Laborers Local 394 (Building Contractors)

National Labor Relations Board - Board Decisions

Apr 4, 1984

269 N.L.R.B. 833 (N.L.R.B. 1984)

LABORERS LOCAL 394 (BUILDING CONTRACTORS)
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-
4763
4 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 17 October 1983 Administrative Law Judge
Thomas T. Trunkes issued the attached decision.
The General Counsel and the Charging Party filed
exceptions and supporting briefs, and the Respond-
ent filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that the Respondent's rule ex-
cluding nonbookmen from the hiring hall after reg-
istering for referrals did not violate Section
8(b)(1)(A) of the Act. We disagree with this con-
clusion for the following reasons.
The Respondent and Building Contractors Asso-
ciation of New Jersey (an association of employers)
are parties to a collective-bargaining agreement.
Pursuant to the collective-bargaining agreement,
the Respondent operates an exclusive hiring hall
from the second floor of a union-owned building.
Prior to March 19821 applicants for referrals
(whether bookmen or nonbookmen 2) entered the
hiring hall, filled out the necessary referral docu-
ments, and remained inside the hiring hall to await
referrals.
On 5 March, at a monthly business meeting, a
union member moved that nonbookmen not be al-
lowed to remain inside the hiring hall after regis-
tering for referrals. The membership passed the
motion without opposition. On 8 March the Re-
spondent implemented the new rule, insisting that
nonbookmen, after registering, wait outside the
building for referrals. When a nonbookman was to
be referred, a union officer called that person's
name from the second floor window.
Section 8(b)(l)(A) makes it an unfair labor prac-
tice for a union "to restrain or coerce" employees
All subsequent dates refer to 1982 unless otherwise indicated.
2 Bookmen are those union members who pay dues on a regular basis.
Nonbookmen includes nonmembers and union members who are more
than 3 months' delinquent in dues payments.
269 NLRB No. 127
in the exercise of the rights guaranteed them by
Section 7. Section 7 gives employees the right
(qualified by circumstances not present in this case)
to join a union or to refrain from joining a union.
Thus, because Section 8(b)(1)(A) protects the exer-
cise of Section 7 rights, union conduct that coerces
an employee into joining a union violates Section
8(b)(1)(A). See Painters Local 277 v. NLRB, 717
F.2d 805 (3d Cir. 1983), enfg. in part and denying
in part Polis Wallcovering Co., 262 NLRB 1336
(1982).
The judge found that the rule excluding non-
bookmen from the hiring hall after registering for
referrals "encourages nonmembers to join the
Union and encourages members who are delin-
quent in their payment of dues to remedy that con-
dition." 3 We agree. But, we find further that the
rule excluding nonbookmen from the hiring hall
after they register for referrals "encourages" be-
cause it tends to coerce nonbookmen into joining
the Union. 4 Accordingly, we conclude that the Re-
spondent violated Section 8(b)(1)(A) by implement-
ing the rule excluding nonbookmen from the hiring
hall after they register for referrals. 5
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for the judge's Con-
clusion of Law 3.
"3. Respondent, by excluding nonbookmen from
its hiring hall after they register for referrals, has
restrained and coerced employees in the exercise of
the rights guaranteed them by Section 7 of the Act,
and has thereby engaged in unfair labor practices
within the meaning of Section 8(b)(1)(A) of the
Act."
2. Add the following as Conclusion of Law 4.
"4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act."
The Remedy
Having found that the Respondent violated Sec-
tion 8(b)(1)(A) of the Act, we shall order it to
s The judge rejected the Respondent's claim that the rule was neces-
sary to control misbehavior of nonbookmen.
4 The union membership believed the rule might have such a result.
According to the judge, the union membership, frustrated because they
could not obtain as much employment as they desired, hoped by passing
the rule "to avoid sharing work with non[bookmen] whom [the member-
ship] considered 'freeloaders."'
s The judge found no violation of Sec. 8(bXIXA) because there was no
evidence that the Union's action had the effect of discriminating against
nonbookmen in regard to hire, tenure of employment, or terms or condi-
tion of employment. We note that coercion, not discrimination, is the
touchstone of Sec. 8(bIXA), and that the test of coercion is not whether
a union's action proves effective, but whether the action tends to coerce.
See, e.g., Painters Local 277, supra; Steelworkers Local 5550 (Redfield Ca),
223 NLRB 854 (1976).
833
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cease and desist and to take affirmative action de-
signed to effectuate the policies of the Act.
ORDER
The National Labor Relations Board orders that
the Respondent, Local 394, Laborers' International
Union of North America, AFL-CIO, Elizabeth,
New Jersey, its officers, agents, and representa-
tives, shall
1. Cease and desist from
(a) Restraining and coercing employees in the
exercise of the rights guaranteed them by Section 7
of the Act by excluding nonbookmen from its
hiring hall after they register for referrals.
(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following action necessary to effec-
tuate the policies of the Act.
(a) Rescind the rule excluding nonbookmen from
its hiring hall after they register for referrals.
(b) Post at its offices, meeting halls, and hiring
halls copies of the attached notice marked "Appen-
dix." 6 Copies of the notice, on forms provided by
the Regional Director for Region 22, after being
signed by the Respondent's representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to members are customarily posted. Reasona-
ble steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(c) Furnish to the Regional Director sufficient
signed copies of the attached notice for posting at
the premises and projects of the employers of
Building Contractors Association of New Jersey, if
they are willing.
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
6 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT restrain or coerce any of you by
excluding nonbookmen from our hiring hall after
they register for referrals.
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL rescind the rule excluding nonbook-
men from our hiring hall after they register for re-
ferrals.
LOCAL 394, LABORERS' INTERNA-
TIONAL UNION OF NORTH AMERICA,
AFL-CIO
DECISION
STATEMENT OF THE CASE
THOMAS T. TRUNKES, Administrative Law Judge. The
above-captioned case was heard in Newark, New Jersey,
on February 28 and June 16, 1983, based on a charge
filed by Wakil Abdunafi, herein Abdunafi or the Charg-
ing Party, on August 23, 1982,1 and a complaint issued
therein on October 7, alleging that Local 394, Laborers'
International Union of North America, AFL-CIO,
herein Respondent or the Union, violated Section
8(b)(l)(A) of the National Labor Relations Act, herein
the Act, by refusing to allow nonmember job referral ap-
plicants, herein nonmembers, to enter and remain in Re-
spondent's hiring hall while awaiting job referrals. Re-
spondent filed an answer, denying the commission of any
unfair labor practices. Building Contractors Association
of New Jersey, Party to the Contract, herein BCA, was
not represented at the hearing. However, the General
Counsel, Respondent, and the Charging Party participat-
ed in this proceeding and had full opportunity to adduce
evidence, to examine and cross-examine witnesses, argue
orally, and to file briefs. Oral arguments were presented
at the close of the case by counsel for the General Coun-
sel, herein the General Counsel, counsel for Respondent,
and the Charging Party. In addition, both General Coun-
sel and Respondent submitted timely briefs.
The sole issue presented is the following:
Whether Respondent, by refusing to allow non-
members awaiting job referrals to enter and remain in its
hiring hall, while permitting members of Respondent to
thus remain inside the hiring hall, restrained and coerced
nonmembers in the exercise of the rights guaranteed to
I All dates hereinafter will refer to 1982, unless otherwise specified.
834
LABORERS LOCAL 394 (BUILDING CONTRACTORS)
them in Section 7 of the Act, thus engaging in unfair
labor practices within the meaning of Section 8(b)(1)(A)
of the Act?
On the entire record in this case, including my evalua-
tion of the witnesses, based on the evidence received and
my observation of their demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
BCA, a New Jersey corporation, an association of em-
ployers whose members are engaged in the building and
construction industry, exists for the purpose, inter alia, of
representing its employer-members in negotiating and ad-
ministering collective-bargaining agreements with labor
organizations, including Respondent. Annually, the em-
ployer-members of the association collectively provide
and perform building and construction services valued in
excess of $50,000, of which building and construction
services valued in excess of S50,000 were provided and
performed within the States of the United States other
than the State of New Jersey wherein BCA is located,
and have received construction materials at their respec-
tive jobsites located in New Jersey, which materials
were valued in excess of $50,000, and which materials
were shipped to said jobsites directly from outside the
State of New Jersey. Respondent admits, and I find, that
BCA is, and has been at all times material herein, an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
Respondent admits, and I find, that it is a labor organi-
zation within the meaning of Section 2(5) of the Act.
111. THE ALLEGOED UNFAIR LABOR PRACTICES
A. Background
For many years BCA has negotiated collective-bar-
gaining agreements with Respondent covering laborers
employed by BCA's employer-members. At all times ma-
terial herein, and pursuant to the collective-bargaining
agreement between Respondent and BCA, Respondent
has maintained and operated on behalf of employer-mem-
bers of BCA an exclusive job-referral system whereby all
laborers to be employed by BCA's employer-members at
construction sites located in and about Elizabeth, New
Jersey, must be referred to them by Respondent. Since
September 1977 Respondent has maintained a compre-
hensive hiring-hall plan to insure that job referrals are
made in a nondiscriminatory fashion. (See G.C. Exh. 2.)2
No evidence was adduced at the hearing that prior to
March 5, 1982, Respondent was not in compliance with
the Board Order requiring it to operate the hiring hall in
a nondiscriminatory manner.
2 This plan was established subsequent to the issuance of a complaint
which alleged that Respondent violated Sec. 8(b)(IXA) and (2) by, inter
alia, maintaining and operating its exclusive job-referral system in a dis-
criminatory manner. In 1980 the Board found Respondent to have been
in violation of the Act prior to the establishment of its hiring-hall plan in
1977. Laborers' Local 394 (Building Contractors), 247 NLRB 97 (1980).
The undisputed evidence revealed that Respondent oc-
cupies a building located at 647 Marshall Street, Eliza-
beth, New Jersey, a two-story brick building containing
the union hiring hall and offices on the second floor. The
first floor is occupied by a business having no connection
with Respondent. The hiring hall has several windows
overlooking Marshall Street, as well as two offices. The
first is occupied by John Riggi, business manager of Re-
spondent, and the second office is occupied by John Cor-
sentino, secretary of Respondent, both of whom are ad-
mittedly agents of Respondent.
The Charging Party testified that, prior to March
1982, the procedure for an individual seeking a job refer-
ral from the hiring hall was as follows: The applicant
would enter the hall, approach a desk inside Corsentino's
office, and inform whoever was sitting at the desk that
he was seeking a job referral. The applicant would then
sign a daily sign-in sheet, a roster sheet, a supplementary
sheet to record the applicant's work experience, and an
assessment form.3
After applicants signed the various sheets, some would
proceed into Riggi's office while others sat on the bench
in the hall waiting for referrals. As jobs became avail-
able, Corsentino called names of applicants for available
positions. Those responding would receive referral slips,
and would then proceed to the job in question.
B. The Business Meeting of March 5, 1982
Respondent held a monthly business meeting on
March 5, 1982. According to the Charging Party, at this
meeting after Riggi informed the members that work was
"slow," member Charles Stango Sr. charged that non-
bookmen were obtaining a majority of work, while
bookmen were not getting their fair share of work.4
Thereafter, member Resbeth "Nick" Farmer, herein
Farmer, in agreeing with Stango that nonbookmen were
obtaining a majority of work, stated that they should be
kept out of the hall, and offered a motion that bookmen
not be allowed to remain on the premises after register-
ing for employment. The motion was carried with no op-
position. The Charging Party stated that he abstained
from voting. Thereafter, Riggi stated that he would
comply with the will of the membership, but predicted
that as soon as he did certain people at the meeting
would file charges with the National Labor Relations
Board. 5
Farmer testified on behalf of Respondent. He stated
that he became very concerned with respect to the con-
dition of the union hall. He further stated that he ob-
served the hall and restroom were filthy, marijuana was
flushed in the toilet, and wine bottles were "all over the
place." He described the hall as being a "dump" and a
"slum." Approximately a week prior to the union meet-
3 Conflicting testimony was adduced at the hearing as to whether or
nor the assessment constituted dues involuntarily obtained from non-
member job applicants. As this matter has no bearing on the issues in the
instant case, and as no allegation was made that the assessment violated
the Act. I find it unnecessary to resolve this issue.
4 Bookmen are members who pay dues on a regular basis. Nonbook-
men encompass nonmembers and union members who are delinquent in
dues payments in excess of 3 months.
I He was correct in his prediction.
835
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing of March 5, he spoke to Riggi about the conditions
found in the hiring hall. According to Farmer, Riggi was
not impressed with his complaints, and took no action to
rectify the condition in the hall. 6
Farmer asserted that, when he was recognized at the
March 5 meeting, he stated to the president of the Local,
"For 27 years while I was in that local we worked hard
to buy this building and this is our building, and that I
don't see why every nonbookmember can come up here
and destroy our building, its condition, for the last year,
I say, it's filth. And I said, what are we going to do
about it?"7 Thereafter, Farmer offered a motion that all
nonbookmen not be allowed in the hall as long as they
conducted themselves "that way." He further suggested
that the executive board and the business manager have
authority to keep the nonbookmen out of Respondent's
hallway. Farmer denied having engaged in any discus-
sion concerning the subject matter of nonmembers taking
business from members.
Two other members of Respondent also testified at the
hearing. Charles Sottes and Michael Berzito, both of
whom were present at the March 5 meeting, supported
Farmer's assertion that nonmembers were responsible for
causing filthy conditions at the hall. Berzito further
charged that nonmembers misbehaved by smoking
"funny cigarettes" and drinking in excess. Berzito further
testified that these conditions had been present for ap-
proximately 4 or 5 years.
None of Respondent's witnesses furnished names of
any nonmembers whom they charged with misbehavior
on Respondent's premises.
The minutes of the March 5 union meeting were re-
ceived into evidence. None of the parties disputed the
accuracy of the minutes.
Under the heading, "Business Manager's Report," the
following is stated:
John Riggi reported that work is very slow. No
new work starting except Kelvan & McGee at
Schering. Exxon is very slow.
Later, under "New Business," the following is record-
ed:
Charles Stango asked for the floor that the Man
off the Street has more rights to our union then the
Book Man. I have to pay dues for members of
Long Standing because they can't work. I will
never again work next to a Non Book Member.
Nick Farmer took the floor and said that the Busi-
ness Manager and Executive Board Should do
Something about the Non Book Members who are
making a dump out of our Local Union Hall. Nick
Farmer made a motion to give the power to the
Business Manager & Executive Board to Solve the
Problem of putting Non Bookmen outside & Book-
men inside our building. Seconded by Anthony
DeMaio. All were in favor. John Riggi said he will
e In Farmer's opinion, based on observations made by him, the condi-
tion in the hall was caused by nonmembers.
? The president of the Local is Joe LaSalle. The record does not re-
flect his response.
do whatever the Membership wants. We are going
to Start to respect ourselves more.
Under the heading, "Good Welfare," the following
was noted:
Nick Farmer made a motion that Book Men sign
up inside the Building & Non Book Men sign up
outside. Seconded by Charles Scotto. All were in
favor.
Implementation of the Motion of March 5
According to the Charging Party, the motion made by
Farmer was implemented the following Monday, March
8. He observed that a desk was set up in the hallway
downstairs at the doorway to the building. Nonbookmen,
after conducting their business at the desk, were not per-
mitted to enter the union hall, but were required to
remain outside on the street. After approximately 3 or 4
weeks, the desk was placed at the top of the stairs at the
entrance to the hiring hall. The Charging Party further
asserted that thereafter, and continuing to date, nonbook-
men walk upstairs, conduct their business at the desk,
and return to the street. When it was necessary to inform
nonbookmen of job referrals, Corsentino called out the
window from the second floor the name of the individ-
ual he was seeking.
According to the Charging Party, the nonbookmen
were compelled to remain outside the hiring hall, both in
fair weather or foul. In addition, none of the nonbook-
men were permitted to utilize the restrooms in the hiring
hall. (The Charging Party testified that restrooms were
available approximately two blocks from the hiring hall.)
John Corsentino, secretary-treasurer and office manag-
er of Respondent, was the sole agent of Respondent
called to testify.
On direct examination, Corsentino stated that, follow-
ing the March 5 meeting, Respondent implemented the
new exclusionary policy voted on by the membership.
Both bookmen and nonbookmen signed the roster sheet,
the daily sign-in sheet, etc., at the same location. There-
after, the nonbookmen were obliged to leave the union
hall and wait in the street until called for a job referral.
However, in winter, they were permitted to stay in the
hall. He further testified that to the best of his knowl-
edge (no records were maintained) there was no drastic
change in attendance of nonmembers8 at the union hall
in March, April, or May.1982.
Corsentino further testified that in the past 5 years
conditions at the union hall with respect to cleanliness
had deteriorated. He attributed this condition to the
influx of nonmembers seeking higher paying jobs
through the union hiring-hall system. He agreed with the
membership's decision to exclude nonmembers9 from the
hiring hall.
8 By "attendance of nonmembers," I conclude that he meant registra-
tion of nonbookmen, as it is undisputed that nonbookmen were excluded
from the use of the hiring hall following registration after March 5.
i Although the term "nonmember" was used throughout the hearing
with reference to the exclusionary policy, as the minutes of the March 5
meeting indicates, I have concluded that the exclusion encompassed both
Continued
836
LABORERS LOCAL 394 (BUILDING CONTRACTORS)
On cross-examination, Corsentino conceded that, on
receiving complaints from members about unruly behav-
ior of nonmembers, he took no action against individuals
about whom the complaints were made. His justification
for this failure to act was that he had no authority to dis-
cipline anyone without consent of the union membership
as a whole. Corsentino could not furnish names of any
specific nonmembers who allegedly were creating prob-
lems at the union hall over a 5-year period.
Corsentino also acknowledged that, prior to 1982,
there was substantially more work available for laborers.
Discussion and Analysis
The General Counsel contends that, prior to March
1982, nonmembers enjoyed the same privileges as union
members respecting admission to the union hall. Thereaf-
ter, all nonmembers were excluded from the use of the
union hall solely on the basis of their lack of union mem-
bership.
The effect of this action of the Union discourages non-
members from using the hiring hall and bars them from
effectively monitoring the Union's referral system. Such
conduct discriminates against nonmembers and serves the
specific purpose of reserving work for union members.
Respondent denies having violated the Act in any
manner. It contends that it has the authority to exclude
nonmembers from its hiring hall, especially when non-
members engage in "an obstructive harassing type of
conduct," and that said exclusion does not deprive the
nonmembers of their rights guaranteed in Section 7 of
the Act.
The main thrust of Respondent's argument is that the
nonmembers were barred from the hiring hall because, as
a group, they conducted themselves "in an obstructive
and harassing type of manner."
The credible facts do not warrant this conclusion. In
my opinion, insufficient evidence was adduced at the
hearing to convince me that nonmembers acted in any
manner which justified their explusion and denial of use
of the hiring hall. The evidence revealed the following:
1. Respondent's witnesses averred that, for a period of
approximately 5 years, nonmembers allegedly were abus-
ing the hiring hall facilities. Yet, despite this alleged mis-
behavior by nonmembers, no corrective action was taken
until March 5, 1982.
2. Despite constant interrogation by the General Coun-
sel, not one specific individual, whether member or not,
was identified by name or description as an abuser of the
hiring hall.
3. Although allegedly complaints of misbehavior by
nonmembers were reported to Respondent's office man-
ager, no action was taken by any of Respondent's offi-
cers to expel the offenders or bar them from the prem-
ises.
I do not accept Corsentino's testimony that he had no
authority to institute corrective action unless and until
the full union membership authorized him to do so.
Union officials are elected or appointed to specific func-
tions. Surely, someone must have authority, whether
nonmembers and members delinquent in dues, collectively called non-
bookmen.
Corsentino or another official, to maintain order in Re-
spondent's hiring hall.
4. Not until Riggi stated at the March 5 meeting that
work was slow,-and I take official notice that 1982 was
a recession year-and not until member Charles Stango
complained about nonbookmen having greater rights in
the Union than members and declared that he would no
longer work with nonbookmen,' o was a motion made to
exclude nonmembers from the use of the hiring hall, al-
legedly because of their misbehavior in the hall.
Based on the above set of facts, I do not credit Re-
spondent's witnesses that the motion to expel non-
members resulted from the misbehavior of said non-
members. I am in accord with the General Counsel that
Respondent's asserted motive for adopting the rule was
pretextual. I further conclude that the true motive
behind the motion stemmed from the frustrations of
union members who, because of the recent recession,
were unable to obtain as much work as they desired. In
response to these conditions, they took whatever steps
they could within what they believed were the limits of
the law, to avoid sharing work within nonmembers
whom they considered "freeloaders." As Respondent
was operating an exclusive hiring hall, it could not legal-
ly deprive nonmembers of their Section 7 rights by deny-
ing to them the right to register for employment. It did
the next best thing. It deprived them of the right to
physically remain in the hall while awaiting job referrals.
The issue thus presented is whether Respondent, by
denying nonmembers the physical use of its hiring hall
while they awaited job referrals after signing the daily
sign-in sheet, restrained and coerced them fron exercising
the rights guaranteed by Section 7 of the Act in violation
of Section 8(b)(l)(A) of the Act.
The principle that a labor organization which repre-
sents employees in an appropriate bargaining unit is
bound by law to fairly represent all the employees in the
unit was first enunciated by the Supreme Court in Wal-
lace Corp. v. NLRB, 323 U.S. 248 (1944). There, at 255-
256, the Court stated:
The duties of a bargaining agent selected under
the terms of the Act extend beyond the mere repre-
sentation of the interests of its own group members.
By its selection as bargaining representative, it has
become the agent of all the employees, charged
with the responsibility of representing their interest
fairly and impartially.
In 1962, the Board, in applying the doctrine of the
duty of fair representation, stated in Miranda Fuel Co.,
140 NLRB 181, 185 (1962), the following:
· . . we conclude that Section 8(b)(1)(A) of the Act
accordingly prohibits labor organizations, when
acting in a statutory representative capacity, from
taking action against any employee upon consider-
ations or classifications which are irrelevant, invidi-
ous, or unfair. [Fn. omitted.]
'O See minutes of the meeting (R. Exh. I)
837
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Following the Miranda decision, the Board has decid-
ed numerous cases involving the doctrine of duty of fair
representation. The majority of said cases applied the
doctrine in grievance and arbitration proceedings, e.g.,
Machinists Local 697 (HO. Canfield Rubber Co.), 223
NLRB 832 (1976), and Boilermakers Local 72 (Combus-
tion Engineering), 260 NLRB 232 (1982).
However, there have been a number of cases involving
a labor organization's misuse of its hiring hall which had
the effect of discriminating against nonmembers in regard
to hire or tenure of employment or term or conditions of
employment. See, e.g., Operating Engineers Local 825 (H.
John Homan Co.), 137 NLRB 1043 (1962).
Both the General Counsel and Respondent are in
accord with the following legal precepts:
1. The Supreme Court's ruling that the only encour-
agement or discouragement of union membership prohib-
ited by the Act is that which is accomplished by discrim-
ination. Teamsters Local 357 v. NLRB, 365 U.S. 667, 676
(1961).
2. Section 8(b)(l)(A) of the Act assures a union free-
dom where its legitimate internal affairs are concerned.
NVLRB v. Shipbuilders (U.S. Lines Co.), 391 U.S. 418, 424
(1968).
In the instant case, the sole discriminatory conduct of
Respondent consisted of its refusal to permit non-
members the physical use of its hiring hall.
The General Counsel argues that this act of Respond-
ent not only leaves the nonmembers out in the cold but,
further, precludes them from checking the daily referral
list to ascertain that referrals are made in a proper
manner.
I find no merit in the General Counsel's contention for
the following reasons:
1. No evidence was adduced that nonmembers have
been denied access to checking the referral list. Not one
nonmember complained that the system established by
Respondent was not fairly implemented.
2. The Charging Party, a member of Respondent, had
free access to the hiring hall. No evidence was adduced
through him that any impropriety existed subsequent to
the establishment of the exclusionary rule by Respondent
with respect to the referral system.
3. The General Counsel, after having obtained union
records subpoenaed by her, was unable to demonstrate
that, subsequent to March 5, a marked dropoff of regis-
tration of nonbookmen took place.
The Board has held that "the nonunion applicant for
employment, who utilized the hiring hall, is clearly not
an employee in the unit which is represented by the
Union and is therefore not entitled as a matter of right to
the unconditional provision of services that the Union must
make available to all unit employees without imposition
of special fees on those who are not among its mem-
bers." (Emphasis added.) Machinists Local 697 (H.O.
Canfield Rubber Co.), 223 NLRB 832, 835 fn. 4 (1976).
I have interpreted this statement to signify that non-
member job applicants do not enjoy equal rights and
benefits as nonunion employees covered by a collective-
bargaining agreement.
The record established that Respondent and its mem-
bers own the hiring hall. As long as nonbookmen are
permitted to register for employment, sign in the sign-in
sheets, and are referred to work on a nondiscriminatory
basis, Respondent owes them no further duty. If Re-
spondent desires that the hiring hall be used for the com-
fort and enjoyment solely for its members in good stand-
ing, it should be permitted to do so. This action is per-
missible as it concerns Respondent's legitimate internal
affairs, and does not, with no evidence to the contrary,
per se, interfere with job opportunities of nonbookmen.
It is evident that the exclusionary rule of Respondent
encourages nonmembers to join the Union and encour-
ages members who are delinquent in their payment of
dues to remedy that condition. However, I do not con-
clude that this encouragement of union membership is
accomplished by discrimination. Thus, the second part of
the Supreme Court's precept established in Teamsters
Local 357, supra, is not present in the instant case.
Accordingly, I find that Respondent is not operating
an exclusive hiring hall in a discriminatory manner in
violation of Section 8(b)(1)(A) of the Act, as alleged by
the General Counsel, and I recommend that the com-
plaint be dismissed.
CONCLUSIONS OF LAW
1. Building Contractors Association of New Jersey is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. Respondent, Local 394, Laborers' International
Union of North America, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. The General Counsel has failed to prove that Re-
spondent violated Section 8(b)(1)(A) of the Act, as al-
leged in the complaint.
[Recommended Order for dismissal omitted from pub-
lication.]
838