also
enclosed several copies of earlier letters which included
similar or related charges and allegations.
On November 23, 1976, Abdunafi brought new charges
based upon occurrences which allegedly took place during a
meeting of the local Union on November 5, 1976. He
charged Recording Secretary Urso with falsifying the min-
utes of that meeting by not including therein a reference to
Abdunafi's conversation with an attorney concerning the
reimbursement of Riggi out of treasury funds for attorney's
fees amounting to 12,500. Secondly, he charged the
president of the local Union with failure to properly conduct
the meeting because he did not ask Abdunafi why he
objected to adoption of Urso's minutes. Finally, he charged
the entire executive board, except for Vice President Car-
rington,'7 with complicity along with the recording secretary
and president for permitting minutes to be adopted which
did not properly reflect what had occurred at the meeting.
Abdunafi then charged a conspiracy among those named in
his charge to have the lawyer brought to the meeting "to
brainwash the membership into allowing S12,500 to be
extracted illegally from the treasury." Abdunafi contended
that the legal expenses were the result of Riggi's errors and
therefore not reimbursable, but added that he might not
have objected to the reimbursement of Riggi if it were not
for the fact that Riggi personally controlled the entire
referral system and "had the power to decide if a man eats or
" Carrington had asked that Abdunafi's reasons for objecting to the
adoption of the minutes be noted but his request was ignored.
starves," and therefore effectively controlled the vote in
favor of reimbursement. In conclusion, Abdunafi drew a
comparison between himself and certain others who were
bearing the hardships of unemployment because of their
defiance of Riggi and those who supported him and his
control of the Union through his singular authority over the
referral system. Abdunafi demanded that his charges be read
to the membership at the next regular meeting.
On January 4, 1977, Recording Secretary Urso advised
Abdunafi that the charges which he had filed on November
23, 1976, were scheduled for hearing on January 24, 1977. In
the same letter Urso also advised Abdunafi that counterc-
harges had been brought against him, copies of which were
enclosed, and that the countercharges would also be heard at
the same trial board meeting. The countercharges against
Abdunafi were brought by the members of the executive
board, individually and as a body and accused Abdunafi of
"defaming and slandering the Recording Secretary with an
accusation of minutes falsification" and by "alluding that a
conspiracy existed between the various members of the
Executive Board . . . and separately the business manager
and an attorney . . . to illegally extract money from the
Union's treasury." Abdunafi's charges of minutes falsifica-
tion and conspiracy were considered to be, under the
countercharges, defamation and slander and therefore viola-
tive of the local union constitution.
On January 26, 1977, the trial board issued its report on
the January 24, 1977, hearing on Abdunafi's charges and on
the countercharges filed against him. The trial board found
all of Abdunafi's charges to be without merit and all of the
countercharges against Abdunafi to be meritorious. The trial
board decided unanimously that Abdunafi should be sus-
pended from attending all regular and special meetings for 2
years. Although none of the individuals charged by Abduna-
fi served on the January 24, 1977, trial board, one of those
who served on that board, Timothy Nickles, testified that he
was appointed to the trial board by the president of the local
Union, Jack Merlo. It must be assumed that the procedure
for choosing individuals to serve on trial boards is a regular,
ordered procedure done in accordance with established
rules. Therefore, it may safely be assumed that the other
members of the January 24, 1977, trial board, like Nickles,
were all chosen to serve on that board by Merlo or by the
executive board, of which he is a member. Thus, in either
case, as Abdunafi was later to complain, the charged parties,
i.e. Urso,1" Merlo, and the rest of the executive board, chose
their own judges to decide their own guilt or innocence with
respect to the charges brought against them by Abdunafi as
well as the guilt or innocence of Abdunafi with respect to the
countercharges brought against him by the members of the
executive board, individually and as a body. In light of the
inequities of the procedure utilized, the ultimate decision
was not suprising. Abdunafi appealed to the International on
procedural grounds and charged that his suspension was
retaliatory. The battle continues.?
Although it is not my province to judge the internal
functioning of a labor organization to determine whether it
is democratic or otherwise, and although the Supreme
Court, as noted above, has counselled against the National
"Urso was also a member of the executive board.
"New charges against the Union were filed in late 1977.
III
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Labor Relations Board's attempting to take an affirmative
role in, or getting too much involved in, establishing internal
union procedures, the Charging Party in his 8-year-old
crusade has attempted to show that placing in the hands of
one individual the sole authority to control the hiring hall
referral system permits that individual to dictate who will be
able to support himself and his family; and if that individual
has the power to feed or starve those who are dependent on
such a system, he likewise effectively controls those who
serve on the various committees and boards upon whom the
membership depends to adjust grievances and dispense
justice. Without deciding the correctness of the decision of
the January 24, 1977, trial board, I find that the entire
congeries of events beginning in 1971 and culminating in the
January 24, 1977, trial board decision amply demonstrates
the credibility of Abdunafi's hypothesis that placing in the
hands of one individual the sole power to regulate an
exclusive hiring hall system, without the use of objective
criteria or standards, has consequences more far-reaching
than the occasional denial of a particular job to a person out
of favor with that authority and permeates the atmosphere
with such potential for abuse that the organization depen-
dent upon the proper functioning of that hiring hall system
cannot effectively operate to serve its membership or other
interested parties.'0
The primary purpose in describing in such minute detail
the course of Abdunafi's 8-year battle with Riggi and the
union hierarchy is to demonstrate beyond question Abduna-
fi's protected concerted activity in trying to undermine
Riggi's control of the hiring hall system, and to illustrate, by
describing the various actions taken in retaliation against
him, the fact that animosity existed and exists because of
these activities. However, an overall complete understanding
of the sequence of events in Abdunafi's case is also necessary
in order to comprehend the tremendous extent to which an
individual worker's Section 7 rights to freely engage in
protected concerted activities can be actually or potentially
limited by placing in the hands of one individual or group of
individuals complete dictatorial control of a hiring hall
system without the protection of workable objective criteria
or guidelines to immunize those who are dependent upon
such a system for their livelihood from the actual or
potential abuses which may be occasioned by the use of
irrelevant, unfair, or invidious considerations in the dispen-
sation of job referrals. Although only a few individuals or
even no one at all may suffer actual financial setbacks if an
exclusive hiring hall referral system without objective
guidelines is operated in a fair and just manner, the potential
for abuse in such a system is all too pervasive and cannot
help but serve as a warning to those individuals dependent
on the system that it is far more important to curry favor
with those in power in order to insure one's income than to
o As noted above. Abdunafi, in his many appeals and letters to the
International and to government bodies, charged that the executive board
could not operate in an independent manner free of Riggi's authority because
they were dependent on Riggi for their livelihood. Without concluding that
the executive board which brought countercharges against Abdunafi in 1977
was in any way influenced by the amount of work they were referred to by
Riggi, as claimed by Abdunafi, the record reveals that in 1975 (the only year
for which adequate records were provided), of the five members on the
executive board besides Riggi and his assistant Corsentino, all worked in
excess of 1100 hours, twice the average worked by other members of the
Union that year. Although this does not, in and of itself, prove that Riggi
dedicate oneself to the fair, proper, and effective operation of
the organization and its hiring hall for the benefit of all who
are dependent upon it for a livelihood.
b. Failure to refer Abdunafi
The record reveals that the Union refers individuals to
jobs in three ways. First, an applicant for referral may report
to the union hall where Riggi or one of his assistants might
choose to refer him to a job upon receipt of a request for
laborers from a contractor. Secondly, Riggi occasionally
receives emergency requests from contractors on weekends
or after hours for laborers to be sent out to the jobsite. On
these occasions Riggi calls up certain individuals and refers
them directly to the job without going through the hiring
hall procedure. Finally, sometimes a request will be called in
by a contractor, superintendent, foreman, or steward re-
questing permission to hire a particular individual for a job.
Riggi frequently grants such requests.
When it comes to appointing stewards, Riggi would most
frequently learn of new job opportunities during pre-job
conferences with contractors. After Abdunafi and Adolph
Farmer" began their campaign against Riggi's control of the
referral system in 1970, Riggi did not thereafter call
Abdunafi or Adolph Farmer to appoint either of them to
stewards' positions or contact them in the evenings or on
weekends to work on emergency jobs. For these jobs Riggi
would usually call those members with whom he was most
familiar. When Riggi learned of new long-term jobs opening
up, he usually contacted stewards or, again, those individu-
als whose names were most familiar to him. Though prior to
1971 both Abdunafi and Adolph Farmer were among this
select group, Riggi did not call them thereafter when he
heard that new good job openings would be coming available
in the near future. Rather, individuals close to Riggi such as
Joseph Corsentino and Art Carrington obtained stewards' or
foremen's jobs, and, according to the testimony of both,
when they worked, it was almost exclusively as steward or
foreman, particularly in 1976 and 1977. Similarly, the
testimony indicates that officers of the Union work steadily
and more often as stewards or foremen than do rank-and-file
applicants for referral.
With reference to referrals out of the hall, Riggi testified
that the union hall is opened at 4:30 a.m." by one of the
members who is assigned this duty. Job applicants are
sometimes waiting in their cars for the hall to open and since
the initiation of the sign-in procedure in September 1977
have signed the roster, noting the time they first arrived.
According to all witnesses other than Riggi, the hiring hall
opens at 6:30 a.m. Prior to September 1977" the time of
arrival at the hall was not considered when referrals were
made, so it is doubtful that anyone would bother to come as
controls the Union by controlling the referral system, it does, once again,
indicate that the lack of visible objective standards creates a situation where
there could be abuses and, moreover, abuses which could not be detected
without such standards.
Discussed infra.
The sign-in sheets bear out Riggi's testimony but reflect that individuals
did not begin to sign in at very early hours until several weeks after the
initiation of the sign-in system in September 1977.
" Hereinafter the discussion will concern the system of referral used prior
to September 7, 1977, unless otherwise indicated.
112
LABORERS, LOCAL 394
early as they did later, with the initiation of the roster
system. I conclude therefore, though the record is not that
clear, that prior to September 1977 the hall opened at about
6:30 a.m., and thereafter it opened at 4:30 a.m., as Riggi
testified.
Riggi would usually arrive at the hall between 6 and 6:30
a.m. and remain there till 8 or 8:30 a.m., when he would
leave. While at the hall Riggi would receive requests for
laborers, go out into the hall, call individuals by name, and
issue referral slips to whomever he chose to send to work.
After Riggi left the hall, his assistants, John Corsentino and
Chris Renda, would be in charge of issuing referral slips.
The hall closed at about 9:30 a.m.
Wakil Abdunafi, who had been a member of the Union for
9 years, testified that he shaped up regularly at the union
hall, more often than others. Some other witnesses testified
to the fact that Abdunafi shaped up regularly while still
others stated that sometimes he was there, sometimes not.
Riggi testified that Abdunafi did not show up consistently
and that he would see Abdunafi at the hall only once every 2
or 3 weeks. On cross-examination, however, Riggi admitted
that Abdunafi might have been present in the hall a number
of times when Riggi did not notice him and that Abdunafi
might have shaped up more often than once every 2 or 3
weeks. Riggi further testified to having been absent from the
hall for extended periods due to illness and other personal
involvements. From the totality of testimony of all witnesses
I conclude that Abdunafi shaped up at the hall on a fairly
regular basis.
Riggi testified that the best time to report for referral is at
6 a.m. and that Abdunafi did not arrive at the hall until
between 7:45 and 8:30 a.m., rarely before 8 a.m. Riggi stated
that 7:45 to 8 a.m. was the latest an individual could report
and still expect to get referred to a job and that 8 a.m. was,
ordinarily, starting time on the job for laborers. He testified
that one of the reasons that Abdunafi was not referred out
was because he did not report consistently to the hiring hall
and, when he did, he was late.
The weight of testimony of other witnesses tends to
support Riggi insofar as he claimed that Abdunafi did not
arrive at the hiring hall early. Thus, Nick Farmer testified
that in the previous 2 or 3 years he regularly reported to the
union hall, getting there at 6:30 a.m. to report to the job at 7
or 7:30 a.m. He testified that he never saw Abdunafi at the
union hall at 6:30 a.m. Renious Edwards testified that
Abdunafi would arrive usually between 7 and 8 a.m. I find
that Abdunafi, when he shaped up, arrived, as Edwards
credibly testified, neither very late nor very early. But
Abdunafi testified that regardless of when he arrived, other
laborers who shaped up after he did were nevertheless sent
out before him, intimating that certain individuals were
referred out because of their relationship to Riggi, regardless
of the time they arrived at the hall, even though Abdunafi
was already there, ready, willing, and able to work if he got
the job. He testified that in over a hundred instances he was
there in the hall ready to go to work when people who
arrived later than he did were referred out while he remained
behind. Abdunafi's testimony was supported by other
witnesses. Thus Resbeth "Nick" Farmer testified that men
were referred to jobs from the hall as late as 8 a.m. and that
when he was a steward on certain jobs, he called in for
additional laborers as late as 8:30 or 9 a.m. He further
supported Abdunafi's testimony by stating that it did not
matter whether an individual arrived first at the hall or not
because Riggi picked whomever he wanted to refer regard-
less of time of arrival. Jonathan Ruth testified that he shaped
up in 1975, arrived at the hall between 7:35 and 8 a.m., and
witnessed other individuals who arrived at the hall after
Abdunafi being referred out to jobs while Abdunafi re-
mained behind. Renious Edwards credibly testified that he,
too, on a number of occasions, witnessed Abdunafi remain-
ing behind while other individuals who arrived later were
referred out.
Abdunafi testified that once he arrived at the hiring hall
he would usually stay there waiting for referral until the hall
closed. After Riggi left for the day, Corsentino and Renda
were in charge of referrals, and although they referred
individuals to jobs as late as 9 or 9:30 a.m., they never
referred Abdunafi to any job.
From the testimony of Abdunafi and other witnesses I
conclude that the time that Abdunafi arrived at the hall was
not a consideration in Riggi's failure or refusal to refer him
to jobs, because whether he arrived before or after other
individuals, the others were referred out before him. Respon-
dent's reliance upon this factor as an excuse for failing to
refer Abdunafi is clearly an afterthought.
Though Abdunafi had been a member of the Union for
many years before, he began receiving steady referrals
through the hiring hall in 1966. From 1966 through 1970 he
worked 1093, 489, 906, 858, and 1256 hours. As noted
above, it was in 1969 and 1970 that the relationship between
Riggi and Abdunafi began to deteriorate. Though Abdunafi
was referred to a job as late as December 1970 and was
referred out again in January 1972, working 1,207 hours that
year, there is no record of any referrals during 1971 though,
according to Riggi, the construction industry was well off
economically in the early seventies. The personal feud
between Riggi and Abdunafi, in particular the questioning
by Abdunafi of the union's right to refer out pensioners to
better jobs, began some time in 1970 and culminated in
Abdunafi's filing charges on May 28, 1971. If Abdunafi's
failure to work in 1971 can be attributed to his dispute with
Riggi and the union hierarchy, it must be attributed to the
activity in which he participated in 1969 and 1970 since his
referrals ceased as of December 1970, long before he filed his
first internal charges against Riggi on May 28, 1971. Indeed,
Abdunafi testified that he received no referrals either before
or after his filing of the charges against Riggi. Clearly, if he
was denied referrals immediately prior to the filing of those
charges, those charges were obviously not the particular
occasion for discrimination. More likely, the argumentation
which occurred prior thereto at the union meetings was the
reason why Abdunafi received no referrals whatsoever in
1971. Though Abdunafi continued to actively pursue his
campaign against Riggi and the union hierarchy throughout
1971, 1972, and 1973, the Union once again began in
January 1972 to refer him to jobs, and in that year he again
worked in excess of 1,200 hours. Though the question is not
entirely free from doubt, it would appear that Abdunafi's
appeal and numerous letters to the International which
began late in 1971 brought about his once again being
referred to jobs in 1972. In any case, there being no other
113
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
explanation as to the reason for the sudden change in Riggi's
policy concerning Abdunafi's referral," I find that his failure
and refusal in 1971 to continue to refer him to jobs as in the
past was due to the internal friction which developed
between them because of Abdunafi's vociferous objections to
Riggi's control of the hiring hall system and other policies
practiced by Riggi and the Union.'5 Moreover, though
Abdunafi, in 1970 and prior thereto, had on occasions been
appointed by Riggi as steward and foreman on certain jobs,
from 1971 on he never again received such appointments. '
Jobs as foreman or steward were particularly prized, since
foremen were guaranteed a 40-hour week and received
premium pay, while stewards were, by contract, always the
last men to leave the job. For lack of any explanation as to
why Abdunafi was no longer referred to any job as foreman
or steward after 1970, I must conclude that it was due to the
fact that Riggi was in sole control of such appointments and
no longer enjoyed a comfortable relationship with Abdunafi.
The record is clear that Riggi was responsible for the referral
of all stewards and some (noncompany) foremen, and
admittedly appointed the same individuals to these positions
with great frequency. When his relationship with Abdunafi
deteriorated, he no longer desired to have Abdunafi act as
steward on the job and so no longer appointed him as such.
His failure to refer Abdunafi either as steward or as laborer
in 1971 after having done so previously, following fast on the
heels of the breakdown in the relationship because of
Abdunafi's dispute with Riggi and the union leadership over
internal union policies, indicates a discriminatory cause and
effect, as well as the existence of animosity harbored by
Riggi toward Abdunafi. The proscriptions of Section 10(b),
however, prevent any findings of violation with regard to the
1971 failure to refer, but the evidence of animosity to be
drawn from the failure to refer in 1971 is available as
background information to support any later findings.
" Riggi testified that he did not discriminate against Abdunafi in the 1970's
and that Abdunafi did not work as much as he could during these years
because he did not shape up consistently, he did not shape up early enough, he
refused jobs to which he was referred, and certain contractors did not want
Abdunafi working for them. I have already found that Abdunafi did, in fact,
shape up fairly regularly and that whether he reported early or late had no
bearing on his failure to be referred because other individuals were referred
out in preference to him even when they arrived at the hiring hall after he did.
With regard to his refusing particular jobs, Repondent offered no evidence
and its witnesses described no particular incidents wherein Abdunafi was
supposed to have rejected any jobs offered to him prior to 1975. 1 find,
therefore, that no referrals were made to Abdunafi in 1975 and he refused
none. Respondent's contention that Abdunafi was rejected by certain
contractors was not adequately supported by the evidence.
" In Respondent's very able brief, counsel notes that in a letter dated
August 9, 1971, Abdunafi stated, "I have been out of work for quite a while
due to an accident on the job." Respondent argues in its brief:
It is thus clear that in his ([later] letter to Ford, [not in record] Abdunafi
was attempting to buttress his case with the Board by stating that he did
not work in 1971 because he filed an intra-union charge. When he wrote
the 1971 letter, however, three years before filing the charges with the
Board, he thus set forth the truth, i.e., that he did not work in 1971
because he was injured.
Respondent thus argues that Abdunafi used his 1971 loss of employment as
an afterthought to support his later charges. I do not, however, read the
evidence as does Respondent. The reference to the injury in the August 9,
1971, letter does not state that the injury occurred in 1971 nor that Abdunafi's
reference to being "out of work for quite a while due to an accident on the
job" necesarily refers to any loss of work incurred in 1971. On the contrary,
Abdunafi credibly testified that the injury and concomitant loss of work to
According to union records received into the record by
stipulation, Abdunafi once again began to work under the
jurisdiction of the Union in January 1972, shortly after he
complained to the International about Riggi, and worked for
a total of 1207 hours that year according to these records.
Abdunafi conceded that he worked in excess of 1,200 hours
in 1972. These jobs varied in length from I to 2 days to one
which lasted for 725 hours from August through December.
Abdunafi protested short jobs of 1 or 2 days or I or 2 weeks
and testified that the long job was obtained by him through
Nick Farmer, who was foreman on the job. He conceded,
however, that all work in the Union's jurisdiction was
obtained directly or indirectly through Riggi. Riggi testified
with regard to the 7 jobs listed on the union document
stipulated into the record, at which Abdunafi worked in
1972, that he referred him to almost all of them. I credit
Riggi's testimony. Riggi testified also that during the early
seventies he offered Abdunafi jobs which he refused.
Abdunafi admitted that he protested receiving jobs of short
duration, but denied that he ever refused referrals for this or
any other reason during this period. With respect to this
testimony I credit Abdunafi, particularly in light of the fact
that the record indicates that Abdunafi worked on several
jobs of short duration in 1972 and Nick Farmer testified that
he never heard Abdunafi refuse work.
Although the 1,207 hours worked by Abdunafi in 1972
compares well with the 1,133 hours worked by the average
member, according to the documents received into the
record, John Corsentino, who was in part responsible for
their preparation, conceded that some members may have
worked a great deal more than others, and this is obviously
quite true since even members who worked just a few hours
or who did not work at all were averaged into the figuring.
Similarly, a document received into the record which
indicates that all laborers working in the Union's jurisdic-
tion, both members and nonmembers together, worked on
which he referred in the August 9, 1971, letter occurred back in 1969. The
union records indicate that Abdunafi worked fewer hours in 1969 than he did
either the year before or the year after and thus, to some degree, support his
testimony. Abdunafi may well have included in his letter of August 9, 1971, to
the International a reference to his earlier loss of employment due to injury
merely to emphasize his adverse financial condition. Moreover, elsewhere in
the letter Abdunafi states:
I am looking for some constitutional modifications that will afford
better protection of my rights as well as those of others ....
A roster would afford some protection. It would also guarantee that
dues paying members with books have jobs before non-bookmen and
college boys were sent on jobs.
Along with the August 9, 1971, letter to the International, Abdunafi
enclosed a copy of his May 28, 1971, charges against John Riggi. These
charges state:
I have been out of work for six months and other men have been put to
work several times during this period. Approximately 40 new members
have been brought into the local and given jobs, and I was not considered
once. It seems only a certain few qualify for the better jobs. I feel that a
new system of hiring from the hall is a must.
Thus, a fair reading of the August 9, 1971, letter together with the enclosed
charges of May 28, 1971, makes it clear that Abdunafi was complaining at the
time that he was not being referred to jobs because of the way Riggi controlled
the referral system. Respondent's position that Abdunafi did not work in 1971
because of an injury is untenable, as is its position that Abdunafi's claim of
discriminatory motivation was an afterthought utilized to buttress his charges
with the Labor Board filed several years later.
" On one job, Abdunafi was the only laborer and for this reason did the
paperwork usually done by the steward.
114
LABORERS, LOCAL 394
an average of 1,251 hours in 1972, is not of inestimable value
since it includes the total number of people who worked in
1972 regardless of how few hours they worked or desired to
work. Corsentino testified that the lists include students who
perhaps worked only a few hours, other individuals who
chose to work only for a day or two, still others who work
only when their unemployment runs out, as well as steady
employees who work regularly. The figures are thus useful in
comparing the hours worked by Abdunafi with the "yearly
average hours per man" as appears on the documents, but
useless as a basis for determining whether Abdunafi was
treated fairly compared to other individuals who sought
employment as regular or steady employees.' For if an
individual is ready, willing, and able to work a 40-hour week
for 52 weeks a year, and by the grace of the business
manager is referred out to the choice jobs so that he does, in
fact, work those 2,080 hours, that number of hours when
added to the number of hours worked by one summer
student, perhaps 20 hours, would average out to 1,050 hours
per each man. It is the essence of Abdunafi's complaint that
he is ready, willing, and able to work full time as a steady
employee and has been denied that right by Riggi because of
discriminatory reasons. Neither Abdunafi nor the General
Counsel concedes that justice is served by Abdunafi's having
received the average number of hours, calculated by dint of
the questionable calculations employed in synthesizing the
documents furnished by the Union in order to bolster its
arguments. The General Counsel argues that Abdunafi
should be considered as a ready, willing, and able applicant
for referral who reports regularly to the hiring hall and
thereby deserves to be referred out to a sufficient number of
jobs and hours to permit him to make an adequate living.
Assuming, at this point for the sake of argument, that
Abdunafi did report regularly to the hiring hall, and this I
have found, and was ready, willing, and able to work, as I
have not yet determined, I must agree with the General
Counsel that the entity entitled "yearly average hours per
man," calculated by adding all of the hours worked by
individuals who desire full-time employment to all of the
hours worked by those who do not, should be given no
consideration and rejected as irrelevant.
As noted above, Abdunafi continued his running battle
against Riggi and his control of the referral system and
against the Union's executive board throughout 1972 and
1973, filing charges against them and appealing their
decisions through numerous communications with the Inter-
national. In 1973 he broadened his attack to include as a
target the New York regional office of the International, and
appealed one decision of the general executive board to the
next regular convention. It was in 1973 also that Riggi
brought charges against Abdunafi which resulted in his
suspension, action which I have found indicative of the
existence of animus though, of course, not violative of the
Act.
In 1973, while the battle raged, the number of hours
Abdunafi worked dropped to less than half of those he
" Respondent's own witnesses testified that regular employees work
in
excess of 2,000 hours per year.
" Riggi testified that he referred Abdunafi to five of the jobs which
he
obtained in 1973.
" Riggi testified that Abdunafi was fired from one job and quit another in
1973. Supporting testimony from the contractors was not, however, presented,
worked the previous year. That year he worked on 7 jobs
amounting in total hours to 519-Y, 122-Y of which were on
the one big job which he had obtained the previous year
through Nick Farmer. The yearly average hours per man
working out of the local Union, however, remained fairly
constant, when compared to 1972, at over 1,000 hours.
Clearly, for whatever reason, the number of hours Abdunafi
worked had again dropped disproportionately as compared
to those he worked the previous year and those worked by
other "average" workers both in 1972 and 1973. In 1973
Abdunafi worked at three jobs lasting 2 days each and three
jobs lasting from 2 to 4 weeks each. All work was obtained
again directly or indirectly through Riggi," who maintained
complete personal control over the referral system despite
Abdunafi's efforts. Although it is clear that whatever work
Abdunafi obtained in 1973 was through Riggi, it is not clear
how much work he would have received if the hiring hall
used a referral system based upon objective criteria and
guidelines to insure a fair and impartial distribution of
available work. Once again Respondent argues that Abduna-
fi did not work in 1973 because he did not want to work.
Abdunafi alleges that he was ready, willing, and able to work
but was skipped over by Riggi, who made his referrals on the
basis of unfair considerations. Neither Respondent nor the
General Counsel offered evidence in depth" concerning
specific incidents which may or may not have occurred in
1973 bearing on the subject of Abdunafi's job assignment in
that year, presumably because any findings of violations in
1973 would have been barred by Section 10(b). However, for
background purposes I would tend to accept as more
probable Abdunafi's description of what occurred than
Riggi's. After all, Abdunafi had been waging the battle
against Riggi's personal control of the referral system for
years and had complained vociferously in person and in
innumerable pieces of correspondence about how he and
others had been victimized by Riggi's failure to refer them to
jobs. I cannot believe that Abdunafi continued to wage his
battle for a reformed referral system, complaining so bitterly
about Riggi's failure to refer him, while all the while,
according to Riggi, he did not want to work at all.
Abdunafi's testimony to the effect that he was always ready,
willing, and able to work but that Riggi simply would not
refer him out is far more consistent with the facts. Riggi
stated that Abdunafi refused jobs that were offered, but the
record indicates that of the six jobs which he obtained in
1973, three were for only 2 days each. If, as Riggi contends,
Abdunafi refused jobs and would not accept jobs expected to
run for only short periods of time, why would he accept
those three 2-day jobs? I find that the weight of the evidence
indicates that Abdunafi continued throughout 1973 to shape
up fairly regularly in an honest attempt to obtain employ-
ment and did not refuse any jobs offered to him, but that he
was referred to far fewer jobs than he had been in the past. I
further find that inasmuch as the amount of work available
in 1973 was substantially equivalent to that of the previous
year and the average hours worked by individuals referred
nor was any satisfactory reason given for not presenting supporting witnesses.
I therefore give no weight to Riggi's testimony concerning Abdunafi's being
fired from one job and quitting another in 1973. insofar as such may reflect
upon Abdunafi's desire to be employed during that period. Carrington's
brief
testimony on the subject was too skeletal to be of value.
115
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out of the hall remained about the same in 1973 as in 1972
while Abdunafi's hours decreased substantially, Riggi's
failure to refer Abdunafi was caused by his passing over
Abdunafi in favor of other individuals. I also conclude that
in light of Abdunafi's demonstrated untiring efforts to
undermine Riggi's control of the referral system and the
animosity reflected by the Union's and Riggi's decision to
suspend Abdunafi in retaliation for Abdunafi's filing of
charges against Riggi and the executive board, the refusal to
refer Abdunafi to jobs which were available and to which
Abdunafi was ready, willing, and able to be referred was
discriminatory and but for Section 10(b) would be found
violative of the Act.
As above noted, throughout 1974 Abdunafi continued to
battle Riggi's control of the referral system, writing letters to
the International about alleged abuses and charging the
International with ignoring the situation. He complained of
the deprivation he suffered because of the situation. When
told by the International that there were no abuses nor any
referral system in effect and that he ought to seek employ-
ment on his own, he sought personal audience with the
International. He was advised that his request had been
forwarded to the New York regional office of the Interna-
tional, an agency which Abdunafi had already complained
about.
During 1974, while Abdunafi continued his battle against
the Union, Riggi, and the referral system which he was
trying to reform, he continued to shape up, seeking employ-
ment through the very system he was attacking, just as he
did in 1973. Again, he received no referrals as steward s or
foreman but did work for a total of 1,017 hours, including
some referrals of I or 2 days, but others of a much longer
and more significant and satisfactory duration. In 1974
Abdunafi worked for seven different contractors. He ob-
tained these jobs through the Union, but he got the longer
jobs through the assistance of Nick Farmer who was either
steward or foreman on these jobs and who intervened
successfully on Abdunafi's behalf to get him referred.
Nevertheless, all referrals were only possible if Riggi or his
assistants consented, which they did. Although Abdunafi's
hours were approximately the same in 1974 as the average
hours per man, he maintains that he was still being passed
over by Riggi and that the choice jobs, steady jobs and those
lasting for a year or two, were being given by Riggi to others
whom he favored. Riggi testified that in 1974 he referred
Abdunafi to about five jobs but admits that during the years
1971 through 1975 when he became aware of a particularly
good job through participation in prejob conferences he did
not tell Abdunafi about it, nor did he tell Abdunafi when he
learned in advance that there would be a steward's job
opening up. Rather, Riggi would advise his stewards when
certain choice jobs were coming up. They would work more
" The previous year he performed the duties of a steward on one job where
he was the only laborer present and therefore the only one who could perform
such duties. Though there is testimony in the file to the effect that Abdunafi
was shop steward in 1974, this is apparently an error, for the only shop
steward reports in the record which were signed by Abdunafi are dated 1973.
The date 1974 was mistakenly supplied by the cross-examiner in his question
and was apparently overlooked by Abdunafi in his reply.
" Robert Farmer testified that Abdunafi shaped up most of the time,
arriving between and 8:30 a.m., and that Riggi referred applicants to jobs
between 6:30 and 7 a.m. but also after 8 a.m. Corsentino and Renda testified
likewise. Timothy Nickles testified that Abdunafi shaped up, but usually
than other individuals, and, grudgingly, Riggi admitted that
certain individuals kept reappearing as stewards and as
foremen, Urso, Renda, and Carrington, among others. The
essence of Abdunafi's complaint is that after 1970 other
individuals, those in Riggi's favor, received jobs as foremen
and stewards and as such obtained the best referrals while
Abdunafi was not so chosen. Riggi's testimony fairly well
supports Abdunafi's contention. Although Riggi testified
that Abdunafi refused jobs in the early 70's, apparently
referring to 1974 as well as earlier years, no evidence
concerning any particular refusal was offered, and, in light
of the fact that Abdunafi accepted one -day job and one 2-
day job in that year, I credit Abdunafi over Riggi and find
that Abdunafi did not refuse any job referrals in 1974.
Abdunafi's last job in 1974 came to an end in October of
that year. In that month he filed charges with the Equal
Employment Opportunity Commission and on December
12, 1974, he filed charges with the National Labor Relations
Board alleging that the Union caused Clayburn Construc-
tion Company to lay him off because of his intra-union
activities and that the Union operated its hiring hall in a
manner which discriminated against applicants who were
not friendly with its business agent. The Regional Director
for Region 22 of the National Labor Relations Board on
February 21, 1975, refused to issue a complaint based on
Abdunafi's charge and on April 25, 1975, his appeal was
denied.
Abdunafi, as noted above, continued to speak out against
the policies of Riggi and against the union hierarchy and
their policies throughout 1975. Over and above the criticism
of union policies which resulted in heated arguments at
union meetings, the unfair labor practices filed by Abdunafi
were also discussed.
Despite the animosity which existed between Abdunafi
and Riggi, the internal charges and the filing of the unfair
labor practices, Abdunafi continued to shape up at the hiring
hall, and though he reported to the hall later" than some
individuals, he also reported earlier than many other
applicants for referrals who were referred out while Abduna-
fi was not. Though Abdunafi named 15 specific individuals
who, he testified, were among over 100 persons who fit into
this category in 1975 and thereafter, none of them was called
by Respondent to deny this allegation. Abdunafi also
testified that individuals who had just come off jobs were
immediately sent out again on new jobs while he "just sat
there." Abdunafi named individuals in this category and
none took the stand to deny it. Indeed, the Union's records
clearly reflect that Abdunafi did not work in 1975 at all,
whereas many other individuals were referred out to 5, 6, 7,
or more jobs in that year.
arrived after 8 a.m. after most referrals had been made, which was between 6
and 7:30 a.m. John Corsentino at one point testified that Abdunafi shaped up
only about 40 percent of the time, most of the time after 8 a.m. Elsewhere,
Corsentino testified that the majority of the time he did not know what time
Abdunafi reported for work and sometimes did not notice whether or not he
was there at all. I found Corsentino's testimony unreliable on this point.
Corsentino admitted that he never referred Abdunafi to any job. Abdunafi
explained credibly that whereas he used to report to work early, when it
became clear that he would not be referred out anyway, he began to report at
a more reasonable hour.
116
LABORERS, LOCAL 394
Adolph Farmer supported Abdunafi's testimony by stat-
ing that Abdunafi reported for shape-up regularly in 1975
and remained at the hall until it closed at 9:30 a.m.
Though Abdunafi continued to shape up at the hall on a
fairly regular basis, he did not work again after filing his
charges with the National Labor Relations Board in Decem-
ber 1974. Throughout 1975 he did not work a single day.
Abdunafi testified that Riggi did not refer him to any job in
1975,51 though he was present many times in the hall when
other individuals were referred out. On July 1, 1975,
Abdunafi filed the charge which eventually resulted in
issuance of a complaint in the instant case based upon
Respondent's alleged failure and refusal to refer him and
Adolph Farmer for employment because they filed charges,
gave testimony, or engaged in intraunion activities in
opposition to Respondent-Union's leadership. Though Riggi
testified, contrary to Abdunafi, that he had referred Abdu-
nafi to jobs between December 1974 and July 1, 1975, no
testimony nor any other evidence was adduced mentioning
any particular job referral to Abdunafi until August 1975,"
at which time, according to Riggi, he was told by counsel to
keep a record of job referrals offered to Abdunafi which
could be used in the event of litigation.
Inasmuch as Abdunafi credibly testified that Riggi did not
refer him to any jobs whatsoever after he filed his December
1974 charge with the Board and thereafter filed a new
charge on July 1, 1975, based on Riggi's failure and refusal
to so refer him, I find, on the basis of his testimony and the
supporting testimony of General Counsel's other witnesses,
as well as the timing of his sudden failure to obtain any work
after filing his December charge and the lack of any
testimony from Respondent's witnesses concerning any
specific job referrals during this period, that the Union failed
and refused to refer Abdunafi to jobs from January 1975
through July 1, 1975, as charged, because he filed a charge
with the Board.
Following Abdunafi's filing of the July 1, 1975, charge,
according to Riggi, he began to note down referrals and
attempts to refer Abdunafi when he was not at the hall, the
purpose being to aid him in his testimony if the charge filed
by Abdunafi should ever result in a hearing. Riggi testified
that these notes were not, however, all-inclusive. Although
Riggi testified that the first notation he made concerned a
referral which he made to Abdunafi in August 1975, his
notes" bear no reference to the month of August. The job he
recalled offering to Abdunafi in August 1975, according to
Riggi, was the August Arest (or Arace) job for Diesel in
Union, New Jersey. Riggi did not say anything more about
this alleged offer but there are records that Diesel had a job
in Union where Arthur Carrington was the steward from
January to October 1975. Carrington testified that one
morning" while at the hall between 6:45 a.m. and 7 a.m. he
" Abdunafi discussed an offer of a job "climbing" with Carrington which he
testified occurred in 1975 or 1976. From other testimony this job offer would
appear to have been made in 1976.
" Corsentino testified concerning an alleged referral of Abdunafi to the
Sherling Corporation or the August Arest (or Arace) Diesel job, which he
refused and to which member Artis Jackson was sent instead. Corsentino
testified that this was in June. Later Corsentino denied that Artis Jackson was
referred out instead of Abdunafi. He then stated that he was not present
during the alleged referrals. I find Corsentino's testimony too confused to be
credited.
Carrington testified that he asked Riggi to send Abdunafi out to work for
talked to Riggi about sending Abdunafi to the Diesel job for
a few days, and that Riggi went out into the hall and called
Abdunafi but there was no response. Neither Riggi nor
Carrington testified as to whether or not Abdunafi was
present in the hall. Carrington therefore took a nonunion
member, Artis Jackson, in Abdunafi's stead. Corsentino
testified that Artis Jackson, a nonunion member, was
referred out to the August Arest job in June 1975 when
Abdunafi refused it. At a later point in his testimony
Corsentino denied that he was present during the incident.
Abdunafi denied that he was referred out to any job in
August 1975.
From the totality of testimony of Respondent's witnesses
concerning the alleged referral of Abdunafi to the Diesel job
in Union, New Jersey, in August 1975, I1 conclude that the
testimony of Respondent's witnesses is unreliable. None of
them agreed on the approximate date of referral; they did
not agree on the precise name of the contractor or job
involved so that they may or may not have been discussing
the same job; and there was no agreement as to whether
Abdunafi was present in the hall when the alleged job
referral was made. In light of the facts that there was little or
no agreement among Respondent's witnesses as to this
occurrence and that I would credit Abdunafi over any one of
them on this matter, I find that the alleged referral was
never made. Moreover, if Riggi did offer the job to Abdunafi
by calling out his name in the hall, and if Abdunafi was not
present at the time that Riggi called out his name, I consider
such a referral no referral at all. For Corsentino admitted
that it was unusual for an individual's name to be called out
by Riggi when that individual was not present. From the
record it is clear that the usual procedure was for Riggi to
obtain the job, check the hall to see who was present, then
call one of those present and assign him the job. The
exception would occur when a contractor requested someone
by name, and Riggi would call out that person's name to
make sure that he was not available for the job for which he
had been specifically requested. In the instant case, it is just
as likely, granting the animosity of Riggi, Corsentino, and
Carrington toward Abdunafi, that they called out Abduna-
fi's name only after ascertaining that he was not there, in
order to support Respondent's position beforehand that they
had offered Abdunafi referrals which he refused either
personally or by his absence. I find that the practice
undertaken by Respondent's hierarchy, after Abdunafi filed
his July 1, 1975, charge, of calling out his name to offer him
referrals when they knew that he was not present, when this
practice was clearly an exception to the general practice in
making referrals, was an action undertaken in bad faith,
obviously for the purpose of attempting to manipulate the
evidence. I find the same lack of good faith in all incidents
that occurred in August 1975, and in the months and years
him at the Diesel job in May. The month of May was supplied to the witness
by counsel in his question, not by the witness independently. According to
Carrington, when he asked Riggi for Abdunafi, Riggi went out into the hall
and called for Abdunafi, but when there was no response, Riggi sent Artis
Jackson, a nonmember, to the job with Carrington. Riggi testified that the
August Arest (Arace) job was offered to Abdunafi in August. If the job was
offered at all, I find it would have been in August though Riggi did not note it
down at the time.
" See Res. Exh. 25.
" Carrington placed the incident in May rather than August as had Riggi.
117
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that followed, wherein Riggi went out into the hall and
offered Abdunafi a job when he was not present and then, in
many cases, noted the incident down as a referral. It seems
rather basic that an offer made to an absent individual can
hardly be accepted and is therefore not an offer at all.
Corsentino referred to an August 18, 1975, job offer when
he was not present. To reiterate, this was not an offer,
particularly in the absence of any indication that, when
Abdunafi did arrive at the hall, he was apprised by Riggi of
the alleged referral. Moreover, if this was a different referral
than the one previously discussed, why did not Riggi testify
concerning this matter?
Finally, Corsentino testified concerning a two-man job
which Renda received by phone on August 1, 1975. A
referral slip was made out. According to Corsentino, Renda
went out into the hall where five men were present and
asked for two men. Though Abdunafi was one of the five
individuals present at the hall, he did not ask for the job. On
the other hand, he was not offered the job by Renda. Renda
did not testify concerning this incident, nor did Abdunafi.
However, in light of the situation at the hall at the time, I do
not consider what occurred to be a referral offer. Abdunafi
was not offered the job and, since he had received no
referrals since the previous December, though present in the
hall, while others who had arrived later were referred out, he
certainly had no reason to believe that if he asked for the job
he would have gotten it. As it was, two other individuals
were referred to the job. Though Corsentino denied that
Abdunafi was a "marked man," he admits that there was a
special interest in him at the time; and during all of the years
during which Abdunafi was struggling with the hierarchy
concerning the hiring hall system, Corsentino admitted that
never once did Abdunafi ask Riggi for work. Since the
system consisted of Riggi or his assistants referring men to
jobs by name, the incident described herein does not appear
to me to amount to an offer of a referral to Abdunafi or a
refusal of a referral by him. Granted that it would have done
his case no harm had he jumped off the bench and asked
Renda for the job, still Abdunafi had not been referred to a
job for 10 months and there was no assurance that if he had
requested the job, he would have been referred.' In any
event, he was not personally offered the job and did not
personally refuse it.
Of considerable interest also is the fact that Corsentino
testified that the jobs offered on this occasion were taken by
Renious Edwards and Robert Farmer. Neither Edwards nor
Robert Farmer testified as to this occurrence, though both
were present at the hearing and were available for question-
ing. Further, the records supplied by the Union indicate that
Robert Farmer did not work at all in 1975. These additional
facts cast serious doubt on the accuracy of Corsentino's
description of what actually occurred during this incident.
Riggi testified sketchily that he referred Abdunafi to the
McCullum" job in 1975. He stated with some hesitance that
the acting foreman on that job was a company foreman
named Somerville but could not recall who the steward was.
He did not describe the circumstances surrounding the
alleged referral. Riggi's notes reflect that on September 23,
' Other individuals who specifically requested jobs were denied those jobs.
" The company's name appears as McConneough in the transcript.
" For the record, Riggi denied that referrals made to Abdunafi were scrap
1975, at 7:42 a.m. Abdunafi refused to go to work at
American Cyanamid for McCullum. The notes also contain
the words, "I or 2 weeks work." Abdunafi emphatically
denied being referred out to the McCullum job at American
Cyanamid and insisted that unless it were a Saturday or
Sunday, which it was not, he would have been at the hall
that day. Under cross-examination, however, Abdunafi's
affidavit was quoted as saying, "I can't remember being
offered work at American Cyanamid for McCullum Con-
struction Company. I would not have taken that job for one
to two weeks because I knew better jobs were coming up and
I needed more than one or two weeks work."" Abdunafi
agreed that he made the statement which appeared in his
affidavit. The following testimony was adduced from Abdu-
nafi:
Q. How did you know how long the job was?
A. I didn't say there was a job down at McCullum. I
said if it was for one or two weeks, that is all I had been
getting, I wouldn't take it anyway, because I had been
out of work for two or three years.
Q. If you did not know anything about the job, I
must ask you or Mr. Abrams as to why you volunteered
a comment as to the duration of the job.
A. I just-It was on the paper, I told you I didn't
know anything about a McCullum job.
Q. You offered the statement on the affidavit that
you wouldn't take a job for one or two weeks?
A. I said I wouldn't have taken a job at that
particular time because I had also given to Mr. Abrams
. . . a list of jobs that were coming up and there has
been a policy of practice of referring the guys out,
getting rid of them, so these other jobs can be given to
special people.
Although this testimony of Abdunafi does not necessarily
prove, in and of itself, that he was offered the McCullum
job-for he may have learned from the individual taking the
affidavit that the McCullum job was for only one or two
weeks, and after learning its length volunteered that he
would not have taken it even if offered-his statement
clearly reflects his attitude toward short jobs and adds
weight to Respondent's contention that he did not want to
work.
Riggi testified that he could recall offering Abdunafi a job
in 1975 with Gordon Construction. The record contains
evidence that in 1975 there were at least four Gordon
Construction jobs going on one of which was still going on in
September. According to Riggi's notes, on September 24 at
8:45 a.m., he called for four men to go to work on the
Gordon job and, although Abdunafi was present at the time,
he was not chosen for the job, nor did he ask for it. Three
union men and one nonunion man filled the requirements.
Abdunafi testified that he was not offered work on the
Gordon job. The testimony of Riggi and Abdunafi is not
inconsistent. Riggi did not refer Abdunafi to the job by
name, though from the overall testimony it is clear that most
referrals were made by calling out individuals by name and
referring them to specific jobs. It is equally clear that when
jobs of short duration, but affirmed that he may have offered Abdunafi some
jobs lasting I or 2 days.
118
LABORERS, LOCAL 394
Riggi came out and announced that there were four jobs
available, Abdunafi did nothing to avail himself of the
opportunity to work. Thus, it would appear that the
personal antipathy between the two individuals, which arose
because of Abdunafi's protected activities, manifested itself
on this occasion in the form of Riggi's refusal, in the face of
an outstanding charge, to refer Abdunafi to the Gordon job
by name and by Abdunafi's refusal, because of stubbornness
or pride, to ask for the job. Again, there is no guarantee that
Riggi would have given Abdunafi the job even had he asked
for it, and so it was not a referral nor a refusal of a job as
Respondent contends. Though both are to some degree
responsible for Abdunafi's not being referred to the Gordon
job, the true fault lies with the referral system itself whereby
Riggi alone was in complete, sole control of referrals, for
since no objective criteria whatsoever were utilized, there
was nothing standing in the way of Riggi's making his
referral decision on a strictly personal basis, be that decision
invidious or otherwise. He chose not to refer Abdunafi.
Riggi testified that in 1975 he called out Abdunafi's name
in order to refer him to the Cap-Con job but he thought that
Abdunafi was not present at the tire. According to Riggi's
notes, it was at 8:10 a.m. on September 24, 1975, just 5
minutes before he announced the need for four men at the
Gordon Construction job, that he announced the need for
six men for I day's work at Cap-Con. The notes indicate,
however, that Abdunafi was present, but did not move. The
Union's records support Riggi's notes to the extent that they
indicate that there were at least three Cap-Con jobs in 1975,
one of which was going on in September. Once again,
Abdunafi denies that he was referred to the Cap-Con job on
September 24, 1975.
The same analysis lends itself to the Cap-Con incident as
to the Gordon Construction incident. In brief, Riggi did not
refer Abdunafi; Abdunafi did not volunteer for work; and,
had he done so, there is no guarantee that he would have
been awarded the job. Once again, the failure of the Union to
use other than purely subjective criteria, together with
Riggi's personal dislike of Abdunafi because of his filing of
the charge with the National Labor Relations Board and his
other protected activities, may have prevented Abdunafi
from getting the job, although there is no way of telling from
the record whether other individuals who may or may not
have been referred were more deserving of referral. The fault
lies with the system.
Riggi testified that in 1975 he offered Abdunafi work on
the post office job in Elizabeth, where Williams Construc-
tion was the contractor. Riggi's notes contain an entry dated
October 1, 1975, which indicates that Abdunafi turned down
this job, which was expected to last between 2 and 3 weeks.
They also indicate that there was a black shop steward on
that job who was a close friend of Abdunafi. The union
records indicate that in 1975 R. Williams was the contractor
on one or more jobs and that the black union members who
worked on the Williams job(s) were Renious Edwards,
Resbeth Farmer, Ernest Gissendaner, George Neal, Prince
Ruth, and Robert Farmer. These records show that of the
" Respondent's counsel suggested during examination of Abdunafi that
Resbeth Farmer was the steward to which Riggi's notes referred.
I A. M. Gregors was a post office job in Elizabeth, and it is likely that R.
Williams was another contractor on the same job, since in most cases
individuals who worked for Williams in 1975 also worked for A. M. Gregos
the same year.
six blacks who worked for Williams Construction in 1975,
only Renious Edwards and Resbeth Farmer" served as
stewards: Edwards for Di Girolamo in January, and Farmer
for A & M Gregos ' in June and July, but not in October.
The records do not therefore appear to support Riggi's
notes. No witnesses were called to testify in support of this
alleged offer. Abdunafi specifically and emphatically denied
being offered this job. I credit Abdunafi and find that no
such referral was made. I further find that the reliability of
Riggi's notes is somewhat undermined by the fact that the
October 1, 1975, entry refers to the black steward (presum-
ably Resbeth Farmer) on the post office job, while records
indicate that he was steward on that job only in June and
July of that year.
John Corsentino testified that Abdunafi's name was called
out in November 1975 to work at Bearley High School in
Kenilworth. Abdunafi was not, however, present at the time.
Corsentino stated that he could recall the dates because he
was personally involved as the steward on the job and was in
the hall at the time the referral was made. Corsentino
testified further that on this occasion, "No one was aware at
the time that I was in the hall or he (Abdunafi) was out of
the hall."' He stated that Riggi opened the door and called
out Abdunafi's name with the intention of sending him to
work at the Bearley High School construction site in
Kenilworth. Corsentino did not note down anywhere the
date of this incident or precisely what occurred but testified
that he was present when Riggi wrote it down. Riggi did not
testify to anything that occurred in November 1975. Rather,
he stated that the Bearley job was in 1976. The union
records indicate that Corsentino was steward on the Trues-
dale job (presumably the Bearley High School job) in
Kenilworth in August through October 1975 and that no
one else served in that capacity during the year. Riggi, unlike
Corsentino, testified that the alleged Bearley referral oc-
curred in 1976. His notes indicate two entries for November
1975, one dated November 1, 1975, with an accompanying
time notation-7:40. The note states simply, "Wakil didn't
show up yet!" The other entry, dated November 18, 1975,
states, "Call Wakil at 7:31 a.m. to go to work at Johnny
Corsentino's job. Not here yet!" Other union records
indicate that Corsentino did not work anywhere else in 1975.
Abdunafi categorically denied being offered any job in
November 1975. With respect to the fact that Riggi called
out Abdunafi's name on two occasions in November 1975, I
find that since Abdunafi was not present at the time, he was
not referred out. It also seems obvious that if Corsentino or
Riggi were interested in having Abdunafi on that particular
job, it would have been easy enough to contact him
beforehand to let him know of the opening, or offer it to him
later that day when he arrived at the hall. The matter, as far
as the record reflects, was never discussed with him
afterwards. If Riggi was anxious to refer Abdunafi, to avoid
issuance of complaint on the charge which was already on
file, he could easily have made arrangements with him, as he
did with other individuals, to have him report for a
particular job referral. He chose not to do so, but rather to
' Also referred to in the record as Bearslcy or Brearley.
'' The statement, volunteered by Corsentino while on the stand, appears to
have been made to explain the lack of witnesses.
119
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
call out Abdunafi's name, knowing full well that he was not
present, then to jot down the incident in order to build a case
against Abdunafi in preparation for the hearing. I can reach
no other conclusion as to the purpose of this charade in
which Respondent's officers participated.
Riggi testified that Abdunafi refused a referral to a job
working for Plainfield Plumbing. His notes reflect that on
December 1, 1975, at 8:15 a.m. Abdunafi refused to go to
work for Plainfield Plumbing at the Thomas Jefferson
School on a job which had just started and which was
supposed to be a long job. John Corsentino supported Riggi
by testifying that Abdunafi's name was called out for the
Plainfield Plumbing job, the new Elizabeth High School.
The union records which reflect where stewards worked in
1975 do not mention Plainfield Plumbing or any job in
Elizabeth or elsewhere going on during December 1975.
However, other documents indicate that one member of the
Union did work at one time or another in 1975 for Plainfield
Plumbing for 48 hours. To this small extent, the records
support the testimony of Riggi and Corsentino. Abdunafi,
however, when asked on cross-examination if he had not
been offered a job on December 1, 1975, "at the new Thomas
Jefferson High School job where the contractor was Plain-
field Plumbing," pointedly and forcefully stated, "There has
never been a new Thomas Jefferson High School job." When
asked, "Was there any Thomas Jefferson High School job?"
he replied, "Not at the time. There is now." Counsel at this
point abandoned the line of questioning concerning this job
and did not thereafter challenge Abdunafi's assertion that
there was no such job at the time. Robert Farmer was called
to testify concerning this alleged referral. He testified, in
support of Riggi and Corsentino, that he had heard
Abdunafi reject one job offered to him, a high school job in
Elizabeth, and that Riggi gave Abdunafi a referral slip for
the job. After stating that he heard Abdunafi reject the
referral, he testified that he did not know if Abdunafi
accepted the job or not. The inconsistency is patent. Later
Robert Farmer testified that he did not actually hear Riggi
offer Abdunafi the high school job, but that he only heard
Abdunafi called into Riggi's office and did not hear what
occurred therein. As to the "referral slip," Robert Farmer
testified further that he saw Riggi give Abdunafi a slip of
white paper the size of a referral slip but could not see the
writing on the paper and merely presumed that it was a
referral slip, although admittedly it could have been merely a
message of some kind. Still later, Robert Farmer testified
that he had heard from a third party that Abdunafi had been
offered the high school job but had turned it down. I found
Robert Farmer's testimony with regard to this matter
inconsistent and not worthy of credit. I credit Abdunafi. If
Abdunafi rejected the referral as Riggi and Corsentino
testified, he would not have been given the referral slip as
Robert Farmer testified.
Riggi testified that he referred Abdunafi to a job with
Anastasia Brothers in December 1975 or January 1976 at
the new Elizabeth High School which eventually lasted 7
months. The entry in Riggi's notes of January 7, 1976-7:25
a.m. states, "call for Wakil to go to the school (new) job-
long job-not here (Anastasia Bros.)-(send Artis Jack-
' The job lasted about 3 or 4 months, February to May.
"' Carrington identified this particular incident as March 1977 when clearly
he meant to say March 1976 since all other testimony on this subject matter
concerned the latter date.
son)." Corsentino testified in support of Riggi to the effect
that Abdunafi's name was called out for referral on this job.
Abdunafi testified that he thought he probably was in the
hall on January 7, but denied knowing anything about a
referral to any Anastasia Bros. job. From the testimony of
all witnesses I conclude that Abdunafi's name was, in fact,
called out at the hall before he arrived but for reasons stated
earlier, I do not consider this act to be a referral.
Resbeth "Nick" Farmer testified that in January 1976 he
was working at the post office job. On this occasion he went
to Riggi and told him that he needed two men to work
nights to take care of the fire at a concrete pouring and asked
him if he could have Adolph Farmer and Abdunafi. Riggi
replied, "[c]ertainly." The job was to last 2 nights and,
according to Nick Farmer, Riggi was aware of this fact.
Abdunafi and Adolph Farmer did get the job through Nick
Farmer's efforts, according to Abdunafi. Riggi's notes on the
subject contain the following entry. "January 1976-Wakil
worked at the Post Office job in the heat-Nick Farmer."
From 1975 through 1977 these few hours were all that
Abdunafi worked.
The incident would appear to support the theory that
Riggi did not so much object to Abdunafi's working as he
did making the referral himself, directly to Abdunafi, for
making a direct referral required his having to address
Abdunafi, and the record is replete with evidence that the
two men disliked each other by this time. Nevertheless, since
most of the referrals were made at the hall by Riggi's
directly addressing individuals and referring them verbally
to jobs, his refusal to do so with regard to Abdunafi because
of personal dislike for the man is, in fact, a refusal to refer
for invidious, extraneous reasons, and is violative of the Act.
His willingness to permit Abdunafi to obtain work through
other sources, namely through Nick Farmer, with his
indirect tacit approval is no substitute and does not relieve
him of his duty to refer Abdunafi to jobs as he had other
applicants for employment.
Arthur Carrington testified that he spoke to Riggi by
phone from Linden about sending Abdunafi out to work
with him on the Penn-Jersey job at the Public Service in
Linden where he was the foreman. He explained to Riggi
that the job would be a short-term job." ' Riggi replied that he
doubted that Abdunafi would come out but he would ask
him. He asked Carrington to hold the phone for a minute.
Shortly thereafter, according to Carrington, Riggi got back
on the phone and explained to Carrington that Abdunafi
would not work with him." ~ Riggi testified with the help of
his notes"' that he received a phone call from Carrington on
March 1, 1976, during which Carrington asked to have
Abdunafi sent out to the Penn-Jersey job. Riggi then went
out to Abdunafi who was in the hall and said, "Here is a
referral slip to go to the job where Artie Carrington and Leo
Charles are working." According to Riggi, Abdunafi replied
that he did not want to go on the job. Riggi's notes support
this testimony and that of Carrington. They state:
March 1, 1976 7:30-Wakil refused to go to work
(Penn-Jersey) with Art, Leo-in Public Service (proba-
bly overtime later-(??))
" Initially, before referring to his notes, Riggi testified that the incident
occurred on March 1, 1975.
120
LABORERS, LOCAL 394
Corsentino also testified that Abdunafi was referred to the
Penn-Jersey job in Linden where Carrington was the
foreman and Leo Charles the steward but did not describe
the referral with any particularity.
Abdunafi denied that he was referred to the Penn-Jersey
Public Service job but in another part of his testimony
admitted that Riggi approached him on one occasion and
said to him while out in the hall, "I have a job climbing with
Arthur Carrington. Are you afraid of heights? Do you want
it?" Abdunafi replied that he was afraid of heights and
declined the job. He noted that he had been in the hall when
the job had first started and that by the time Riggi offered
him the job, it was fully manned so that he would have been
the first one laid off. He asked Riggi why he did not refer
him when the job first opened. In any event, Abdunafi
insisted, the job required climbing and that was the reason
he turned it down. I conclude that the job climbing
concerning which Abdunafi testified and the Penn-Jersey
Public Service job were one and the same. I also conclude
that though there was an offer of a job, it was a climbing job
which Abdunafi turned down for that reason. There is no
way to know for certain, from the record, whether Riggi
knew that Abdunafi was afraid of heights and felt safe in
offering the referral for that reason. Riggi had known
Abdunafi for many years and could possibly have known
that such a referral would be rejected. At any rate, the offer
of the job was, in fact, made and rejected.
Riggi testified that later in March he made a second
referral to Abdunafi at the same Anastasia job to which he
allegedly tried to refer him previously when Abdunafi was
not present. According to Riggi's notes he called out
Abdunafi's name on April , 1976, at 7:45 a.m. to go to work
for Anastasia, but again he was not present. Carrington
testified that he was the steward on the Anastasia job and
specifically asked Riggi to send Abdunafi out to the job. He
further testified that from the information he got, Abdunafi
turned down the job. He admitted that he did not, however,
know this for a fact. When asked when he spoke to Riggi
about sending Abdunafi to the Anastasia job, he testified
that it was in June or July 1976. Corsentino testified also
that Abdunafi's name was called out in April to be referred
to the Anastasia job but he was not present in the hall.
Abdunafi testified that he believes he was present on April I,
1976," but denied rejecting any referral to the Anastasia job
on that date. I find Abdunafi was not present when his name
was called out in connection with the alleged Anastasia
referral and for reasons already enunciated, I do not
consider the fact of his name being called out in his absence
tantamount to a referral. Similarly, Riggi's notes reflect that
he called out Abdunafi's name on April 9 and 21, 1976,
when Abdunafi was not present. Both were presumably for
the Anastasia job and, since he was not present, cannot be
considered legitimate referrals.
' The forms show the name ofr the employee. the hours worked. the dues.
the vacation allowance. the credit union. and amounts for health and welfare.
training. pension, and annuity. The total remittance due shown on the forms
was: for May $4,390.63; for June $X,074.13. for July $6.381.50; and for
August $7,308.55
Abdunafi had notes concerning his probahle presence or absence from the
hall on certain days.
Carrington testified that he was foreman on the Torcon
job and asked the shop steward, John Corsentino, about
referring Abdunafi to that job. This discussion, according to
Carrington, occurred in March 1977. The job was already in
progress when Carrington started in December 1976 and
was still going on at the time of the hearing. After
Carrington asked Corsentino to have Riggi refer Abdunafi,
he was not present when Corsentino spoke to Riggi about
the matter and admitted that Riggi may or may not have
made the referral. Corsentino testified that it was on March
15, 1976, that Carrington and Corsentino had the conversa-
tion concerning the referral of five men to the Torcon job
during which Carrington allegedly suggested that Corsenti-
no see to it that Abdunafi was referred. According to
Corsentino, he brought the matter of Carrington's request
for five additional laborers to Riggi's attention and Riggi
called out Abdunafi's name that morning. Abdunafi was,
however, not present and five other men were sent out that
day. Riggi testified that Carrington was the foreman on the
Roselle Sewage Disposal job in Linden, New Jersey, where
Torcon was the contractor and that Carrington recommend-
ed that Riggi send Abdunafi out to the job. According to
Riggi, Corsentino spoke to him about Carrington's request
for Abdunafi. He called Abdunafi over and said to him, "I
have a call for a man to be referred to the Torcon job." but
Abdunafi refused the job. Abdunafi denied being referred to
the Torcon job. From the testimony, it should be noted that
Carrington and Riggi are in agreement that the incident
occurred in 1977 whereas Corsentino cites March 15, 1976,
as the date. More importantly, Corsentino testified that
Abdunafi was not present in the hall when the referral was
made, while Riggi described a conversation during which
Abdunafi was present and was offered the job, and refused it.
The obvious discrepancies in the testimony of Respondent's
witnesses with respect to the alleged Torcon referral will not
permit me to credit them. I credit Abdunafi and find that no
such referral was made, at least not in his presence. If, in
fact, Abdunafi's name was called out in his absence, for
reasons stated earlier, I find this not to be a referral.
Riggi testified that in mid-1976 he stopped keeping a
written record of his attempts to refer Abdunafi to work
because he was advised by counsel that the Regional Office
of the NLRB had advised him that it intended to dismiss'
the charges. Nevertheless, according to Riggi, he continued
to refer Abdunafi out to jobs both when he was present at
the hall and when he was absent. In January 1977 a
complaint issued against the Union in the instant case. The
Union had been advised about a month before actual
issuance that the complaint would issue.
In September 1976 "' Riggi called Abdunafi and said, "I
have a job here with Hicks. How long is the job, Hicks?"
" The General Counsel asserts that Abdunafi's charge never was dismissed
in its entirety but only in part. and then much later than the date that Riggi
stopped taking notes oil referrals. The record contains a letter from the
Regional Director dismissing in part certain allegations contained in the
charge filed in the instant case. That letter is dated September 7. 177. well
over a year after Riggi's final entry. Whatever Riggi's reason for stopping his
noteaking. the reasons proffered by him are not supported by the record.
121
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hicks replied, "Until it is over." Riggi then said to
Abdunafi, "Do you want the job?" Abdunafi replied, "May I
speak to you for a minute?" Riggi then said, "Don't give me
none of that! Just answer me, 'yes' or 'no'!" Abdunafi did not
give him the required 'yes' or 'no,' so Riggi walked away and
Abdunafi did likewise. Abdunafi testified that Riggi did not
have a referral slip in his hand during this conversation as he
usually did. He also testified that had Riggi permitted him to
explain, he would have told him that he had an appointment
at the Veteran's Administration hospital that morning but
would be available for work that afternoon. Nevertheless,
despite the manner in which it was made, I consider the
discussion to amount to an offer of referral which did not
eventuate in Abdunafi's obtaining employment because of
the antipathy existing between them which, in turn, was due
to Abdunafi's previous attempts to unseat Riggi as the
power in control of the referral system and due also to his
having filed charges with the National Labor Relations
Board. But, even had Abdunafi not been engaged in these
protected activities, the mere fact that Riggi could and did,
in fact, exercise his unique authority to deny a member
employment simply because of a dislike for that person
amply demonstrates the evil of a referral system which
operates without any objective basis for determining what
referrals are equitably to be made. The officious manner in
which the referral was made effectively prevented its
acceptance by Abdunafi. Riggi, in complete control of the
situation, made it quite clear that by offering Abdunafi the
Hicks job, he was doing him a favor and would brook no
foolishness from him. Abdunafi, a proud man, felt degraded
by the experience and, rather than explain his problem, let
the opportunity for referral pass." Nevertheless, despite
some sympathy for Abdunafi's position, I find that there
was, in fact, a referral, though tainted with animosity, which
Abdunafi rejected.
Riggi testified that in 1977 he could recall referring
Abdunafi to two specific jobs although there were others.
But Riggi could not recall when it was in 1977 that he called
out Abdunafi's name nor could he remember the names of
the jobs to which he intended to refer Abdunafi. Abdunafi
denied receiving any referrals at all in 1977. In August or
September 1977 Abdunafi was engaged in conversation with
Leo Charles when Abdunafi stated that he was not working
because Riggi would not send him out. Charles later
discussed the matter with Riggi in his office while Abdunafi
was out in the hall. He said to Riggi "John, Wakil said you
won't send him to work." Riggi replied, "No, I will send him
to work any time. I tried to send him to work. He wouldn't
go. If he shaped up in the morning, I would send him out."
Charles then went to Abdunafi and reported what Riggi had
told him. Abdunafi again denied that Riggi had offered him
work, whereupon Charles challenged Abdunafi to make that
statement to Riggi's face. Abdunafi agreed, and both he and
Charles went into the office. Once there, Charles said to
Abdunafi, "I understand that Johnny has offered you a job."
Abdunafi replied in Riggi's presence, "He's a God damned
liar. Tell him to name me one job that he tried to give me."
Riggi then stated, "I tried to send you to work. You don't
" Abdunafi stated as much in a letter to the "advice" section of the
newspaper a few days later. In this letter Abdunafi also intimates that he
would not in any event have accepted the referral because of an ear problem.
get up here until it is too late to send men out." Abdunafi
insisted, "Name me one job." Riggi did not name a job but
turned red and walked away." The importance of the
incident lies in the fact that as late as August or September
1977, Riggi, when challenged to name a single referral which
he had given to Abdunafi, was unable to do so despite his
claim that he had written many of them down long before on
his calendar and on scraps of paper. I believe he referred
Abdunafi to no jobs other than those which Abdunafi
mentioned. This conclusion is supported by the testimony of
Nick Farmer, who stated that he has asked Riggi why
Abdunafi was not working and, although Riggi told him
many times over the past few years that Abdunafi does not
want to work, that he has offered Abdunafi jobs which he
rejected, and that Abdunafi never gets to the hall early in the
morning in order to be referred, he, Farmer, never once
during these years ever heard Riggi offer Abdunafi a job.
Still another incident related by Nick Farmer sheds light
on the Riggi-Abdunafi relationship, on the failure of Riggi to
refer Abdunafi, and on the reasons for his failure to do so.
Thus, 3 or 4 months after Riggi granted Nick Farmer's
request to use Abdunafi and Adolph for 2 nights work in
January 1976, Nick advised Riggi that a foreman's job was
opening up and brought up Abdunafi as a possible candi-
date. Riggi replied that he would not let Abdunafi be the
foreman because "it would not look good," but that Nick
could take Adolph if a foreman were needed. As it turned
out, the position never opened up. I find the incident
reflective of Riggi's attitude toward his role as the sole
source of referrals. He was willing to refer applicants to jobs,
to appoint stewards, and to agree to the appointment of
foreman, but would not agree to personally refer or appoint
individuals of whom he did not personally approve.
4. Alleged refusal to refer Adolph Farmer
a. Adolph Farmer's protected activity
Adolph Farmer testified that he has been speaking out
against the policies of the union leadership since 1971 and
has continued to do so right up to the time of the hearing.
Throughout this period he supported Abdunafi's position
and, next to Abdunafi, was the most vocal of any of the
members critical of the union hierarchy. Riggi admitted that
Adolph Farmer has spoken out against union policies, but
asserted that he had been doing so for 20 years. He admitted
that Adolph Farmer was a very vocal opponent of his and
the executive board's policies and had been such for many
years and that he, Riggi, was aware of this fact. From 1969
on, according to Riggi, Adolph Farmer and Abdunafi were
consistently more vocal in this respect than anyone else.
John Corsentino also stated that Adolph Farmer exercised
his right to speak out at meetings, at times vociferously
disagreeing with the policies of the Union.
Among the union policies which Adolph Farmer attacked
was its referral system, though he desired to correct abuses
by working within the local and was not in favor of
maintaining a roster. Other targets of Adolph Farmer were
'" The incident is based upon the combined testimony of Abdunafi and
Charles.
122
LABORERS, LOCAL 394
the way trial panels were picked as well as their decisions;
the choice of alternates to the union convention and the
means whereby they were chosen; the fact that there were no
black representatives to the convention chosen by the local;
and the awarding of good jobs to pensioners, including
Riggi's father. Since these policies were also targets of
Abdunafi during this period, it was clear that he and
Abdunafi were allies in their attacks on the union leadership
and its policies.
In 1971 Adolph Farmer brought internal charges against
Riggi, as did Abdunafi, alleging unfair hiring practices and
showing preferential treatment to certain members of the
Union. Like Abdunafi, he too wrote letters to the Interna-
tional complaining about the Union and Riggi in particular,
and when his charge against Riggi was dismissed, he
appealed that decision. Adolph Farmer testified that he filed
two charges, one against Riggi and one against the executive
board. Though other members filed internal charges against
the Union, no one except Adolph Farmer and Abdunafi filed
charges against Riggi personally. In addition to filing his
own charges he supported the numerous charges filed by
Abdunafi both against the Union's executive board and
against Riggi. In a letter from the executive board signed by
Executive Secretary Philip Renna, dated January 14, 1972,
and addressed to Abdunafi, Abdunafi was advised that his
charge alleging the falsifying of minutes filed November 3,
1971, would not be heard because Adolph Farmer had
already filed charges based on similar allegations and he had
been denied a hearing for lack of evidence. Thus, Adolph
Farmer's alliance with Abdunafi in common cause against
the union leadership was admittedly recognized. Moreover,
these charges filed by Abdunafi and Adolph Farmer were
the topic of discussion at union meetings and so they were
well publicized.
After Adolph Farmer brought charges against Riggi,
charges were in turn brought against him. Like Abdunafi he
was charged with vulgarity or profanity while presenting his
views at the meeting, despite the fact that four-letter words
were used at the hall by others and charges have not been
brought against anyone on that basis before nor since.
Subsequently he was found guilty and suspended just as
Abdunafi was. Respondent denies that Adolph Farmer was
suspended because he brought charges against Riggi and was
otherwise actively pursuing a course of action contrary to
the policies of Riggi and the union hierarchy. I am
convinced otherwise, however, for on June 24, 1972,
Renious Edwards filed an internal charge against the
executive board in connection with the issue concerning the
appointment of delegates to the International's convention
and, soon after his charges were found to be without merit,
he too was countercharged by the executive board with
slander and with conspiring with Adolph Farmer to file
duplicate false and malicious charges. He was thereafter
found guilty as charged and like Abdunafi and Adolph
" Edwards' suspension was for I month.
u International Alliance of Theatrical Stage Employees (RKO General. Inc.,
WOR-TV Division). 223 NLRB 959 (1976), citing Scofield [Wisconsin Motor
Corp.] v. N.LR.B. 394 U.S. 423, 429 (1969). and N. LR.B. v. Allis-Chalmers
Mfg. Ca. 388 U.S. 175, 195 (1967).
"22-CB-2851
" The affidavit. though not offered into evidence at the hearing, was
identified by Respondent's counsel and utilized for purposes of cross-
examination during the hearing.
Farmer suspended from attending meetings." Although the
action taken against Adolph Farmer was not violative of the
Act," it clearly manifested, when viewed with that taken
against Abdunafi and Edwards, an animosity founded upon
the Union's dissatisfaction with the internal protected
concerted activity of those participating in it.
In 1974, during another meeting, according to Adolph
Farmer, Abdunafi was trying to get the chairman's attention
without apparent success. Adolph interceded and stated that
Abdunafi was a member and had a right to speak. The
chairman replied that Abdunafi had been talking and talking
and that he did not want to hear him anymore. Farmer
replied, "Bullshit." Farmer testified that this remark was
magnified into "a whole lot of swear words." Riggi brought
charges again, and Adolph Farmer was suspended for
another year.
For the next 2 or 3 years while Abdunafi carried on his
letter-writing campaign, appealing to the International
concerning the inequities practiced by the local Union,
Adolph Farmer continued to conduct his campaign on the
local level to achieve the same results that Abdunafi was
attempting to gain. Adolph Farmer's name appeared in
several of Abdunafi's letters to the International.
In December 1974 Abdunafi filed his first charge" with
the National Labor Relations Board against Respondent
alleging that the Union caused one employer to terminate
him because of his intraunion activities and that the Union
operated its hiring hall in a manner which discriminated
against applicants who were not friendly with its business
agent. An investigation followed, but on February 21, 1975,
his charge was dismissed, as was his later appeal. Adolph
Farmer cooperated in the investigation following the filing of
the December 1974 charge. He testified that he participated
in the Board's investigation in 1975 and gave a statement" to
the Labor Board's agent containing information in support
of Abdunafi's charge. Adolph Farmer's testimony is fully
credited.
Following dismissal of Abdunafi's first charge, Abdunafi
and Adolph Farmer on July 1, 1975, went to the Regional
Office of the National Labor Relations Board where Abdu-
nafi filed the charge in the instant proceeding. Though the
charge was signed by Abdunafi and the body of the charge
refers to "Abdunafi and other employees" and does not
make any reference to Adolph Farmer by name, clearly the
charge was filed on his behalf as well as Abdunafi's, and he
participated thereafter in the investigation of the charge,
furnishing information in support thereof. At meetings in
1975 the NLRB charges were read" and thereafter discussed
on the floor by Abdunafi and Adolph Farmer as well as the
union leadership, who advised the members that Abdunafi
and Adolph Farmer had filed the charges with the National
Labor Relations Board. At a meeting some time later in
1976 or 1977, Riggi talked about lawyers' fees necessitated
by the filing of the charges and stated that assessments might
" The dates of the meetings are not identified, but clearly if the charges
were read to the membership to inform them of the fact that they were filed,
they would have been read shortly after their receipt by the Union. not several
years later as Respondent urges in its brief. Moreover, if Respondent desired
to show, in the face of indications to the contrary, that no discussion
concerning the charges occurred in early 1975, it could have produced
minutes of the meetings and witnesses to so testify. This it did not do.
123
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have to be levied or dues raised because of the charges
brought by Abdunafi and Adolph Farmer.
The above-described facts clearly indicate that Adolph
Farmer was extremely outspoken in his views and actively
pursued an overt campaign against the policies of the union
leadership which culminated in his filing charges against
both the executive board of the Union and John Riggi
personally in 1971; that these protected activities were
undertaken in concert with Abdunafi, a fact well known to
the Union; and that the union leadership retaliated against
Adolph Farmer and Abdunafi by filing countercharges
against them on obviously pretextual grounds thus showing
animus against them based on their having engaged in these
protected concerted activities.
The above facts similarly reveal that Abdunafi filed
charges against the Union in December 1974 and that
Adolph Farmer cooperated in the investigation of that
charge; that Abdunafi and Adolph Farmer together visited
the National Labor Relations Board on July 1, 1975, where
Abdunafi filed another charge; and that, Respondent's
position to the contrary notwithstanding, the Union knew of
and openly discussed these charges at various meetings,
referring to them as having been filed by both Abdunafi and
Adolph Farmer. Respondent's knowledge of Adolph Farm-
er's role in the filing of the charges and in the investigation is
amply demonstrated by the evidence. But even if his
participation in these protected activities were not based on
definite knowledge, I find that Respondent presumed his
complicity in the filing of the charges. I do so on the basis of
the fact that these Labor Board charges contained allega-
tions which both Abdunafi and Adolph Farmer had been
leveling at the Union since 1971 in numerous internal
charges, in correspondence, and in verbal assaults at
meetings. Since the Union was well aware of the Abdunafi-
Adolph Farmer joint campaign to undermine the referral
system as operated by Riggi and the union hierarchy, it is
safe to assume that, even without definite proof of Adolph
Farmer's complicity, Respondent would assume that they
were working together to achieve through the auspices of the
National Labor Relations Board the goal which they had
been trying unsuccessfully to achieve for the previous several
years through internal processes.
b. The failure of the Union to refer Adolph Farmer
From 1952 through 1970 Adolph Farmer, according to
the union records, averaged close to 1600 hours of work per
year. In 1971 he worked 91 hours. From 1972 through 1974
he averaged a little over 800 hours and in 1975 he worked
not' at all. In 1976 and 1977 he worked 838-Y and 1,056
hours respectively.
According to Adolph Farmer, from 1960 through 1970 he
worked mostly as a foreman or steward. During this period,
again according to records supplied by the Union, he
averaged 1,768 hours per year. The fact that as steward he
was frequently the last man to leave a job accounts, in part,
for the large number of hours he worked during this period
of time. Even when he was not steward, during the period
1960 through 1970 he worked regularly up until the time he
filed the charge against Riggi. During that period he
frequently worked for a year or more without being laid off
for a day, albeit sometimes he worked in several locations in
a year.
Adolph Farmer testified that a certain group of laborers in
the local, numbering perhaps 100, work 1500 to 2500 hours
every year, and that he was one of these people during the
1960-1970 period. The rest work sparingly. For this reason
he does not feel that working 500 to 1500 hours is a lot.' 6
Despite apparently preferring the long jobs, when out of
work, Adolph Farmer accepted any job whether it was 1, 2,
or 5 days, even during the 1960-1970 years, and the record
bears out his testimony.
John Riggi testified with regard to Adolph Farmer's work
during the period 1960-1970 that he was awarded preferen-
tial treatment, more work, and appointments as foreman.
Riggi admitted that he was responsible for Adolph Farmer
obtaining more and longer jobs but stated that the foreman
jobs were "out of his realm." The record, however, indicates
in various places that in many instances the Union could and
did appoint foremen. In any case, Riggi admitted that it was
possible that Adolph Farmer was foreman from 1965 to
1970 more often than not but that from 1971 until 1976, he
no longer served as foreman. Riggi could not recall whether
Adolph served as steward from 1971 until 1976 and I
therefore find in accordance with Adolph Farmer's testimo-
ny that he did not. Riggi agreed, upon being cross-examined,
that from 1965 through 1969 Adolph Farmer served as
steward or foreman, but after filing his first charge against
Riggi in 1971 he was no longer a steward or foreman but
only a laborer, and that is what the Union's own records
show.
When Riggi was questioned as to why Adolph Farmer
worked on so many long jobs as foreman or steward prior to
his filing the charge against Riggi, but thereafter no longer
served as a steward or foreman and worked only 91 hours in
the entire year of 1971, he gave several explanations. In the
1970's, according to Riggi, he received complaints from
between 8 and 11 other members that Adolph Farmer and
certain other members were receiving too much preferential
treatment and that they wanted their share too. Riggi
testified that when faced with these requests, he asked the
complainants how many pieces they thought were in the pie,
but then decided to try to "balance it out," and to try to
spread the work around "to keep an even keel in the local."
A second reason for Adolph Farmer's sudden drop in
working hours after his filing charges against Riggi, accord-
ing to Riggi, was that in the 1970's work was not plentiful
and so to take care of Adolph Farmer he told his (Adolph's)
brother, Nick, that he had carte blanche to take Adolph on
the job and give him almost as many hours as he got himself.
He added that in light of his understanding with Nick, he
doubted that Adolph was really willing to work. Upon being
examined further, however, Riggi admitted that the individ-
uals who, along with Adolph Farmer, had received preferen-
tial treatment, long hours, more jobs, and appointments as
stewards and foreman during the 1960s continued to do so in
the 1970s, year after year, working 1800-2000 hours. No
reason was given why Carmen Urso, Paul Fareno, Nick
' 500 hours is only about 3 months' work.
124
LABORERS, LOCAL 394
Signorelli, Joe La Sola, Joe Marino, Arthur Carrington, and
Willie Edwards continued to receive preferential treatment
in the face of the demands of the complainants while Adolph
Farmer did not; nor did Riggi name any of the alleged
complainants; nor did Respondent present any witnesses
concerning this request for a more equitable distribution of
work. As far as Riggi's explanation that work was no longer
as plentiful in 1971 as it was in 1970, that explanation does
not hold up, for the Union's own statistics indicate that the
yearly hours per man dipped only slightly from 1970 to 1971
and Riggi admitted that the other members receiving
preferential treatment did not suffer because of this minor
drop in available hours. Finally, Riggi's statement that Nick
Farmer was given carte blanche to bring Adolph Farmer
onto any job whenever he wanted is meaningless in the face
of testimony that Nick frequently did not have the opportu-
nity to make the offer. Moreover, if prior to his filing charges
against Riggi, Adolph Farmer had sufficient work and was
frequently appointed steward or foreman, the sudden drop in
his working hours and his failure to obtain stewardships and
positions as foreman from Riggi is in no way explained away
by Riggi's statement that he could get work from his
brother. Clearly, Adolph Farmer did not get work from his
brother after filing the charge against Riggi. He did not get
much work from anybody but dropped from 1,292 hours in
1970 to 91 hours in 1971. Since prior to his filing charges
against Riggi in 1971 Adolph Farmer accepted each and
every job, even for a day or two, and credibly testified that
he never turned down jobs because they were short,
regardless of the source, there appears no basis to credit
Riggi's proposition that Adolph Farmer did not want to
work.
After Adolph Farmer filed his charge against Riggi in
1971 he continued to shape up at the hall, arriving between 7
a.m. and 8 a.m. and staying until it closed. Numerous
witnesses testified to the regularity with which he shaped up,
some testifying that he shaped up more than anyone else.
Despite the regularity with which Adolph Farmer shaped up
in 1971, ready and willing to go to work, Riggi did not call
his name for referral. Nor did Corsentino or Renda refer
him to any jobs after Riggi left the hall for the day.
Regardless of what time he arrived, others would be sent out
while Adolph Farmer was left sitting in the hall. Just as was
the case with Abdunafi, applicants for referral who arrived
after Adolph Farmer were nevertheless sent out while he
remained behind.
The Union's employment records indicate that Adolph
Farmer worked almost not at all in 1971 but did work on
certain jobs thereafter, though not nearly as often as he had
prior to his filing charges against Riggi and the executive
board of the local in that year. Though he served as steward
or foreman rather consistently prior to 1971, after filing the
charges in 1971 he received no such appointments for the
next 5 years. In fact, he testified, he received no job referrals
directly from Riggi from 1971 through 1974 and only one
job" thereafter. Adolph Farmer's brother, Nick, testified
that he knew of no jobs on which Adolph worked which
"The Battin High School job, discussed infra.
"Specific incidents are discussed infra.
" Adolph Farmer testified that he got one job through Carrington in the
1970s--the Sealand job. This is probably the same job.
were not obtained through Nick. Riggi conceded that he
made only two attempts" to refer Adolph Farmer to jobs in
the years 1971 through 1977 and that all the work he
actually obtained was through the intercession of his brother
Nick. Riggi's failure to refer Adolph Farmer quite clearly
was not because he was oblivious of his needs because
Adolph Farmer shaped up regularly and was easily visible to
Riggi if he chose to offer him work, and, moreover, Nick
personally requested Riggi on a number of occasions to send
Adolph to jobs.
Adolph Farmer obtained just three jobs in 1972 for a total
of 853 hours. He was not referred to any of these jobs by
Riggi but rather obtained them from his brother who
admittedly had to clear them through Riggi. On these
occasions, Nick would come to Adolph and tell him to come
on the job with him, that it was all right because he had
checked it out with Riggi who had given his permission. In
1973 Adolph Farmer worked a total of 806 hours, all but 88
of which were on the Damon Douglas job. Nick Farmer was
the foreman on the job and Arthur Carrington may have
been the steward since Adolph Farmer, according to
Carrington, asked him to put him on that job. Carrington
got Riggi's permission and Adolph Farmer got the job.'
In 1974 Adolph Farmer worked on three jobs' ° within the
jurisdiction of the Union for a total of 771 hours. None of
these jobs was offered to him by Riggi. Rather, he obtained
these jobs through his brother, Nick. Thus, to summarize,
from 1971 through 1974 Adolph Farmer obtained no direct
referrals to any jobs from Riggi despite the fact that he
shaped up consistently at the hall and despite the fact that
prior to his campaign against Riggi beginning in 1971, he
received a large number of referrals, even preferential
treatment from Riggi. Once he undertook to challenge the
Union's leadership by filing charges within the Union, he no
longer received referrals at the union hall but had to depend
upon his brother" to initiate action to obtain work for him.
From the entire picture presented, it appears clear that while
in the good graces of Riggi and the union leadership Adolph
Farmer obtained most of his employment through direct
referrals from Riggi, but once he made an enemy of Riggi,
the sole person in control of the referral system, by filing
charges against him within the Union, Riggi determined to
do him no favors and did not, thereafter, refer him to jobs as
he had previously, and Adolph Farmer then had to rely
upon Nick Farmer to intercede in his behalf to obtain
employment. Thus, it would appear that, whereas Adolph
Farmer obtained employment through direct referral before
he participated in protected concerted activities within the
Union, after he engaged in said activity, he no longer was the
recipient of such referrals, and if he was denied this service
because of his protected concerted activities it would have
been violative of the Act, but for the Section 10(b)
limitations. And it would not matter in the least that the sole
reason that he was denied the benefits of the referral system
was that Riggi felt that he no longer had to "do favors" for
the man whom he had befriended and who had despite his
friendship attacked him. If a referral system is operated
'" Actually. Adolph Farmer worked on one job, then worked on another
job, then returned to the first job.
" In the one case noted, Carrington befriended him and obtained work for
him.
125
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without objective criteria as its basis, it must, of necessity, be
subject to the human frailties of its controller, and the
instant case proves the point. For, assuming that Riggi
desired to be as fair and impartial as he could possibly be, he
was unable to point to either Abdunafi or Adolph Farmer
and award them worthwhile jobs after being attacked by
them-as he had been by their challenging him, and his
control of the system verbally at meetings, and filing internal
charges against him. Thus, it follows that a referral system
totally under the control of a single individual or group of
individuals subject only to personal preferences of a subjec-
tive nature, without guidlines or objective criteria to safe-
guard the rights of individuals, is per se violative of the Act.
For each potential applicant for referral must be guaranteed
sufficient information as to his position vis a vis referral to
enable him to question, to accept, or reject what he is told
concerning that position, and without such criteria, individ-
uals like Wakil Abdunafi and Adolph Farmer are blindly at
the mercy of the person or persons in control of the system.
In December 1974 Abdunafi filed his charge with the
National Labor Relations Board and, with the aid of Adolph
Farmer, undertook to pursue his goal of referral system
reform through the Federal Government rather than
through internal means. Thereafter, according to Adolph
Farmer, he received absolutely no work at all, not from
Riggi, Corsentino, or Renda, nor, according to union
records, from anyone else. Nick Farmer, almost the sole
originating source of jobs for Adolph Farmer from 1971
through 1974, had no opportunity in 1975 to request that
Adolph be sent out to his job to work with him. All 12 or 13
laborers sent to the A. M. Gregos post office job by the
Union were referred out of the hall and were not requested
by Nick Farmer because Nick was not advised by Gregos
that there were openings. The job lasted through 1975 and
into 1976.
Though Adolph Farmer continued as before to shape up
regularly in 1975, ready, willing, and able to report for work,
he was not referred to any jobs, while other applicants for
referral who had arrived at the hall later than he received
referral slips and went to work. Riggi admits that he saw
Adolph Farmer shaping up regularly in 1975 and sitting in
the union hall, but asserts that he could have been working.
Riggi testified that he did not, however, ask Adolph Farmer
if he wanted to go to work, and admitted noting that he was
still sitting there when he left each morning. Throughout
1975 and the first part of 1976 Adolph Farmer watched
more than 50 people repeatedly reporting to the hall and
going off to work after referral while he just sat there, not
moving once. He would customarily stay at the hall until it
closed at 9:30 a.m. No one, Adolph Farmer credibly
testified, shaped up as often as he and Abdunafi did, without
being referred out.
Nick Farmer testified that he had been told by Riggi that
"Adolph could go to work anytime he wanted, all he had to
do was come in and see him, he had no hard feelings against
Adolph, he could come in anytime he wanted." According
to Nick Farmer, applicants for referral either go in to see
Riggi or Riggi comes out into the hall and calls them by
name, after which they go into his office where he gives them
" The record indicates that Nick was steward at A. M. Gregos in June and
July 1975.
a referral slip. When told by Riggi that Adolph should come
in and see him, Nick replied that Adolph was outside in the
hall and if Riggi wanted him, he should go out and call him
in, and he would come. When Nick later told Adolph what
Riggi had said, Adolph replied that there was no reason for
him to go in and see Riggi; he would come to the hall and
take his chances sitting out there with the rest of the
members.
Nick Farmer testified that Riggi also told him that it was
an automatic thing, that he knew that he had the okay to
take Adolph on his jobs any time he wanted to. This was
within the period 1975-77. As it stood, as far as Nick
Farmer knew, from 1971 through 1977 Adolph Farmer
obtained no employment referral from the hall and all work
he obtained was through Nick, after he obtained permission
from Riggi to let him come out to the job. Unfortunately for
Adolph Farmer, Nick did not always have the opportunity
to request that Riggi send Adolph to the jobsite because
frequently the superintendent or foreman would contact the
hall directly and Riggi would not refer Adolph to a job
unless it was by special request from Nick. Thus, although
Nick Farmer was the steward for the A. M. Gregos job at
the post office in Elizabeth, for several months he had no
opportunity to ask Riggi to have Adolph sent to the job
because all referrals were made directly through the hall.
Riggi testified with regard to 1975, just as he told Nick
Farmer, that Adolph could have worked anytime and that
this was so because he had given Nick Farmer carte blanche
to take Adolph Farmer on any job that Nick was on, and to
let him work for almost as many hours as Nick worked. For
this reason, Riggi stated, he did not feel that he had to call
Adolph's name in the hall since whenever Adolph wanted to
work, Nick Farmer could have taken him to his job anytime
that he was.shop steward. Riggi testified that he also told
this personally to Adolph Farmer during the 1975-77
period, but Adolph denied this emphatically. Riggi testified
that he told this to Adolph Farmer on two occasions but
could not remember when or where, although it was
probably at the hiring hall. He stated that there were no
witnesses. I credit Adolph on this matter and find that
although Riggi told Nick that he could take Adolph on any
jobs on which he was steward, he never personally advised
Adolph of his statement to Nick.
Riggi also testified that in 1975 Nick Farmer had many
opportunities to place Adolph on the A.M. Gregos job
because in that year Nick was steward" on that job and
called Riggi to have him send laborers to the job. Riggi
stated that Nick called him up "for some of the people that
are on this shop steward's report," referring to the A. M.
Gregos post office job. He then named certain individuals
whom Nick Farmer allegedly asked for by name. Nick
Farmer, however, denied requesting these persons. On this
issue, I credit Nick Farmer over John Riggi and find that the
individuals who worked on the A. M. Gregos job in 1975
were referred out by Riggi directly from the hall rather than
through Nick and that Nick did not have an opportunity to
request that Adolph be sent to the job." Moreover, Riggi
was aware that Nick was in the habit of taking his brother
on jobs with him whenever he could. He knew also that Nick
" Similarly, Riggi testified that whenever men were requested for the post
office job, he would notify Nick by phone immediately, thus giving him an
126
LABORERS, LOCAL 394
was steward on the A. M. Gregos job and that Adolph was
sitting out in the hall. If Riggi bore Adolph no animus he
would have sent him to Nick's job without waiting for a
specific request from Nick.
Riggi also testified that he personally referred Adolph
Farmer out to one job in 1975, that he could not remember
the contractor's name, and that when he gave Adolph
Farmer the referral slip, he refused the job and told Riggi to
send somebody else. Adolph Farmer denied obtaining any
referrals from Riggi in 1975. I credit Adolph Farmer."
John Corsentino testified that though he was at the hall
himself regularly and noticed Adolph Farmer shaping up
regularly and sitting out in the hall, he never once referred
him to a job within the 3 or 4 years immediately preceding
the hearing, though he had the authority to do so once Riggi
left the hall. When he closed the hall later in the morning
when he was not working himself, he would notice that
Adolph Farmer was still sitting there.
Union documents, which were stipulated into the record,
indicate that Farmer worked for 26 hours in January-
February 1976 at the A. M. Gregos post office job, then
returned to the same job in July of that year and continued
to work at that work site through December. In to Adolph
Farmer worked for 836-Y% hours at the A. M. Gregos
construction site in 1976.
According to Adolph Farmer, he obtained the 26-hour
job, a 2-night job, in January at the A. M. Gregos
construction site through Nick Farmer's request from, and
the permission of, Riggi. Nick told Adolph that he had
asked Riggi for the job for him and Riggi had agreed.
Thereafter, both Adolph Farmer and Abdunafi reported to
the job and worked the 26 hours indicated. Nick Farmer
testified that this was the first opportunity he had had to put
Adolph to work since 1974.
In March or April 1976 Adolph Farmer testified that he
was asked by John Corsentino why he was not going to
work. Corsentino told Adolph that he was going to lose all
of his pension benefits unless he went to work. He observed,
"It has been almost 4 years now and you have no credit
time?"" Adolph replied, "How do I go to work? You see me
at the hall shaping up. Riggi just chose not to send me to
work." Corsentino replied, "I don't believe that. I'm going
to talk to John tomorrow."" Corsentino testified to this
conversation by stating that Adolph Farmer informed him
opportunity to request that his brother be referred. Nick Farmer emphatically
denied that this was the procedure. I credit Nick Farmer and find that he did
not specifically request the individuals referred to the A. M. Gregos job and
had no opportunity to make the selection as Riggi testified.
I Credibility resolutions, where there are conflicts in the testimony, have
most frequently been made against Riggi. Aside from findings made on the
basis of inherefit probabilities, which are fully discussed in the text, these
resolutions are primarily based on my finding that Riggi was a most
unpersuasive witness, frequently avoiding giving a direct answer and replying
with such phrases as "it could be possible." On the basis of such evasive
answers as this and Riggi's general demeanor I have often found against him.
Respondent called other witnesses in addition to Riggi to testify concerning
possible referrals offered to Adolph Farmer. Thus, three of Respondent's
witnesses testified concerning Adolph Farmer's name being called out by
Riggi at the union hall. Timothy Nickles, an individual who served on the
local Union's trial board that found Abdunafi guilty of slander and decided in
1977 that he should be barred from attending meetings for 2 years, testified
that Riggi had called Adolph Farmer's name out in the hall between 2 and 5
times during the period 1975-77. On these occasions according to Nickles,
Adolph Farmer went into Riggi's office and the door was closed. Nickles
testified that he did not see Riggi offer Adolph Farmer a referral slip and did
that he had not been referred out for 5 years by Riggi. He
corroborated Adolph Farmer's testimony closely by stating
that he told him that he could not believe his statement. At
the same time, Corsentino acknowledged that he had seen
Adolph Farmer shaping up and sitting in the hall, day in and
day out, and only being referred out once. As noted
previously, Corsentino's surprise at Farmer's statement
cannot possibly be credited in light of the fact that he was
privy to the workings of the referral system, never saw Riggi
refer Adolph Farmer to a job, and never referred him out
himself since 1970. Quite clearly something must have
occurred whereby Corsentino after all these years inexplica-
bly took this sudden interest in Adolph Farmer's welfare. In
the absence of any other explanation in the record, I must
assume that the Regional Director's investigation of the July
1, 1975, charge may have succeeded in affecting the general
attitude of the Union's hierarchy toward Abdunafi's and
Adolph Farmer's welfare.
The day after Corsentino's conversation with Adolph
Farmer, when Farmer shaped up, Riggi called him into the
office and offered him a job. He turned down the job,
however, advising Riggi that he had a prior commitment
that morning. Though he would have been able to work later
that morning or afternoon, he did not advise Riggi of this
fact. After returning to the hall, Farmer decided that the
only reason he was offered the job that morning was because
of his conversation with Corsentino the previous day. He
therefore went back into the office and told Riggi what he
had told Corsentino the day before and asked him, "Now, I
want you to tell John Corsentino. Have you referred me to a
job in 5 years?" Riggi replied, "No."
Corsentino testified that the day after Adolph Farmer told
him that Riggi had not referred him out in 5 years, he told
Riggi about the conversation. At that point, the phone rang
and the call turned out to be a request for a laborer. Riggi
thereupon called Adolph Farmer into the office and referred
him to the job. According to Corsentino, Riggi told Farmer
that the job was for 6 months and Farmer turned down the
job, stating, "Six months is not going to help me." He then
went back into the hall. Later, Farmer came back into the
office and, according to Corsentino, may have said that
Riggi's job offer of that day was the first job Riggi had
offered him in 5 years. Corsentino stated that Riggi did not
deny Farmer's accusation. Moreover, Corsentino testified
not know anything about what occurred in Riggi's office thereafter. Andrew
Rose testified that he heard Adolph Farmer's name called out by Riggi 2 or 3
times per year from 1975 through 1976 and that when he was called, Adolph
Farmer was always present and would go into Riggi's office. Rose could not
testify as to what happened inside Riggi's office once he entered and the door
closed behind him. The third witness. William Roach, could not recall having
heard Adolph Farmer's name called out at the hall during 1975-77. In total, I
find the evidentiary value of the testimony of these witnesses meager at best,
and do not, therefore, rely upon it with regard to the issue of whether or not
Adolph Farmer actually received referrals from Riggi during the period 1975-
77.
" Corsentino's approach appears rather disingenuous. After 4 years of
watching Adolph Farmer appear each morning to shape up and never once
hearing him referred to a job nor referring him to a job himself, Corsentino
suddenly professes concern about Adolph Farmer's not working and thereby
losing pension benefits. I seriously doubt Corsentino's sincerity on this
occasion.
" It is noted that the charge in the instant case was filed in July 1975 and
that by April 1976, Respondent may have decided to reconsider its approach
toward the problem it was facing as a result of the charge.
127
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that this was the only referral that he had heard Riggi offer
to Adolph Farmer in 4 or 5 years.
Adolph Farmer testified that he refused the job offer
because of a commitment in New Brunswick to see about
another job. When asked if Riggi mentioned how long the
job would be that he was being referred to, Farmer at first
denied that any length of time was mentioned. Later, when
shown his affidavit, Farmer testified that Riggi may have
mentioned the length of the job and that it might have been
the Battin High School job.
Riggi testified that on this occasion he offered Adolph
Farmer the Battin High School job and told him it would
last 6 months but that Farmer turned it down with the
statement, "Six months will do me no good." From the
testimony of Adolph Farmer, Corsentino, and Riggi, it
would appear that Riggi did, in fact, offer Farmer a job on
the Battin High School project, advising him that it would
last for 6 months, but that Farmer turned the job down, in
part because he had to go to New Brunswick to look into
another possible job, but also because the Battin High School
job was expected to last only 6 months. Since up to this time
Farmer seemed to be anxious to obtain any employment
regardless of how short a period the job would last but
suddenly refused this referral because, in part, a 6-month job
"would not help him," there seems to have been a complete
turnabout in his attitude. The record indicates no apparent
reason for the change in his attitude, but something
apparently made him decide that he could afford to turn
down this referral. If, at about the same time, during the 9th
or 10th month of the Region's investigation of Abdunafi's
charges, Riggi should suddenly make his first referral to
Adolph Farmer, and Farmer should suddenly decide a 6-
month job "would do him no good" whereas previously he
was accepting 1- and 2-day jobs whenever he could get them
(through his brother), it is more than mere conjecture to
arrive at the conclusion that just maybe the Union began to
realize, in light of the outstanding charges, that it might be
propitious to start offering work referrals to Farmer, while
Farmer might assume that the charges filed on his behalf
might well be found to be meritorious, and the leverage to be
obtained from such a finding might enable him to turn down
any but the best job referrals. For lack of a better
explanation as to why Riggi should suddenly change his
position with regard to offering direct referrals to Farmer,
and Farmer should suddenly change his position with regard
to accepting such referrals, I am willing to accept the course
of the Region's investigation as a possible reason for these
changes in position. In any event, whatever the explanation,
I find that a genuine referral was made to Adolph Farmer at
this time which he rejected.
The morning after Adolph Farmer turned down the
Battin High School job, other individuals were sent out on
that job, but Riggi did not offer the job to Farmer a second
time, nor do I find that he was obligated to insist that
Farmer take the job. Once Adolph Farmer rejected the
referral, I do not feel that Riggi had any obligation to pursue
the matter further, even if Farmer was prepared to accept a
second referral to that job, as he testified. It is noteworthy
that though present in the hall while referrals were being
made to the Battin High School job, Abdunafi was never
offered a job there.
In June 1976 Nick Farmer was working as steward on the
A. M. Gregos post office job in Elizabeth. He learned and
advised Riggi that a foreman was needed on the job and
asked if Adolph could have the job. Riggi replied that Nick
knew that he could have Adolph on his jobs anytime he
wished. Nick replied, "John, do me a favor. Adolph is out in
the hall. Call him in and tell him." Riggi thereupon agreed
to do so, then called Adolph Farmer in and sent him to the
job. This was the first time since 1970 that Adolph Farmer
was given a foreman's job. The job lasted for about a year,
until June or July 1977.
Adolph Farmer worked for about 1,000 hours in 1977 on
the A. M. Gregos job, until July 4, 1977. Thereafter he
worked only 3 days. Some time during 1977, Nick Farmer
asked Riggi why Adolph Farmer was not working. Riggi
replied that Adolph could go to work whenever he wanted
to; all he had to do was come in and see him. Riggi did not
deny that this conversation took place, and I find that it did.
In 1977, Nick Farmer was the shop steward on a job in
Cranford, New Jersey, where Malcolm was the general
contractor and Sasso and various other contractors were
subcontractors. The job started in September or October
1977, was still in progress at the time of the hearing, and was
expected to continue for perhaps 2 or more years. Early at
the beginning of the job, Riggi told Nick that if the
opportunity should arise, he could take Adolph on the job
with him, and Nick agreed. Subsequently, Nick got the
opportunity to request that Adolph be placed on the Sasso
job. Adolph worked for Sasso for 2 days, when that job was
shut down temporarily by the contractor. When the job
opened up again 2 or 3 days later, Sasso did not need Adolph
Farmer any longer and that was the end of the job. Since
Adolph's layoff at Sasso, there were no further opportunities
for Nick to bring Adolph back on the job, because Nick was
not aware of jobs which opened up for the other contractors
on the job.
Some time after Adolph Farmer's layoff at Sasso, a
conversation between Riggi and Adolph Farmer took place
in Riggi's office. During this conversation Adolph told Riggi
that he did not wish to go back to work for Sasso. Riggi told
Farmer that from the Sasso job he could go to work for
other subcontractors, then for the general contractor with
his brother. This conversation, however, took place at a time
when there were apparently no openings at the jobsite, and
the tenor of the rest of the conversation clearly indicates that
Riggi's remarks were not intended as a referral but merely as
a suggestion that if Nick Farmer were to come up with a job
in the future, Adolph should accept it. This of course was in
keeping with recent past practice. At any rate, according to
the credited testimony of Nick Farmer, the opportunity to
call Adolph to work on the Malcolm job never materialized.
Thus, on this occasion there was neither a referral nor a
refusal.
C. Summary
i. The exclusive hiring hall arrangement
The evidence is overwhelming that Respondent Union
operates an exclusive hiring hall whereby anyone who
desires employment in the laboring field within its jurisdic-
128
LABORERS, LOCAL 394
tion must first obtain a referral slip from Riggi or his
assistants or at least get Riggi's permission before going to
work. Similarly, Riggi appoints all stewards and all foremen
except foremen who are company foremen.
2. Referrals based upon solely subjective criteria
Respondent admits and I have found that the Union, until
September 1977, used solely subjective criteria in deciding
which applicants for employment were to be referred to
available jobs. Similarly, I have found that prior to Septem-
ber 1977, no lists, rosters, records, or standards of any type
were used in making referrals. Though any information
concerning referrals was kept in the business manager's
head, I have concluded that for Riggi to keep accurate
mental records over a period of time would be physically
impossible. Moreover, I have found that the failure of the
Union to maintain proper records of past referrals, current
rosters, or other standards deprived applicants of the
information necessary for them to ascertain whether or not
their referral rights were being protected, and therefore
violated Section 8(b)(1)(A) of the Act. Similarly, I have
found that the practice whereby the business manager has
permitted individuals to be hired at jobsites upon the request
of stewards, thus possibly bypassing applicants who have
been waiting longer periods of time for referrals, invidiously
undermines the fair and impartial operation of the referral
system and is likewise therefore violative of the Act.
With regard to the institution of the September 1977
roster referral system, I have found that its institution does
not obviate the necessity for a remedial order. Moreover, the
complaint does not allege that the new roster referral system
is unlawful, and the evidence in the record is insufficient to
enable me to render a decision on this point. Finally, I have
been advised that a charge concerning this matter has been
filed and it is within the province of the General Counsel to
determine, through its investigatory procedures, whether
complaint should issue or not. I therefore make no findings
as to the operation of the hiring hall as of September 1977
and thereafter.
As to the settlement agreement, approval of which
Respondent urges, I find it unsatisfactory in that it does
nothing to make whole the individuals who suffered because
of the discriminatory operation of the hiring hall system
between January 1975 and the September 1977 institution of
the new hiring hall system, and possibly thereafter.
3. The alleged failure to refer Wakil Abdunafi
The evidence indicates that Wakil Abdunafi was extreme-
ly active within the Union and that his activity took the form
of protected concerted activity in which he criticized the
local hierarchy's referral system and brought its methods to
the attention of the International. Similarly, he charged that
Riggi's power and control of the referral system were so all-
pervasive as to interfere not only with the financial well-
being of those dependent upon that system but also with the
internal workings of the local, its executive board, and its
trial board panels, and with any attempt to correct abuses
within. The evidence also indicates that the business manag-
er, executive board, and various members of the union
hierarchy bore animus against Abdunafi because of these
protected activities and took overt action against him in the
form of countercharges which resulted in his being suspend-
ed from attending union meetings on two occasions for
extended periods.
I have also found that following the heavy confrontation
between Abdunafi and the union hierarchy, particularly
with Riggi, toward the end of 1970, referrals of Abdunafi to
jobs suddenly ceased. In 1971 he received no referrals at all.
I have found that the failure of Respondent to refer
Abdunafi to any jobs in 1971 was a direct result of his
challenging Riggi and the local Union's hierarchy concern-
ing their control of the referral system. Similarly, I have
found that once Abdunafi began writing letters to the
International, to governmental agencies, and officials in late
1971 concerning the failure of the local to refer him to jobs,
he once again began receiving referrals, albeit referrals not of
the same substantial quality as those obtained by local union
officials or acquaintances of the business agent in charge of
referrals. I have found that this increase in the number of
referrals to Abdunafi in 1972 and thereafter was a direct
result of his complaints to the International concerning the
local's failure to refer him to jobs.
In December 1974, however, Abdunafi filed a charge with
the National Labor Relations Board. Thereafter, Abdunafi
was not again referred out to any jobs by Riggi. Though this
initial charge was dismissed, Abdunafi filed another charge
on July 1, 1975, alleging that he had received no referrals in
the first 6 months of 1975, and that the Union's referral
system was operated in an illegal manner. Throughout the
rest of 1975, have found, Respondent failed and refused to
refer Abdunafi to any jobs whatsoever. Respondent's agents,
I have found, called out Abdunafi's name in his absence, but
I have determined that such an act does not amount to a
referral. Beginning in 1976, Riggi did in fact make certain
referrals of jobs to Abdunafi, but these were sporadic and
made because of the pressure resulting from the fact that
there was an outstanding National Labor Relations Board
charge, and not because Respondent had reformed its
referral system. In sum, I have found that Respondent has
since 1975 discriminated against Wakil Abdunafi because he
engaged in concerted protected activities within the Union
and because he filed charges against the Union with the
National Labor Relations Board.
4. The alleged failure to refer Adolph Farmer
The evidence indicates that Adolph Farmer, allied with
Wakil Abdunafi, was one of the two most vocal adversaries
of John Riggi and the Union's leadership since 1970 and that
in 1971 he brought charges against Riggi and the executive
board. The record reflects that in response to the charges
filed by Adolph Farmer against the union leadership, they in
turn brought charges against him and he was suspended
from attendance at union meetings because of his internal
protected activity. I have found that the action taken against
Adolph Farmer in retribution for this activity is evidence of
animosity, which animosity is supportive of later findings of
discriminatory action taken against Farmer. A similar
suspension in 1974 I have also determined to have been the
result of the union hierarchy's attempting to prevent Adolph
129
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Farmer, in alliance with Abdunafi, from effectively combat-
ing the policies of the union leadership.
In December 1974 when Abdunafi filed his charge with
the National Labor Relations Board, Farmer offered evi-
dence in support thereof, and I have found that inasmuch as
Adolph Farmer was known by Riggi and the union
leadership to have been allied with Abdunafi since 1970,
they knew or assumed his complicity with Abdunafi in the
filing of the charges. Similarly, Adolph Farmer was identi-
fied along with Abdunafi as one of the two individuals who
were behind the filing of the July 1, 1975, charge with the
National Labor Relations Board, and the Union's animosity
was clearly demonstrated against both by criticism of their
action by union leaders at various meetings held thereafter.
I have found that prior to Adolph Farmer's joining forces
with Wakil Abdunafi to unseat Riggi and undermine his
personal control of the referral system, Farmer was one of
the favored individuals who was referred to long-term jobs
and therefore worked steadily. From 1970 until 1976,
Farmer no longer received appointments as steward or
foreman and worked only 91 hours during the entire year of
1971, the period immediately following the initiation of his
and Abdunafi's active campaign against Riggi and about the
time of his filing of charges against Riggi. I have found that
Respondent's explanations as to the reasons for Farmer's
loss of opportunity for referral lack credibility and have
determined that Riggi's failure to refer Farmer to jobs or
appoint him as steward or foreman in 1971 and thereafter
was a direct result of his animosity toward Farmer and the
discriminatory motivation born of Farmer's participation
with Abdunafi in anti-Riggi internal protected activity. I
have also found that the partial substitution of Nick Farmer
as a conduit for some jobs in lieu of the usual direct referral
from Riggi did not relieve the Union of its obligation to treat
Farmer as it did other applicants for referral who shaped up
at the hall. In short, I have found that Adolph Farmer was
discriminated against by Riggi because of his protected
concerted activity and was the victim of an illegal referral
system. But for the proscription of Section 10(b), I would
have found a violation of the Act occurring throughout
1971-1974.
In December 1974 after Abdunafi filed the charge with
the National Labor Relations Board and Adolph Farmer
assisted him and the Board with the investigation, neither of
these men received any work from any source for the entire
year of 1975. Though his initial charge was dismissed,
Abdunafi's second charge, filed July 1, 1975, remained
outstanding, for the most part," right through issuance of
complaint in January 1977. Though Adolph Farmer was
offered no direct referrals in 1975 and only a few hours'
work in early 1976, I have found that for one reason or
another, not apparent from the record, Riggi did offer
Farmer work in March or April which he rejected. Thus, I
conclude that the denial of any work to Adolph Farmer in
1975 was the direct result of his support of Abdunafi's filing
of the Labor Board charges, and of his participation in the
"The Regional Director refused to proceed on certain allegations contained
in the charge.
"Failure of Abdunafi and Adolph Farmer to sign the roster and participate
in the newly devised referral system instituted in September 1977 should also
be more properly considered in any future backpay hearing. Since the new
referral system is the subject of a recent charge, currently under investigation,
investigations which followed as well as the continued
animosity engendered by his engaging since 1970, along with
Abdunafi, in the campaign against Riggi and his personal
control of the union hiring hall referral system. I find the
failure of the Union to refer Adolph Farmer to work
beginning January 1, 1975, was discriminatorily motivated
and in violation of the Act. The extent to which Farmer
failed to avail himself of opportunities afforded him by
referrals in March or April 1976 and possibly thereafter"
would more properly be the subject of consideration in any
forthcoming backpay hearing, assuming one is necessary.
However, there is additional evidence in the record that even
after the referral of March or April 1977, Riggi has
continued to hold to the position that Adolph Farmer
should obtain work through his brother Nick, rather than
through the union hall's referral system as administered
through Riggi, a position which I have found in conflict with
the law.
Upon the foregoing findings of fact, and on the entire
record in the case, I make the following:
CONCLUSIONS OF LAW
1. Building Contractors Association of New Jersey (BCA)
and its employer-members are engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Local 394, Laborers' International Union of North
America, ALF-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. At all material times the Union maintained and
operated on behalf of the employer-members of BCA an
exclusive job referral system or arrangement whereby all
laborers to be employed by employer-members of BCA at
construction sites located within the Union's jurisdiction
must be referred to them by the Union.
4. By maintaining and operating its exclusive job referral
system since on or about January 1, 1975, in such a manner
as to select and refer applicants for jobs solely on the basis of
subjective criteria without the use of objective criteria or
standards, Respondent has engaged in unfair labor practices
within the meaning of Section 8(b)(1)(A) and (2) of the Act.
5. By maintaining and operating its exclusive job referral
system since on or about January 1, 1975, in a discriminato-
ry manner, Respondent has engaged in unfair labor practices
within the meaning of Section 8(b)(l)(A) and (2) of the Act.
6. By discriminatorily failing and refusing to refer Walil
Abdunafi and Adolph Farmer to jobs through its exclusive
job referral system since on or about January 1, 1975, in
retaliation for their having engaged in protected concerted
activities including their having filed internal charges against
the Union's leadership and charges with the National Labor
Board, the Union violated Section 8(b)(IXA) and (2) of the
Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
the outcome of that investigation may have some bearing on the backpay
considerations as well. Therefore, it does not seem appropriate here to make
any determination concerning the new roster referral system, its administra-
tion, or the effect on any backpay due discriminatees of their failure to avail
themselves of or participate in the revised referral system.
130
LABORERS, LOCAL 394
THE REMEDY
Having found that the Union has engaged in unfair labor
practices in violation of Section 8(b)(1)(A) and (2) of the
Act, I shall recommend that it be ordered to cease and desist
therefrom and that it take certain affirnmative action to
effectuate the policies of the Act.
Having found that the Union unlawfully caused Wakil
Abdunafi and Adolph Farmer to be denied referral to work
at various member-employers of the Building Contractors
Association of New Jersey on various occasions since
January 1, 1975, shall recommend that it make them whole
for any loss of earnings suffered as a result of the discrimina-
tion against them by payment to them of sums of money
equal to that which they normally would have earned as
wages from the date of the discrimination against them, as
limited by Section 10(b) of the Act, until such time as
Respondent Union properly refers them to employment in a
nondiscriminatory manner pursuant to the lawful operation
of a referral system based on objective criteria or standards,
less net earnings during such period. Backpay and interest
thereon is to be computed in the manner prescribed in F;: W
Woolworth Company, 90 NLRB 289 (1950), and Florida
Steel Corporation, 231 NLRB 651 (1977)."'
I shall, in view of the nature of the unfair labor practices
found herein, recommend that Respondent cease and desist
from infringing in any manner on the rights of applicants for
employment or employees guaranteed by Section 7 of the
Act. A broad order is appropriate in situations such as
occurred in the instant case, where Respondent unfair labor
practices are serious in nature and strike at the very heart of
those rights which the Act is intended to protect, and is
therefore recommended. Local No. 78, United Brotherhood
of Carpenters and Joiners of America, AFL-CIO (Murray
Walter, Inc), 223 NLRB 733 (1976); N.LR.B. v. Entwistle
Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941).
Finally, I shall recommend that Respondent Union be
directed to maintain and operate its exclusive job referral
system in a nondiscriminatory manner based on objective
criteria or standards, and that a comprehensive recordkeep-
ing system be initiated which will reflect all available job
opportunities and referrals. Said records must be intelligible
and adequate to full disclosure of the basis upon which
referral is made. Records must be sufficiently visible to
enable applicants for referral to determine whether or not
their referral rights are protected and that referrals are made
in a fair and impartial manner.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER9
The Respondent, Local 394, Laborers' International
Union of North America, AFL-CIO, Elizabeth, New Jersey,
its officers, agents, and representatives, shall:
"See, generally, Isis Plumbing & Heating Co. 138 NLRB 716(1962).
" In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 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.
1. Cease and desist from:
(a) Maintaining and operating its exclusive job referral
system without the use of objective criteria or standards.
(b) Maintaining and operating its exclusive job referral
system in a discriminatory manner.
(c) Discriminatorily failing and refusing to refer Wakil
Abdunafi and Adolph Farmer to jobs through its exclusive
job referral system.
(d) In any other manner restraining or coercing employees
in the exercise of the rights guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Maintain and operate its exclusive job referral system
in a nondiscriminatory manner based upon objective criteria
or standards.
(b) Initiate and maintain a comprehensive recordkeeping
system which will reflect all available job opportunities and
referrals and will fully disclose the basis upon which each
referral is made, and make such records available to job
applicants to enable them to determine for themselves that
their referral rights are protected and that referrals are made
in a fair and impartial manner.
(c) Make whole Wakil Abdunafi and Adolph Farmer for
any loss of earnings suffered as a result of the discrimination
against them by payment to them of sums of money equal to
those which they normally would have earned as wages from
the date of the discrimination against them, as limited by
Section 10(b) of the Act, until such time as Respondent
Union properly refers them to employment in a nondiscrimi-
natory manner pursuant to the lawful operation of a referral
system based on objective criteria or standards, less net
earnings during such period. Backpay and interest thereon is
to be computed in the manner set forth in the section hereof
entitled "The Remedy."
(d) Preserve, and upon request, make available to the
Board or its agents, for examination and copying, all hiring
hall records, dispatch lists, referral cards, and other docu-
ments necessary to analyze and compute the amounts of
backpay due Wakil Abdunafi and Adolph Farmer under the
terms of this Order.
(e) Post in its main office and hiring hall in Elizabeth,
New Jersey, copies of the attached notice marked "Appen-
dix."" Copies of said notice on forms provided by the
Regional Director for Region 22, after being duly signed by
an authorized representative of Respondent, shall be posted
by Respondent immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to members or applicants for referral are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that the notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director for Region 22, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
"In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgement
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
131