Local Union No. 305, Plumbers

National Labor Relations Board - Board Decisions

Jun 21, 1974

211 N.L.R.B. 826 (N.L.R.B. 1974)

826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 305, United Association of Journey-
men and Apprentices of the Plumbing and Pipefit-
ting Industry of the United States and Canada
(Mechanical Contractors Association of Connecti-
cut, Inc., acting through its agent , Eastern Con-
necticut Mechanical Contractors Association) and
Anthony DiMella and Victor J. Bartoluccl .Cases.
1-CB-2385 and 1-CB-2389
June 21, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On February 25, 1974, Administrative Law Judge
Joseph I. Nachman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
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 brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.2
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had the opportunity
to present their evidence, the National Labor
Relations Board has found that we violated the
National Labor Relations Act and ordered us to post
this notice and abide by its terms.
WE WILL NOT restrain or coerce any applicant
for employment pursuant to the exclusive hiring
hall we operate, by refusing to refer them to jobs
for reasons that include lack of membership in
Local 305.
WE WILL NOT in any other manner restrain or
coerce any employee or applicant for employ-
ment through the exclusive hiring hall we operate,
in the exercise of rights guaranteed them by
Section 7 of the Act.
WE WILL make whole Victor Bartolucci and
Anthony DiMella for any loss of pay they
suffered by reason of our refusal to refer them to
jobs because they lacked membership in Local
305.
WE WILL, upon request, make available to the
Board or its authorized agents, at all reasonable
times, all records relating in any way to the hiring
and referral system.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Local Union No.
305, United Association of Journeymen and Appren-
tices of the Plumbing and Pipefitting Industry of the
United States and Canada, New London, Connecti-
cut, its officers , agents, and representatives , shall take
the action set forth in said recommended Order,
except that the attached notice is substituted for the
Administrative Law Judge's notice.
I The 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, enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 In the absence of exceptions we adopt, pro forma, the Administrative
Law Judge 's dismissal of the complaint's allegation of an independent
8(bXIXA) violation regarding the operation of the referral and dispatching
system.
LOCAL 305, UNITED
ASSOCIATION OF
JOURNEYMEN AND
APPRENTICES OF THE
PLUMBING AND
PIPEFITTING INDUSTRY
OF THE UNITED STATES
AND CANADA
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Seventh Floor, Bulfinch Building, 15
New Chardon Street, Boston, Massachusetts 02114,
Telephone 617-223-3300.
211 NLRB No. 124
LOCAL UNION NO. 305, PLUMBERS 827
DECISION
STATEMENT OF THE CASE
JOSEPH I. NACHMAN, Administrative Law Judge: This
proceeding tried before me at New London, Connecticut,
on December 3-5,1 with all parties present or represented
by counsel, involves a consolidated complaint2 pursuant to
Section 10(b) of the National Labor Relations Act, herein
the Act, which alleges in substance that Local Union No.
305, United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the United
States and Canada (herein Respondent, the Union, or
Local 305), in the operation of a contractual exclusive
hiring hall provision (conceded to be valid on its face),
discriminated against Anthony DiMella and Victor J.
Bartolucci in the matter of referral tojobs, because of their
lack of union membership, thereby violating Section
8(b)(1)(A) of the Act.3 By answer Respondent admitted
certain allegations of the complaint, but denied the
commission of any unfair labor practice. It admits that for
the major part of 1973 it refused to refer DiMella and
Bartolucci to jobs, but claims that such refusal was based
solely and only on the fact that they were not "qualified
journeymen" within the meaning of the contractual
provision that the Union would refer such persons to the
contractors. The issue thus presented for decision is what
was Respondent's "true purpose," or "real motive" in
denying referral to DiMella and Bartolucci? For reasons
more fully hereafter set forth I find and conclude that such
lack of referrals was the absence of union status of the
individuals mentioned, and that by such refusal to refer,
Respondent coerced and restrained employees in the
exercise of rights guaranteed them by Section 7 of the Act,
thereby violating Section 8(b)(1)(A) of the Act.
At the trial all parties were afforded full opportunity to
present relevant and material evidence, to examine and
cross-examine witnesses, to argue orally on the record, and
to submit briefs. Oral argument was waived. Briefs
submitted by the General Counsel and Respondent,
respectively, have been duly considered. Upon the entire
record in the case, including the pleadings, stipulations of
counsel, the evidence, including my observation of the
demeanor of the witnesses while testifying, I make the
following:
FINDINGS OF FACTO
Background
For some years Respondent has been the recognized
collective-bargaining representative of the plumbers, steam-
fitters, and welders employed by employers in the
building and construction industry, in the general environs
of New London, Connecticut. A contract between Me-
chanical Contractors Association of Connecticut, Inc., and
Respondent Union, renewed from time to time, provided
I This and all dates hereafter mentioned are 1973 unless otherwise
indicated
2 Issued November 28, upon charges filed by DiMella and Bartolucci, on
August 7 and 13, respectively
3 No violation of Sec 8(b)(2) of the Act is alleged.
4 No issue of commerce or labor organization is presented The
the terms and conditions of employment of the aforesaid
employees. The latest such contract mentioned in the
evidence, in effect from October 28, 1972, through October
27, 1973, and thereafter from year to year unless terminat-
ed by notice, provides for an exclusive hiring hall to be
operated by the Union.5
Article XVI of the contract between the parties contains
the hiring hall provisions. It provides in substance that
contractors will employ only qualified journeymen, and a
journeyman is defined as one who had had at least 5 years'
actual practical experience in the trade, and has either (1)
successfully completed an approved apprenticeship pro-
gram; (2) has previously worked as a journeyman for a
signatory contractor, and whose services have proved
satisfactory; or (3) has successfully passed a competency
test, any question as to what constitutes a competency test
to be resolved by a Joint Hiring Committee provided for in
the agreement. The contract additionally provides that
contractors will call the Union for all journeymen they
require; the Union will establish and maintain appropriate
registration facilities where applicants may register the
time and date of registration, by crafts; the Union will
refer from that list on a nondiscriminatory basis, without
regard to union membership, or the lack thereof; that all
referrals may be rejected by the employer; the Union and
the contractor will post in places where notices to all
employees and applicants for employment are customarily
posted, a notice containing all provisions relating to the
operation of the hiring hall under the contract; a joint
hiring committee, composed of an equal number of
representatives from the union and the contractors shall be
established which will supervise and control the operation
of the job referral system, and settle all questions that may
apse in the administration of the system.
Employment history of Anthony DiMella
Prior to 1969, DiMella worked for about 12 years at
Electric Boat Division of General Dynamics. During this
period he worked in the pipe shop, where he did mostly
rigging, moving components aboard the ship, testing, and
connecting them, performed such work under the supervi-
sion of a pipefitter who was in charge of a group of men
and had the responsibility for what was done. In mid or
late summer of 1969, DiMella contacted Anthony Polcaro,
the general foreman for Ebasco on the Millstone I project,
and a vice president of Respondent Union, seeking work
on that job. Polcaro questioned DiMella regarding his
knowledge of pipe and pipefitting, and then told the latter
that his employment had to be cleared through the
business agent, which he would do, and would call DiMella
in a few days. Several days later Polcaro called DiMella
and stated that the latter's employment had been cleared
with the business agent, and that he should report to the
rigging foreman on the job the following day. DiMella did,
and worked for that foreman for about a year when that
complaint alleges and the answer admits facts which establish the
jurisdictional elements referred to I find those facts to be as pleaded
5 How long this hiring hall has been in operation, the record does not
show It does appear that it was in operation at least as far back as the
contract for the 1966-69 period
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
kind of work was phased out, and he was transferred to the
turbine building. There DiMella was teamed up with a
welder to run vacuum lines. According to the uncontradict-
ed testimony of DiMella, he cut pipe to length, put it at
proper elevation, making provision for hangers, put the
joints together either by screwing them on, by socket
weldings, or holding it for the welder. This job terminated
for DiMella sometime in October 1970, for lack of work,
and DiMella again went to Polcaro for a work assignment.
Polcaro told DiMella to lay off for a few weeks and then
see Impellitteri, business agent of Respondent. When
DiMella called Impellitteri, the latter stated that he had
"bookmen" out of work, but that he would take care of it.
In about 2 weeks, after another telephone call from
DiMella, Impellitteri assigned DiMella to contractor W.J.
Barney who was building a plant for the Pfizer Company,
where DiMella was paired with a welder, the pair running
8-inch cast iron pipe with a 6-inch return. DiMella and his
welder cut the pipe to proper length, beveled the flanges,
and the two ends were welded by the welder; the pipe
being placed into position on permanent hangers and
bolted on. DiMella testified without contradiction that he
was the pipefitter on the job, and directed the work from
the plans. This job to which DiMella was referred in
November 1970, ended for him in October 1971, when he
was laid off for lack of work.
After being laid off the last-mentioned job in October
1971, DiMella again communicated with Impellitteri for
work and was told that things did not look good; that he
had a lot of "bookmen" out of work, but that DiMella
should "hang on" and he would be taken care of. About 2
weeks later Impellitteri telephoned DiMella and dis-
patched him to Bechtel Company, the contractor on the
Millstone II job, where Polcaro was the general foreman.
There DiMella was assigned to a pipefitting gang of 8 to 12
men which prepared pipe which varied in size from 1 to 8
inches, for the welders, and made hangers. This job lasted
until March 1972, when he was laid off for lack of work.
With the end of that job DiMella again called Impellit-
teri to report the fact that he was out of ajob and wanted
work. According to DiMella whose testimony I credit,
Impellitteri then stated that work was very slow; that a lot
of "bookmen" were out of work and they come first, but "I
will take care of you." Thereafter, DiMella called Impellit-
teri periodically, but each time received basically the same
answer . Finally in late August, DiMella called Polcaro
informing the latter of his talks with Impellitteri, and asked
if the latter could assist him in getting work. Polcaro stated
that he had not been working himself, but that he was
going back to work the following day on the Montville
power home job, and would see what he could do.
Sometime in September, DiMella received a call from one
Delaporta, a union steward on the Montville job, who
stated that there would be need for a substantial number of
6 After about February 1, DiMella went to the Union accompanied by
Bartolucci , the other discnnunatee in this case . Those joint visits will be
detailed after setting out Bartolucci 's work record.
r My findings in this section are based on the credited testimony of
DiMella . Testifying as a witness for Respondent , Impellitteri denied that he
ever toldDiMella or Bartolucci that there were "bookmen" out of work and
claimed that he always used the words "qualified men." He admitted,
however, that in the language of the Union the terms "bookmen" and
men on the Millstone I Ebasco job the following day, and
that DiMella should call Impellitteri and get a referral.
DiMella did so and was told that he had intended to refer
DiMella to the Montville job the following Monday, and
did not want to refer him to Ebasco job. When DiMella
protested that Delaporta had told him to can, Impellitteri
changed his mind and told the former to report to Union
Steward Preolla at the Ebasco job immediately. DiMella
did as directed and worked on the Ebasco job continuously
until January 5, 1973, when he was laid off for lack of
work. While on the Ebasco job DiMella was paired with a
welder and worked in the installation of a radiation waste
line where pipe varying from 4 to 8 inches was used.
Following his layoff at the Ebasco job DiMella, as he
had in the past, called Impellitteri asking for work,
repeating such calls each week for about a month. Each
time Impellitteri told DiMella that at the time things did
not look good; that he had "bookmen" out of work, and
that they came first; that half the State was on his back for
work; but not to worry, that he would be taken care of.6
Sometime in April, Impellitteri called DiMella and told the
latter to call Assistant Business Agent Quinn, that he
needed some gas fitters and that DiMella might get a
referral to such a job. DiMella did so and was assigned to a
gas fitter's job which lasted until the end of June.7
Employment history of Victor Bartolucci
About August 1969, Bartolucci, who had known Impel-
litteri for some time, telephoned the latter and asked about
the possibility of a referral to a job. Impellitteri replied that
a night crew was being started at the Millstone job, and
that if he wanted the job he should report to union steward
Delaporta at the main gate at 3:45 that afternoon and the
latter would take care of the matter. Bartolucci reported as
directed, and was assigned to "bull gang," doing rigging,
some pipefitting, grinding, beveling, or any other job
assigned to him by the foreman. When he was terminated
for lack of work in about February 1970, Bartolucci went
to the union hall and reported the fact to Impellitteri.
About 3 or 4 weeks later Bartolucci was referred to a
contractor on the Montville Power House job, and
approximately a month later was transferred to another
contractor on the same job. On this job Bartolucci was
hired and worked as a pipefitter, doing some pipefitting as
well as rigging , hanging pipe, grinding, and also worked
some on condensers and valves. This job ended for
Bartolucci in October 1970, when he was terminated for
lack of work. Following this job Bartolucci was referred by
Impellitteri about mid-December 1970, to the Millstone
Unit I job, where he reported to Polcaro, and did
essentially the same type of work until his termination in
late January 1971, for lack of work. In February or March
1971, Impellitteri referred Bartolucci to a shopping center
job where, as one of a crew of three pipefitters from Local
"qualified men" mean the same thing , that "qualified" people came first,
and that so long as there were "qualified" people out of work, neither
fhMella nor Bartolucci was entitled to referral . He also admitted that he
told DiMella and Bartolucci that there were other fully qualified people he
had to put to work first . To the extent that there is a conflict between the
testimony of Impellitten on the one hand and DiMella and Bartolucci on
the other, I credit the latter.
LOCAL UNION NO. 305, PLUMBERS
305, he installed tubing outside the air-conditioning
components. When this job was completed about mid-July
1971, Bartolucci was terminated. Following this Bartolucci
again talked with Impellitteri about work; the latter saying
that things were slow and it would take a while because
"bookmen" were out of work and had to be placed. In
August 1971, Impellitteri sent Bartolucci to the Montville
Power job, Unit I, to work for Champion Construction
Company, telling him at the time that it would be a short
job. It in fact lasted about 12 days and Bartolucci was
promptly transferred to the Bechtel Unit No. 2, being
terminated in March 1972, for lack of work. At both jobs
he did essentially the same type of work, namely
pipefitting. After again reporting to Impellitteri that he was
now out of work, the latter referred Bartolucci to the
submarine base where he worked until the end of May
1972, doing the same type of work as at the other jobs, and
was then terminated for lack of work. Although Bartolucci
frequently made known his availability for work, it was not
until September 1972, that Impellitteri again referred him
to a job. This referral was to Ebasco for repair work at
Unit I Millstone Point. Here Bartolucci worked as a
pipefitter until terminated for lack of work on January 5,
1973.
After January 5, and for a period of 6 weeks to 2 months,
Bartolucci spoke with Impellitteri a number of times, both
at his office and on the street when they chanced to meet,
about his desire for work. On each occasion the latter
stated in substance that things were very slow, with
"bookmen" both locally and throughout the State out of
work; that he was getting calls from other business agents
asking that he put their "bookmen" to work; but that as
soon as the situation was such that he could put permit
men to work, Bartolucci would be referred promptly.8
Following these meetings Bartolucci and DiMella made it
a practice to go to the union hall together. Between about
March 1 and about mid to late August, they made a
number of visits to the union hall9 seeking referrals, but
they were unsuccessful'.10' Although Impellitteri was not
always present when the two men visited the union hall, on
those occasions that he was present, he repeated, as above
indicated, that things were slow; that "bookmen" whom he
had to place first, were out of work; and that other
business agents were putting pressure on him to provide
jobs for their out of work "bookmen," and that "bookmen"
were entitled to performance in employment to those who
worked under permits from the Union. It may be noted
that up to this point Impellitteri had not mentioned to
either Bartolucci or DiMella that they lacked the necessary
qualification for referral to a job. On the contrary, the
8 The findings in this section are based on the credited testimony of
Bartolucci. As set forth in fn. 7, supra, Impellitteri gave contrary testimony,
but I do not credit it.
9 Bartolucci and DiMella testified that such visits were about once a
week . Both Impellitteri and Assistant Business Agent Quinn testified that
such visits were not that frequent . I find the conflict irrelevant.
10 The only job referral Bartolucci got in 1972, which was to a gas pipe
installation job in Bridgeport , which was almost concluded when Bartolucci
arrived . For him , the job lasted about a week.
11 The list referred to is in evidence as G.C . Exh. 4.
12 Impellitteri testified that he came into the office just as Bartolucci and
DiMella were leaving and when they left asked Quinn what the two men
wanted ; that Quinn replied that they wanted to sign the "out-of-work" list,
829
evidence shows that Impellitteri told both men that they
were good workers, and Impellitteri admits that he never
received a complaint regarding their competence.
Early in August Bartolucci and DiMella first learned
that the Union maintained a so-called "out-of-work" list
which the Union was supposed to use on a first registered,
first referred basis in assigning people to work. Being
unaware of the existence of such a list, neither Bartolucci
nor DiMella had ever signed the same.11 On or about
August 5, 1973, Bartolucci and DiMella went to the union
hall. Impellitteri being out, they spoke with assistant
business agent Quinn, and after being informed that no
work was available, they asked Quinn if they might sign
the "out-of-work" list. Quinn extracted a paper from his
desk drawer containing a list of names, and both
Bartolucci and DiMella signed it. On G.C. Exh. 4, there is
a line drawn through each name . Neither could give any
evidence as to when or by whom the line was drawn.12
Additionally the evidence shows that sometime in early
August 1973, both Bartolucci and DiMella filed with
Impellitteri their separate applications for membership in
the Local, which set forth their experience which they felt
would qualify them for membership under the rules of the
Local.13 Impellitteri examined these applications and told
Bartolucci and DiMella that their applications did not
show the required 5 years experience in the trade.
Bartolucci and DiMella argued to the contrary. Finally,
Impellitteri told the two men that he would not process
their applications along with the group to be admitted by
the International, but would submit them to a meeting of
the membership. When he did so, a great deal of confusion
developed and the applications were never acted on by the
body.
Contentions and Conclusions
It is certainly true that if, as Respondent (contends, un-
der the contract it was required to refer ,'only those men
who possessed certain qualifications, and that its real
motive or true purpose for refusing to refer Bartolucci and
DiMella to jobs was that they did not possess the necessary
qualifications, no violation of the Act could be found. On
the other hand, if the alleged lack of qualification was in
fact a pretext and the true purpose or real motive for the
refusal to refer Bartolucci and DiMella was their lack of
union membership, a clear violation of Section 8(b)(1)(A)
of the Act resulted. Amalgamated Meat Cutters and Butcher
and he permitted them to do so; that he then told Quinn that the men were
not entitled to sign the list because they did not possess the necessary
qualifications , and that he then drew the line through the two names. Quinn
corroborates this. I do not credit Impellitteri regarding his motive or
purpose in striking these names from the list.
13 At the time the Local was under a directive from the International to
admit into membership any applicant who could show 5 years' experience in
the trade . The Local apparently was not complying with this directive, and
the International then sent a representative in to obligate those applicants
into membership . This was done in late August , and seems to have left some
ill-will among the older members who seem to have felt that the 93 people
obligated at the time should not have been forced upon them by the
International.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Workmen of North America, Local No. 576, 201 NLRB
922.14 The issue , therefore, is what Impellitteri's real
motive or true purpose was when he denied referral to
Bartolucci and DiMella . Upon careful consideration of the
entire record I am convinced, and therefore find and
conclude, that his true purpose for refusing to refer the two
men to jobs, was their lack of membership in the Union,
and that their alleged lack of qualification was seized upon
in this case to obscure the true purpose of that conduct.15 I
reach this conclusion upon the totality of the following
considerations:
1. That over an approximate 4-year period Impellitteri
referred Bartolucci and DiMella to jobs notwithstanding
his knowledge of their alleged lack of qualification.
2. In the numerous conversations Impellitteri had with
Bartolucci and DiMella he never once made reference to
their alleged lack of qualification for the work.
3. Impellitteri 's statements to Bartolucci and DiMella
that he had "book men" out of work who came first, that
other business agents were "on his back" to get work for
"book men," and that as soon as he satisfied those people
who had first claim on him, he would take care of
Bartolucci and DiMella . These statements, by a responsi-
ble union official , make it clear that at least so far as
Bartolucci and DiMella were concerned , union member-
ship was since January 5, 1973, a condition precedent to
referral to a job through the Union's hiring hall. I so find
and conclude-16
Upon the foregoing findings of fact , I state the
following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
2. By refusing, in the operation of its exclusive hiring
hall arrangement, to refer Bartolucci and DiMella to jobs
14 The Board 's decision in the cited case was enforced by the Court of
Appeals for the Tenth Circuit (No. 73-1275), but the Court directed that its
opinion not be published.
15 Considerable evidence was introduced by the General Counsel to
establish the qualifications of Bartolucci and DiMella, and by Respondent
to establish that they lacked the necessary qualifications , but I find it
unnecessary to make any findings on that issue . Suffice it to say that the
evidence shows that both men were referred to a number of jobs during the
roughly 4 years they worked, and they apparently discharged their duties to
the satisfaction of the several employers involved. Impelhtten admitted that
both men were reliable workmen, and that he never received a complaint
from any employer regarding the manner in which they performed their
duties.
is The complaint alleges , and the General Counsel contended at the trial
and argues in his brief , that Respondent independently violated Sec.
8(b)(lXA) by ( I) failing and refusing to maintain adequate records of
registration and dispatching of applicants for employment referral ; and (2)
failing and refusing to form and/or maintain a joint hiring committee, as
provided for in the contract , to protect the rights of applicants or registrants
for employment referral . At the conclusion of the trial I asked the General
Counsel to provide me with authority to support his contention that factors
(1) and (2), above, constitute independent violations of Sec. 8(bXIXA). The
only authority counsel provided is a decision by Judge Goldberg, issued
July 31, 1973, in Local Union 99, International Brotherhood of Electrical
Workers, AFL-CIO (Crawford Electric Construction Co.), JD-467-73, Case
I-CB-2070, still pending before the Board on exceptions . I do not regard
that decision as authority here. Judge Goldberg did not hold and so far as I
can find the Board has never held that a union 's failure to keep proper
records of registrants and referrals under an exclusive referral system, or
the failure to cooperate in the joint hiring committee, as provided in the
because they lacked membership in the Union, which lack
of membership did not exist because of their failure to
tender periodic dues and initiation fees uniformly required
as a condition of acquiring or maintaining membership in
the Union , Respondent restrained and coerced Bartolucci
and DiMella in the exercise of rights guaranteed by Section
7 of the Act, and thereby engaged in, and is engaging in,
unfair labor practices proscribed by Section 8(b)(1)(A) of
the Act.
3. 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 Respondent engaged in, and is
engaging in, unfair labor practices proscribed by Section
8(bXl)(A) of the Act, it will be recommended that it be
required to cease and desist therefrom, and to take certain
affirmative action designed and found necessary to
effectuate the policies of the Act.
Having found that Respondent restrained and coerced
Bartolucci and DiMella in the exercise of their Section 7
rights by refusing, in the operation of its exclusive hiring
hall, to refer them to employment because of their lack of
membership in the Union, it will be recommended that
Respondent make each of them whole for any loss of pay
they suffered, respectively, by reason of Respondent's
aforesaid conduct, less their respective net earnings during
the applicable period, with interest at the rate of 6 percent
per annum, all in accordance with the Board's formula set
forth in F. W. Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716. The basis for the
computation of such backpay not being disclosed by this
record, that matter is left to the compliance stage of this
proceeding. Additionally, the violations above found,
being of a character which go to the very heart of the Act, I
contract , constituted independent violations of Sec . 8(b)(IXA). All he did
was to provide , as a remedy for the violations there found , that the Union in
that case be required to maintain certain records in connection with the
operation of its referral system. This is the course followed by the Board in
Ironworkers Local Union No. 290, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-CIO, (Mid-States Steel
Erection Company), 184 NLRB 177. On the other hand, in Amalgamated
Meat Cutters and Butcher Workmen of North America, Local No. 576
(Westfield Thrtftway Supermarket), supra, although the Board found a
violation of Sec . 8(bXlXA) based on a refusal to refer, and deemed it
necessary to write its own order, it did not order that union to keep records
of the operation of the hiring hall and make them available to the Regional
Director upon request . Perhaps the explanation is that the decision in the
last-mentioned case does not indicate that the Union's records were in fact
inadequate . Here the evidence shows that the records were plainly
inadequate. In view of Quinn's testimony that a great number of men called
at the union hall each week seeking work, the referral list in evidence is
deficient as to who registered . Moreover , the list does not show when a man
was referred.
All Sec 8(bXIXA) requires is that union refrain from coercing and
restraining employees in the exercise of their Section 7 rights. I find and
conclude that although the failure to keep proper records and the failure to
participate in the Joint Hiring Committee may in a proper case be evidence
that the hiring hall was operated in a discriminatory fashion , those facts do
not standing alone constitute the restraint and coercion which is proscribed
by Sec. 8(bXIXA) of the Act. I shall therefore recommend that par. 6(b) and
(c) of the complaint , be dismissed . However, under the circumstances I shall
include a provision requiring the Union to keep proper records of the
operations of its hiring hall, as the Board did in Ironworkers Local 290,
supra.
LOCAL UNION NO. 305 , PLUMBERS 831
shall recommend that Respondent be required to cease and
desist from in any manner restraining or coercing employ-
ees in the exercise of rights guaranteed by Section 7 of the
Act. N. L. R. B. v . Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4,
1941); California Lingerie, Inc., 129 NLRB 912, 915.
Upon the foregoing findings of fact , conclusions of law,
and the entire record in the case , and pursuant to Section
10(c) of the Act , I hereby issue the following recommend-
ed:
ORDER 17
Respondent, Local Union No. 305, United Association
of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, its
officers , agents , and representatives, shall:
1. Cease and desist from:
(a) Failing or refusing, in the operation of its exclusive
hiring hall, to refer Victor Bartolucci or Anthony DiMella
for employment for reasons that include their lack of
membership in Local Union No. 305.
(b) In any other manner restraining or coercing employ-
ees, or applicants for employment in the exercise of rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action designed and
found necessary to effectuate the policies of the Act:
(a) Make whole Victor Bartolucci and Anthony DiMella
for any loss of pay they suffered, respectively, in the
manner set forth in the section hereof entitled "The
Remedy."
(b) Preserve and, upon request, make available to the
Board or its authorized agents , for examination and
copying, all records, reports, work lists, referral documents,
and any other records and documents as may be in its
possession, custody or control, which are necessary, useful,
or appropriate in determining compliance with this Order,
or in computing the amount of backpay due under its
terms.
(c) Maintain permanent written records of its hiring and
referral operations which will be adequate to disclose fully
the basis upon which referrals are made and, upon request
of the Board or its authorized agents, make available for
inspection, at reasonable times , all records relating in any
way to the hiring and referral system.
(d) Post at its business office, hiring hall, and meeting
rooms, copies of the notice attached marked "Appen-
dix." 18 Copies of said notice, on forms provided by the
Board's Regional Director for Region 1 (Boston, Massa-
chusetts), after being duly signed by a duly authorized
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to job applicants are customar-
ily posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Sign and mail a sufficient number of copies of said
notice to the aforesaid Regional Director for posting by
employers who are bound by the collective-bargaining
agreement creating the exclusive hiring hall agreement
administered by Respondent, said employers being willing,
in places where they customarily post notices to their
employees.
IT IS FURTHER ORDERED that paragraphs 6(b) and (c) of
the complaint herein be, and they hereby are, dismissed in
their entirety.
17 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.
18 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."