Newtron Heat Trace, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jun 15, 2004

28-CB-005957 (N.L.R.B. Jun. 15, 2004)

JD(SF)–47–04
Primm, NV

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO BRANCH OFFICE
DIVISION OF JUDGES

INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 357, AFL-CIO
(Newtron Heat Trace, Inc.)

and Case 28-CB-5957

MICHAEL J. CIEKLINSKI, an Individual

INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 357, AFL-CIO
(Mandalay Bay Corporation d/b/a Mandalay Bay
Hotel and Casino)

and Case 28-CB-6013

RICHARD BRIAN HENDERSON, an Individual

Joel C. Schochet, Atty., Counsel for the
General Counsel, Las Vegas, Nevada.
Dennis A. Kist, Atty., Dennis A. Kist & Associates,
Counsel for Respondent, Las Vegas, Nevada

DECISION

I. Statement of the Case

Lana H. Parke, Administrative Law Judge. This matter was tried in Las Vegas, Nevada
on March 9 and 10, 2004 upon an Order Further Consolidating Cases, Second Consolidated
Complaint and Notice of Hearing (the Complaint) issued November 26, 20031 by the Regional
Director of Region 28 of the National Labor Relations Board (the Board) based upon charges
filed respectively by Michael J. Cieklinski and Richard Brian Henderson (Mr. Cieklinski and Mr.
Henderson), individuals. The Complaint originally named Newtron Heat Trace, Inc. (Newtron)
as a Respondent. At the hearing, Counsel for the General Counsel represented that Newtron
had entered into a settlement agreement resolving the charges against it. I granted Counsel for
the General Counsel’s motion to sever Newtron from the Complaint. The Complaint, as
amended at the hearing, alleges International Brotherhood of Electrical Workers, Local 357,
AFL-CIO (Respondent or Local 357) violated Sections 8(b)(1)(A) and (2) of the National Labor
Relations Act (the Act). Respondent essentially denied all allegations of unlawful conduct.

1 All dates herein are 2003 unless otherwise specified.

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II. Issues

1. Did Respondent maintain a practice and procedure whereby hiring hall applicants
who were members of other local unions of the International Brotherhood of
Electrical Workers, AFL-CIO (travelers), surrendered dispatch referrals to Local 357
members and obtained dispatch only after all Local 357 members had been afforded
an opportunity for dispatch to work?
2. During relevant times, did Respondent apply the above practice to charging parties,
Michael J. Cieklinski and Richard Brian Henderson, and to other travelers, including
Al Nairn and others similarly situated?
3. Did Respondent restrain and coerce travelers into surrendering dispatch referrals to
Respondent’s members by participating in, acquiescing in, or failing to take any
action against, members of Respondent who threatened bodily harm and disparaged
travelers who were being issued dispatch referrals?
4. Did Respondent threaten travelers with denial of local membership and resulting loss
of job opportunities because they refused to surrender dispatch referrals to local
members?
5. Did Respondent fail and refuse to provide copies of an alternate job referral list (side
list) to a traveler who requested them?
6. Did Respondent cause or attempt to cause Newtron to refuse to hire and/or to
discharge Mr. Henderson for reasons other than his failure to tender uniformly
required fees and periodic dues?
7. Did Respondent cause or attempt to cause Newtron to refuse to hire Mr. Cieklinski
for reasons other than his failure to tender uniformly required fees and periodic
dues?

III. Jurisdiction

Newtron, a Louisiana corporation, with a place of business located at Primm, Nevada
has been engaged as a heat trace contractor in the construction industry doing commercial and
industrial construction. During a 12-month period ending October 31, Newtron, in conducting
its business operations described above, annually purchased and received at its place of
business in Primm, Nevada, goods and services valued in excess of $50,000 directly from
points outside the State of Nevada. In its answer to the Complaint, Newtron admitted, and I
find, it has at all relevant times been an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act, and the Union is a labor organization within the meaning of
Section 2(5) of the Act.2

IV. The Facts

At all times relevant hereto, Respondent has been signatory to collective bargaining
agreements with Newtron and other contractors performing construction industry work in and
around Clark County, Nevada, which provide, inter alia, for the recognition of Respondent as the
exclusive collective-bargaining representative of the employees of Respondent in the
classifications of general foreman, journeyman wireman, journeyman technician and
journeyman cable splicer, among other classifications, with respect to rates of pay, wages,
hours of employment, processing of grievances, and other terms and conditions of employment.
Respondent has maintained with Newtron and other area contractors agreements requiring that
2 Where not otherwise noted, the findings herein are based on the pleadings, the
stipulations of counsel, and/or unchallenged credible evidence.

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Respondent be the exclusive source of referrals of employees for employment with Newtron
and other area contractors engaged in the construction industry. To that end, Respondent
maintains a construction dispatch/referral system from its hiring hall and office facility located in
Las Vegas. During 2003, pursuant to its contractual dispatch/referral system, Respondent has
dispatched electrical construction workers to Newtron at its Big Horn construction jobsite located
in Primm, Nevada.

Simply described, Respondent’s dispatch/referral system operates as follows:
The Inside Construction Agreement (Inside Agreement) provides that out-of-work International
Brotherhood of Electrical Workers Union (IBEW) members desiring employment may sign up in
one of four “books,”3 depending on their meeting applicable criteria. Those who sign in book
one are the first to be offered dispatch to available jobs. The eligibility criteria for book one is as
follows:

All applicants for employment who have four (4) or more years’ experience in the
trade, are residents4 of the geographical area, constituting the normal
construction labor market,5 have passed a journeyman’s examination given by a
duly constituted Inside Construction Local Union of the IBEW or have been
certified as a journeyman wireman by any Inside Joint Apprenticeship and
Training Committee and who have been employed in the trade for a period of at
least one (1) year in the last four (4) years in the geographical area covered by
the collective bargaining agreement.

When signatory construction companies need employees in classifications
encompassed by the agreement, they notify the hiring hall, which in turn announces or offers
the available jobs to those signed in on book one in order of position on the out-of-work list.
Membership in Respondent is not required; members of other IBEW locals throughout the
United States who are not members of Respondent, i.e. travelers, may, upon proof of good
standing, sign up for job referral in the book for which they are eligible, including book one.6
When a worker’s name is called from the book one out-of-work list, the worker may choose from
among the jobs still available for dispatch.

For many years, it has been the custom at Respondent’s hiring hall for travelers with
book one eligibility to ask that their names be put on an informal “side list” for deferred dispatch
after Respondent has afforded dispatch opportunity to all Local 357 book one signers (the side
list practice). According to union agents Jeff Westover and Terry Large, this was an accepted
“courtesy” to Local 357 members, knowledge of which was disseminated by word of mouth.
Compliance with the custom entailed no particular hardship to travelers when ample work
existed.
3 The Inside Agreement in which the criteria for book eligibility is set out, identifies the
eligibility gradations as Group I, II, III, and IV. As the witnesses referred to the eligibility
categories as “books,” I have used that term herein.
4 The definition of resident is set out in Section 3.09 of the Inside Agreement: a person who
has maintained his permanent home in the above defined geographical area for a period of not
less than one (1) year or who, having had a permanent home in this area, has temporarily left
with the intention of returning to this area as his permanent home.
5 The geographic area is specified in Section 3.08 of the Inside Agreement: Clark and
Lincoln Counties and that portion of Nye County south the Mt. Diablo Base Line, State of
Nevada.
6 At the time of the hearing travelers made up approximately 18% of book one signers.

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By stipulation of the parties, the following possessed the designated titles and
acted as agents of Respondent within the meaning of the Act during periods relevant to this
case:

David R. Jones (Mr. Jones) Business Manager
Jeff Westover (Mr. Westover) Assistant Business Manager
Terry Large (Mr. Large) Dispatcher
Lonnie Bennington Dispatcher
(Mr. Bennington)
Bill Poma (Mr. Poma) Agent

Respondent denied the agency status of Brian Egge (Mr. Egge), steward, and Edward
Gering (Mr. Gering), a Local 357 member, sometime organizer, and chairman of the Union’s
Executive Committee. During the relevant period, Mr. Egge served as Respondent’s steward
for Newtron’s IBEW employees at the Big Horn jobsite. While in that position, Mr. Egge
discussed employee complaints, safety issues, and pay issues with the jobsite supervisor, had
authority to write grievances and to resolve them, and served as liaison between Respondent
and the jobsite. Mr. Egge checked dues receipts of workers reporting to the jobsite to see if
they were current and if not, told them to pay. Mr. Gering held the position of union organizer
with Respondent from August 2001 until July 28, resuming the position in February 2004.
During 2003, Mr. Gering was the chairperson of Respondent’s unit one (inside journeyman
wiring) executive committee, which met monthly to, inter alia, review local union membership
applications and report to the executive board if applicants met the criteria.

At all relevant times, Charging Party, Mr. Henderson, was a member of IBEW Local 342
in Winston Salem, North Carolina (Mr. Henderson’s home local). He was not a member of
Respondent. In recent years, Mr. Henderson has been a resident of Las Vegas and has
received dispatches from Local 357 as a traveler.7 At all relevant times, Charging Party, Mr.
Cieklinski, was a member of IBEW Local 1426 in Grand Forks, North Dakota (Mr. Cieklinski’s
home local). Although not a member of Respondent, since 1982 Mr. Cieklinski has been a
resident of Las Vegas and has received dispatches from Local 357 as a traveler.

Prior to 2003, Mr. Henderson and Mr. Cieklinski had complied with Local 357’s custom
regarding travelers declining dispatches from book one when local members had not yet been
dispatched, by going to the dispatch window when their names were called and asking to be put
“on the side.” The dispatcher then listed their names on a piece of scratch paper to the side of
book one, which list the dispatcher referred from when all eligible local members who wanted
jobs had accepted dispatch.

Beginning in January, Mr. Cieklinski noticed a larger number than before of Local 357
members signing Book one, which he attributed to successful union organization drives swelling
Respondent’s membership numbers. With increased numbers of local membership on book
one, Mr. Cieklinski regularly had to turn down dispatches in order to comply with the local’s side
list custom.

On March 7, Mr. Cieklinski telephoned IBEW Ninth District representative, Dave Tilmont
(Mr. Tilmont) and about the side list situation at Local 357. Mr. Tilmont suggested he write to
7 Mr. Henderson unsuccessfully sought membership in Local 357; there is no allegation
related to denial of membership.

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Michael S. Mowrey (Mr. Mowrey), vice president of IBEW District 9. Prior to dispatch on that
same day, Mr. Cieklinski spoke to Mr. Westover about the problem, telling him he would have to
take a job that day without going on the side list in order to feed his family. Mr. Westover told
him he was entitled to the call if he so chose, but there were ramifications. Mr. Westover
warned, “Those members that don’t choose to step aside as a courtesy usually won’t get
membership [in Local 357].” He wished Mr. Cieklinski luck. Later that day, when dispatcher,
Mr. Large, called his name, Mr. Cieklinski accepted a job with Bechtel Construction Company.
Mr. Large asked, “Are you sure you want to do this?”8

Mr. Cieklinski said he did, and Mr. Westover told Mr. Large to give him the call. Mr.
Large asked again if Mr. Cieklinski were sure he wanted to accept the call, saying, “You’re only
going to work 41 hours.”9 Mr. Cieklinski had just moved one to two steps beyond the dispatch
window when a man identifying himself as a Local 357 member whose name was below his on
the out-of-work list accosted him, called him a f__ tramp, and said, “You are taking my job.” Mr.
Cieklinski told him he had a right to take the call. Other persons in the room yelled to him, “Do
you want to get your ass kicked?” “Turn the call back in,” and “Do the right thing.” Mr. Cieklinski
returned to the window and gave the job call back to Mr. Large and Mr. Westover. Neither
commented on his change of heart.

Following the events of March 7, Mr. Cieklinski by letter dated March 10, complained to
Mr. Mowrey about Local 357’s “book one-on the side practice,” which severely limited job
opportunities for travelers. He related the occurrences of March 7, pointing out that he had
already told Mr. Tilmont about the situation and that he had been unemployed since January 8
because of the practice. He asked for intervention:

All I am asking is that Local # 357 uphold the integrity of the union and
stop condoning the practice of men having to go “on the side.” Back in the old
days job calls were distributed fairly and everyone had the same opportunity for
job call offers. Book one was book one. Mr. Mowrey, I am asking that you
please look into this problem at your earliest convenience.

By letter dated March 17, Mr. Mowrey responded that the referral procedure was created
by the agreement between the local union and the employer:

It is important to note…that it is the Local Union and not the International that
serves as your exclusive bargaining representative…For these reasons there is
no formal procedure under which I can entertain your complaint against the Local
Union. Nevertheless, in order to attempt to assist you in an informal way, I am
assigning International Representative Tilmont to inquire further about the
matters you have raised in your letter. In the meantime, I would suggest that you
8 Mr. Large denied asking Mr. Cieklinski if he were sure he wanted to take the call. He
admitted Mr. Cieklinski’s acceptance of the call was a “highly” unusual circumstance. I did not
find Mr. Large to be a reliable witness, and I do not credit his testimony where it conflicts with
that of Mr. Cieklinski and Mr. Henderson.
9 An individual may maintain his/her position on the out-of-work list if the job lasts less than
40 hours. If more than 40 hours are worked, the individual’s name goes to the bottom of the list.
Mr. Cieklinski did not know how Mr. Large knew the Bechtel job would last only 41 hours as it
had not been announced as a short-call job (a job lasting less than 40 hours.) Mr. Cieklinski
believed Mr. Large was threatening he would make sure the job lasted only 41 hours.

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pursue whatever additional steps may be available to you, possibly a request to
be heard by the “Referral Appeals Committee.”

In response to Mr. Mowrey’s assignment, Mr. Tilmont apparently made some
effort to resolve the situation, although he could not recall “anything specific.” According
to Mr. Cieklinski, he reported to Mr. Cieklinski that he had tried to set up a meeting
between Mr. Jones, Respondent’s business manager, and Mr. Cieklinski, but Mr. Jones
refused. Although Mr. Tilmont denied Mr. Jones had refused to meet, he admitted
talking to Mr. Jones about Mr. Cieklinski’s complaint.10

By letter dated March 25, Mr. Cieklinski asked for a hearing by the Appeals Committee
regarding the integrity of the referral procedure. By letter of March 31, Mickey Miles (Mr. Miles),
Respondent’s president, informed Mr. Cieklinski he had to submit a formal complaint and
proposed remedy to the committee. By letter dated April 8, Mr. Cieklinski did so, outlining all
that had occurred on March 7 when he accepted a dispatch, including threats and intimidation
directed toward him by Local 357 members. Mr. Miles set an Appeals Committee hearing for
April 28.

On April 28, Mr. Cieklinski attended the scheduled hearing of the Appeals Committee.
Mr. Henderson and Mr. Nairn were also present. Mr. Miles, a contractor’s associate, and the
head of the Joint Apprentice Training Center formed the hearing committee.11 The committee
told Mr. Cieklinski, Mr. Henderson, and Mr. Nairn that when their names were called in the hiring
hall, they should just take the call. At some point following the hearing, the Appeals Committee
issued an undated decision, which stated the committee found no violation of the Inside
Agreement. During this period, rumors circulated in the hiring hall that travelers were accepting
jobs without going on the side, and Local 357 members raised the issue in union meetings “all
the time,” according to Mr. Gering. Local 357 members contacted Mr. Gering because they
knew he had held a position with Respondent and talked to him about travelers taking
dispatches.

During the relevant period herein, Ken Allen and Kevin Bellard (Mr. Allen and Mr.
Bellard) supervisor and general foreman, respectively, of Newtron were responsible for hiring
and firing employees at Newtron’s Big Horn Powerhouse jobsite (Big Horn job). In mid-May,
Newtron placed a request with Respondent’s hiring hall for one electrical worker. The dispatch
for that job was to be made on May 16.

Having been out of work for about eight months, in mid-May Mr. Henderson decided to
accept a dispatch even though it meant “jumping the book.” (A book jumper is a nonmember of
Local 357 who, having legitimately attained eligibility for and signed up in book one, accepts a
job referral while Local 357 signers farther down on the list remain undispatched.) Mr.
10 I credit Mr. Cieklinski’s account of what Mr. Tilmont told him. I found Mr. Cieklinski to be a
believable witness. I found Mr. Tilmont to be less open and even somewhat constrained in
giving testimony.
11 Mr. Cieklinski did not recount what he said in the hearing. Mr. Miles was vague about
what Mr. Cieklinski said, testifying that although Mr. Cieklinski referred to a March 7 incident, he
“didn’t get the feeling” that Mr. Cieklinski had said he felt threatened by a Local 357 member. It
is inherently incongruous that Mr. Cieklinski would not have repeated at least the information he
provided in his appeals request of April 8. Moreover, the committee must have read his appeal
and must have known what Mr. Cieklinski asserted he had experienced. I find Mr. Miles
testimony equivocal at best, and I do not rely on it.

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Henderson was, at that time, at the top of the book one out-of-work list. Having learned by
calling the job line that a dispatch to Newtron, a desirable job, would be offered in the hiring hall
on May 16, Mr. Henderson reported to the hiring hall on that date. When the dispatcher, Mr.
Large, called his name, Mr. Henderson went to the window and said he wanted to go to
Newtron. Mr. Large asked if that was what he wanted, and Mr. Henderson said yes. As he
waited for his referral paperwork, Mr. Henderson audiotaped conversations between him and
Local 357 members. Counsel for the General Counsel caused a transcript of the tapes to be
prepared for which Mr. Henderson later identified speakers. While the tapes were played in
court, the parties compared the audio to the transcript. Although some of the interaction on the
tapes is not audible because of loud background and covering noise, much of it, particularly
those conversations herein referenced, occurs in relative quiet.12 The taped conversations, in
pertinent part, are set forth below:

Date and Place of Conversations
Dispatch Room of the Hiring Hall
May 16

Speakers
Mr. Henderson
Vick Snow (Mr. Snow), Local 357 member
Richard Avena (Mr. Avena), Local 357 member
Allan Nairn (Mr. Nairn), Traveler
Ms. Bennington, dispatcher
Numerous unidentified voices

Conversations

Mr. Snow: Are you on the side?
Mr. Henderson: Yeah
Mr. Snow: Well, you just stepped up there…on all your brothers and took a job?
Mr. Henderson: Yeah.
Mr. Snow: That’s f___ up…How would you feel if I went to your local and did the same
thing?…Now the proper thing to do is to step back to the window and give that call back
to a brother that needs a job…You’re f___ up…Where you out of?
Mr. Henderson: 342.
…
Mr. Henderson: What page you on?
Mr. Snow: I just signed the books today.
Mr. Henderson: So? I been on the books for eight months. I been in there since ’96.
Mr. Snow: You’re on the side.
Mr. Henderson: I been in this town since ’96.
…
Mr. Snow: It’s f___ up when you jump in front the brothers and take another f---
call…And I’ll make sure that every man in that hall knows—knows that you did it too.
The proper thing to do is go back to the window and say, “Here, I’m not taking this call.”
[Pause of approximately four minutes with noise/voices]
Unidentified male: Dude, you screwed me out of a call.

12 Although objecting at the hearing to introduction of the tapes, Respondent states in its
post hearing brief, “In that Henderson produced a tape recording of comments made to him on
May 16, 2003 after taking the dispatch, what was said to him cannot be credibly debated.”

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…
Unidentified male: He took a call.
Unidentified male: You’re sh___me.
Mr. Snow: Like I said, brother, proper thing to do is go get your ticket back and give
back the call to somebody else…You won’t lose your place on the books or anything
else. That’s the proper thing to do…You don’t like [the way] this local works, then you
go back home.
[Other unidentified persons loudly questioned and jibed
at Mr. Henderson for accepting a dispatch. Mr. Snow continued
to urge Mr. Henderson to give up his dispatch as Mr. Henderson
inquired at the window when his referral would be out]
Mr. Snow: You want to save face? You know, if your name gets out on the street for
doing that sh__, it’s going to hurt you. If you walk up there right now, everything will be
forgiven…I mean if you want to continue to work here, you know.
[Voices talking at the same time]
Unidentified male: Hey, you got a home here and everything, man. If you want to live
here, you got to do the right thing.
…
Mr. Snow: I asked him to step outside. He wanted—he wanted to open it up right here
in the middle of the floor, so I did.
Unidentified male: Yeah, I want to set him on fire, you know.
Mr. Snow: I told him we’d do it in private, but, no, he wanted everybody to hear, so now
everybody’s gonna know.
[Mr. Henderson inquires again about his referral]
Mr. Henderson: They aren’t gonna give me my referral or what?…Won’t give me my
referral. That’s—I took the first—I took the first job.
Mr. Nairn: Everybody else has got their referrals already.
…
Ms. Bennington: You can always go to dispatch. I don’t have yours right now.
[As Mr. Henderson moved between the dispatch and the
referral window, an unidentified man blocked his way]
Mr. Henderson: …that was cute.
Unidentified male: No, that was cute, that stunt you pulled right then and …this thing you
jumping the books, that was cute.
…
Mr. Henderson: I been on the books for eight months…the constitution says I got as
much right to work as you.
Unidentified male: Does your ticket say 357?
Unidentified male: That must be the way they do it in his own home local. Is that the
way they do it in your local?
[Mr. Henderson leaned against the wall next to the referral
window where Ms. Bennington stood looking at him.]
Unidentified male: My constitution says soon as you get out that door I could whip your
ass.
…
Unidentified male: Well, my constitution says, as soon as you get out there, whuppin’
your ass. That’s what the constitution says.
Mr. Avera: That’s f__ up. Don’t know how it works. Don’t care how it works. That’s the
way it works in his local…When you don’t work in your own home local, then you got to
go somewhere else, that’s all. You don’t go into somebody else’s local, start jumping the
books.
Mr. Snow: 500 brothers out of work...I’m glad I met you, Brian…I’ll remember that name.

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Mr. Avera: Everybody will remember that name.
Unidentified male: Yeah, don’t speak to No. 41. You’re gonna catch hell.
…
Unidentified voice: Gonna give you a hard time.
…
Unidentified male: …you’re gonna get a lot of headaches out of it.
Unidentified male: He’ll get paid—he’ll get paid now but – get paid later.

Mr. Large noticed a “commotion was going on” concerning Mr. Henderson, but he said
he had a job to do, which he would not interrupt. Mr. Large testified it was common for people
to get into arguments about various subjects in the hiring hall but gave no details of any
arguments. Juanita Kerrick, a traveler working out of Local 357’s hiring hall since 1995, who
was called as a witness by Respondent, testified she could not recall ever seeing an argument
among workers awaiting calls in the hiring hall. Her testimony does not contradict that of Mr.
Cieklinski or Mr. Henderson, as there is no evidence she was present at the hiring hall on March
7, May 16, May 23, or September 15. Her testimony does, however, provide evidence that
arguments or “commotions” at the hiring hall were unusual, which contradicts Mr. Large’s
assertion that arguments were routine. I do not, therefore, accept his testimony in this regard.

Shortly thereafter, Mr. Egge told Mr. Bellard that a “book jumper” would be reporting to
the jobsite. Mr. Egge asked Mr. Bellard if he could “spin” the book jumper (deny the referred
worker employment when the worker reported to the jobsite). Mr. Bellard said he would have to
speak to Newtron’s general manager. Mr. Egge said if the company did not do it, there could be
problems at the jobsite. When Mr. Bellard asked what he meant, Mr. Egge said, “Well, you
know, wires being cut or people not showing up for work, or concrete being poured down pipes.
It might not be from us; there’s other union contractors out here on this job, you know. I’m not
saying it’s going to be us.” Mr. Bellard said he would speak to his boss.13

Mr. Bellard reported his conversation with Mr. Egge to Lee Byrd (Mr. Byrd), Newtron’s
general manager. Mr. Byrd told Mr. Bellard to contact the hiring hall and get their input; he
wanted to know whether Respondent would back up Newtron if they spun the worker, or would
Respondent later file a grievance for him. Mr. Bellard telephoned Mr. Westover, told him Mr.
Egge had said a book jumper was being dispatched to the job, and asked Mr. Westover what he
wanted to do about it.

Mr. Westover said the company should do the right thing, that he wasn’t happy with book
jumpers. Mr. Westover told Mr. Bellard if he did the right thing, “there could be a ticket down the
road for you.” Mr. Bellard understood this reference to a ticket to mean that he might be
permitted to switch his union membership from his home local in Louisiana to Local 357, which
Mr. Westover knew he wanted to do.14

Mr. Bellard asked if Respondent would represent workers the company spun. Mr.
Westover said he could not guarantee Respondent would not give them representation. Mr.
13 Mr. Egge denied having any such conversation with Mr. Bellard. I credit the testimony of
Mr. Bellard, whom I found to be forthright and sincere. Mr. Egge admitted the Local 357
workers on the Big Horn job did not like Mr. Henderson’s accepting the job.
14 While Mr. Bellard was unclear about when the conversations occurred, he remembered it
was about a week prior to the day Mr. Henderson reported to the jobsite in response to the
dispatch request. As Mr. Henderson was hired on May 18, the conversations must have
occurred in mid-May.

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Bellard said, “If you can’t guarantee that, then I can’t guarantee that I can go along with what
you want me to do.”15

When, pursuant to Newtron’s requested dispatch Mr. Henderson reported to the Big
Horn jobsite, Mr. Bellard hired him. Within the first week of his hire, Mr. Egge asked to speak
with Mr. Bellard. He said he did not like having Mr. Henderson on the job, that nobody else
liked having a book jumper on the payroll. Later, Mr. Bellard complained to Mr. Egge that the
work was slowing down and asked him what the problem was. Mr. Egge told Mr. Bellard that if
Newtron got rid of the “traveler,” more work would get done faster.16 On another occasion, Mr.
Bellard sought to assign overtime work on the jobsite. Mr. Egge refused to work overtime and
told Mr. Bellard he would discourage other Local 357 members on the jobsite from working
overtime if Newtron let Mr. Henderson do any overtime. Out of concern that it would impede
work on the jobsite, Mr. Bellard never assigned overtime work to Mr. Henderson.

Shortly before May 23, Newtron placed another request for an electrical worker with
Respondent. Mr. Cieklinski went to the hiring hall on May 23, intending to accept dispatch to
Newtron.17 Mr. Henderson and Mr. Nairn also returned to the hiring hall to witness Mr.
Cieklinski accept the dispatch. When his name was called for dispatch on May 23, Mr.
Cieklinski did not ask to go on the side, but asked to be dispatched to Newtron. He was
directed to report to the jobsite on May 27.

When Mr. Cieklinski stepped away from the dispatch window toward the main reception
office to get his referral, four or five persons in the room yelled and screamed at him. As he
continued walking toward the referral area in main reception office, other persons verbally
attacked Mr. Henderson and Mr. Nairn. Mr. Large and another dispatcher watched from the
dispatch window. The persons followed Mr. Cieklinski into the referral area where Mr. Poma
and Ms. Bennington stood watching.

After witnessing Mr. Cieklinski accept a dispatch that morning, while standing about six
to ten feet from the dispatch window, Mr. Henderson taped interchanges between him and Local
357 members under the same circumstances described earlier. While members and/or other
persons directed loud and confrontational comments to Mr. Henderson, Mr. Large and Mr.
Westover intermittently looked at Mr. Henderson from the dispatch window as they walked back
and forth in the dispatch office. The exchanges, in pertinent part, are set forth below:

Date and Place of Conversations
Dispatch Room of the Hiring Hall
May 23

Speakers
Mr. Henderson
Ben Grant (Mr. Grant), Local 357 member

15 Mr. Westover denied having any such conversation with Mr. Bellard. I specifically
discredit Mr. Westover’s denial and accept Mr. Bellard’s account.
16 Mr. Bellard testified that several conversations occurred between him and Mr. Egge on
this subject. He was not clear in assigning specific comments to specific conversations, and I
do not find it necessary to do so in order to find the testimony reliable.
17 Mr. Cieklinski was willing to accept a call to construction companies Newtron, Bechtal, or
Fisk because he believed those companies would not bow to Respondent pressure and spin
him.

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Jennifer Zambrano (Ms. Zambrano), Local 357 member
Richard Avena (Mr. Avena), Local 357 member
Ron Kimble (Mr. Kimble, Local 357 member
“First Stop,” Local 357 member
“Bear,” Local 357 member
Numerous unidentified voices

Conversations

Mr. Grant (to Mr. Henderson): You’re a piece of sh__.
…
Bear: That goes for me too, okay?…You’re a big pile of sh__, that’s what you are.
…
Ms. Zambrano: So it doesn’t matter, you just screw your brothers and sisters out of
jobs?…You want to see my kids over here? Ask them how long I’ve been out of work.
Hey, guys, come here. Kids. Come on, look at my kids…They’re here with me because
I’m unemployed. And ask them how long I’ve been out of work.
Mr. Henderson: How long you been out of work?
Ms. Zambrano: Ask them. Look at them. Look at these guys. These are the guys I try
to feed each and every week…
Mr. Henderson: …I live here. I got an out-of-state ticket…I got a house here. I live
here.
Bear: …Do you have a ticket that says 357 on it?
Mr. Henderson: No, it didn’t say 357.
…
[Mr. Henderson returned to the referral window. Ms. Barrington
was there, Mr. Poma was moving about in the referral office.]
First Stop: Boy, if you want to play the game out here, you better start getting used to
doing it right. Now, g__d__it, that’s b__sh__.
…
First Stop: You can go back to your home local and work.
Mr. Henderson: I live here, dude.
…
First Stop: Well, good for you. I been here since ’95, and I got in the local because I
knew that’s what you’re supposed to do…the way you’ve done it, you’re f___.
…
First Stop: Well, why in the hell did you come here in ’96? You wasn’t invited, was you?
Well then, why don’t you go home on your own?
Mr. Henderson: Because this is my home.
First Stop: No, it ain’t. We don’t want you here. There’s going to be a day that you wish
to hell you was local. Might think about putting that house up for sale while you can sell
it.
Mr. Henderson: Why is that?
First Stop: Well, this economy might just fall and you’ll be sitting on your ass with a
house. Then you can go home and bitch about how you was treated in 357. Then you’ll
be sitting out there bitching about all the tramps taking your f__ work.
[Mr. Henderson moved to within a few inches of the referral window.]
Mr. Kimble: He’s another one that tramped out of here and then came back. Should
have stayed on the f__ road.
Mr. Avena: He was a glutton for punishment. Hammers and knives and he came back
for more this week.

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Mr. Cieklinski received dispatch to report to Newtron on May 27. Before Mr. Cieklinski
reported to the jobsite, Mr. Westover telephoned Mr. Bellard and asked him to spin the book
jumper who had accepted the dispatch.18 Mr. Bellard said he could not do it. Mr. Westover said
he was disappointed in Mr. Bellard and wanted to know if he was sure about his decision. He
said, “I can guarantee you we’ll back you up on this one.” Mr. Bellard said he would talk to Mr.
Byrd and get back to Mr. Westover.

Mr. Bellard spoke to Mr. Byrd and Mr. Allen about his conversation with Mr. Westover.
Both men said they supported his decision. However, about two days later, Mr. Allen told Mr.
Bellard he had decided not to hire Mr. Cieklinski. When Mr. Cieklinski reported to the Big Horn
jobsite on the following day, Mr. Bellard apologized and told him he had to spin him, that it was
out of his hands, and he would have to return to the hall and straighten out the problem there.19
A couple of days after Mr. Bellard refused to hire Mr. Cieklinski, Mr. Egge told Mr. Bellard that
prior to Mr. Cieklinski’s reporting to the jobsite, Mr. Egge had warned Mr. Allen of potential
sabotage problems if they hired Mr. Cieklinski.20

After having been rejected for employment by Newtron, Mr. Cieklinski signed
Respondent’s out-of-work list on the following day. Thereafter, he did not sign the book again
and became ineligible for dispatch a week later, as workers must sign the list each Wednesday
to be eligible. Mr. Cieklinski was unwilling to sign the list because of what he had gone through.
Although he continued to maintain a residence in Las Vegas, he obtained work in Los Angeles,
California as a traveler.21

In June, Mr. Allen told Mr. Bellard he could not wait to get rid of the other book jumper
(Mr. Henderson). Two to three weeks later, Mr. Allen told Mr. Bellard to lay Mr. Henderson off,
to make it look legitimate--like they weren’t picking on a book jumper, and to choose another
worker to lay off also. Mr. Bellard thereafter laid off Mr. Henderson and Eric Richardson, the
last two workers hired, on July 3. Mr. Bellard falsely told the two that work was coming to an
end.22

After his layoff, Mr. Henderson again signed the out of work list. During July, August,
and the first half of September, when the union dispatcher called his name, Mr. Henderson
asked that he be put on the side. On September 15, Mr. Henderson and Mr. Nairn accepted
dispatches to DYNA Electric at the Mandalay Bay jobsite. Afterward, as Mr. Henderson stood
five to eight feet away from the referral window, various Local 357 members approached him
and, similar to the previous incidents, berated him about having accepted a call. During the
harassment Ms. Bennington, occasionally Mr. Poma, and once Mr. Large, looked on.

18 Although Mr. Bellard could not recall if Mr. Cieklinski was named in the conversation, it is
clear from the circumstances that he was the individual referred to.
19 This conversation as related by Mr. Bellard is substantially corroborated by a tape
recording made of the exchange by Mr. Cieklinski.
20 Some sabotage occurred at the jobsite but investigation failed to identify the instigator(s).
Mr. Egge admitted having dinner with Mr. Allen but denied making any such statement to Mr.
Bellard. I credit Mr. Bellard’s testimony.
21 Respondent asserts that since September 2002, Mr. Cieklinski has been ineligible to sign
book one because of change of residency. The evidence does not support such a conclusion.
22 Respondent argues Mr. Bellard was motivated to testify dishonestly because of a dues
dispute he had with Respondent. As noted above, I found Mr. Bellard to be a forthright and
sincere witness. I credit his testimony.

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After enduring several minutes of local members’ hostile reproaches, Mr. Henderson and
Mr. Nairn left the hiring hall and went into the parking area. There, in a group of about eight
people including Local 357 members, Mr. Gering denounced Mr. Henderson, in pertinent part,
as follows:

Date and Place of Conversations
Outside the Hiring Hall
September 15

Speakers
Mr. Henderson
Jennifer Zambrano (Ms. Zambrano), Local 357 member
Eddie Gering (Mr. Gering), Local 357 member, and chairman
Executive Committee
Numerous unidentified voices

Conversations

Mr. Gering: …This is my f__local right here. Why the f__ don’t you go back to North
Carol-f__[ina]?
Mr. Henderson: You better leave me alone.
Mr. Gering: Yeah? And what’s going to happen, man? What’s going to happen if I f__
sit right here and call you a piece of sh__” What are you going to do about that, huh?
The piece of f__ sh__ that you are, m__-f__, what are you going to do about that? You
going to sit here and let a little m__-f__ like me call you a f__ low-life f__ piece of sh__?
What the f__ they teach you in North Carolina, m__-f__? Huh? What the f__ they teach
you there, man? To f__ f__ your brothers?…Coming to this local, f__ taking this work.
Huh? We got local people on the books waiting for them f__ jobs, man.
…
Unidentified Male: You can do the right f__ thing and turn that f__ call back in. Do the
right f__ thing.
Mr. Gering: Dude, you ain’t in North Carolina, man. You’re in 357. This sh—‘s not
acceptable. It may be f__ legal, but it ain’t acceptable, dude.
…
Mr. Gering (pointing his finger at Mr. Henderson): Well, he’s the scumbag that started
this sh__…That’s why I’m f__ focusing on you, because you’re the scumbag that started
this f__ sh__. So what are you gonna do, man, huh? What, you gonna beat me up? Is
that what you’re gonna do?
Mr. Henderson: You’re the one doing all the talking, aren’t you?
…
Mr. Gering:…Don’t tell me about it. I know the f__ law. I know the rules, man. There’s
f__ laws and then there’s rules. Rules is: You come here as a guest, you don’t f__ come
here and take our f__ work. We got people on the book…You wait your f__ turn, if it
gets to you, and then you take it. You don’t f__ jump the book…You’re a f__ rate; you’re
a f__ worm; you”re a f__ scab.
…
Mr. Gering: You can f__ get in your cars and drive off, but I’ll guarantee you it ain’t over,
man. I’m gong to make it my f__ quest.23

23 According to Mr. Gering, by that comment, he meant he would continue to let Mr.
Henderson and others know what Mr. Henderson was doing wrong.

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Unidentified Male: There’s water waiting for you at Mandalay…we’ll get the word out.
Ms. Zambrano (who had been talking on her cell phone, telling someone Mr. Henderson
was going to take the call to the Mandalay Bay job): Don’t worry, brother. You’re taken
care of. Just like you took care of us.

I do not find it necessary to describe further this verbal attack on Mr. Henderson.
Suffice it to say that with virtually no response from Mr. Henderson, Mr. Gering, with group
support, continued his repetitiously obscene harangue. Mr. Gering admitted to an “unpleasant
confrontation” with Mr. Henderson about his accepting dispatch although Mr. Gering knew it was
illegal to impose a rule that travelers go on the side. He was angry with Mr. Henderson because
he chose “not to abide by traditions and standards of conduct that we impose upon ourselves.”

Michael David Naddeo (Mr. Naddeo) a Traveler from Local 640 out of Phoenix, Arizona,
was outside the union hall during the above-described confrontation in the parking lot. He saw
Mr. Large nearby talking to someone in a truck. Mr. Naddeo approached Mr. Large and spoke
to him briefly about a grievance. Then Mr. Naddeo looked toward Mr. Henderson and the group
and said, “Terry, looks like you’re going to have another lawsuit on your hands.”

Mr. Large said, “All I see is some brothers having a disagreement; what goes on in the
parking lot is none of my business.” Mr. Large’s denial of this conversation was vague. When
asked if he remembered someone pointing out the September parking lot argument to him, he
answered, “Not to any detail.” He then testified he talked to two to three hundred people every
morning and ever couldn’t remember “Mike coming up and saying anything to me at any given
time.” As with Mr. Large’s other denials, I do not find this one credible.

After observing the group’s verbal attack on Mr. Henderson in the parking lot, Mr. Nairn
returned to the hiring hall and turned in his job referral to Mr. Large. There is no evidence Mr.
Large inquired what had prompted Mr. Nairn’s change of mind.24

On October 3, Mr. Henderson requested a copy of the side list from Mr. Large. Mr.
Large asked if Mr. Henderson had a tape recorder on him. Mr. Large refused to give Mr.
Henderson a copy of the side list, saying he didn’t have one, that he had thrown it away.

Mr. Henderson did not complain of any of the local members’ conduct and harassment
to any of Respondent’s business agents or officials because he felt there was no point in
complaining to people who “sicked [the local members] on us.”

V. Discussion

A. Agency Status of Mr. Egge and Mr. Gering

Section 2(13) of the Act provides:

In determining whether any person is acting as an "agent" of another person so
as to make such other person responsible for his acts, the question of whether
the specific acts performed were actually authorized or subsequently ratified shall
not be controlling.
24 After September 15, Mr. Nairn did not accept any dispatch until November 17 when he
was referred to a Bechtel jobsite without incident. Working at that jobsite requires a daily four-
hour round-trip bus ride, which supports an inference that it was not a sought-after job.

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It is well established that, under Section 2(13) of the Act, employers and unions are
responsible for the acts of their agents in accordance with ordinary common-law rules of
agency. Strack and Van Til Supermarkets, 240 NLRB No. 172, at slip op. 9-10 (2004), citing
Longshoremen Local 1814 ILA v. NLRB, 735 F.2d 1384, 1394 (D.C. Cir. 1984). The Board has
also noted, "When applied to labor relations… agency principles must be broadly construed in
light of the legislative policies embedded in the Act." Longshoremen ILA (Coastal Stevedoring
Co.), 313 NLRB 412, 415 (1933), remanded 56 F.3d 205 (D.C. Cir. 1995), stating further at 417,
“Courts have concluded that under the NLRA, agency principles must be expansively construed,
including when questions of union responsibility are presented [citations omitted].” The Board
adopts the concept of apparent authority and, when determining whether it has been created,
notes (1) there must be some manifestation by the principal to a third party, and (2) the third
party must believe that the extent of the authority granted to the agent encompasses the
contemplated activity. Pratt Towers, Inc., 338 NLRB No. 8, slip op. at 12 (2002).

Mr. Egge was Respondent’s union steward on the Big Horn jobsite at the time he asked
Mr. Bellard to spin Mr. Henderson and threatened retaliation if he did not. As union steward,
Mr. Egge discussed employee complaints, and safety and pay issues with the jobsite
supervisor, had authority to write grievances and to resolve them, and served as liaison
between Respondent and the jobsite. I find Mr. Egge had apparent authority to act on behalf of
Respondent during his conversations with Mr. Bellard, even if he lacked actual authority. Later,
Mr. Westover, an admitted agent of Respondent, reinforced Mr. Egge’s apparent authority;
when Mr. Bellard asked Mr. Westover what he wanted to do about the prospective book jumper,
Mr. Westover implicitly espoused Mr. Egge’s appeals and threats by encouraging Mr. Bellard to
do the “right thing” and by promising him personal benefit if he did so. Accordingly, I find
Respondent gave Newtron a reasonable basis for believing that Mr. Egge had the apparent
authority to make the requests and threats herein. Local 9431, Communications Workers Of
America, AFL-CIO (Pacific Bell), 304 NLRB 446, 447 (1991).

At the time Mr. Gering verbally assaulted Mr. Henderson on September 15, he was in a
brief hiatus from his position as union organizer but was still the chairperson of the
Respondent’s executive committee. Local 357 members contacted him with their concerns
about travelers accepting referrals instead of going on the side because, in Mr. Gering’s view,
they knew he had held a position with Respondent. There is no evidence Mr. Gering disavowed
authority or ability to deal with the concerns of members who called him. Moreover, Mr. Gering
conducted his verbal assault in view of Mr. Large, a circumstance that must have demonstrated
to all who viewed it that Respondent had cloaked him with authority to engage in the conduct.
Ibid. I find Mr. Gering was Respondent’s agent when he harangued Mr. Henderson on
September 15.

B. Respondent’s 8(b)(1)(A) and 8(b)(2) Conduct

Union-operated exclusive hiring halls are permissible employment systems when
lawfully memorialized in collective-bargaining agreements. Local 357, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. National Labor Relations
Board, 365 U.S. 667 (1961). In operating hiring halls, unions must follow clear and
unambiguous standards set out in a collective-bargaining agreement. Further,

A union which operates a hiring hall must represent all individuals seeking to
utilize that hall in a fair and impartial manner. In this regard, the Board has held
that notwithstanding the absence of specific discriminatory intent, "any departure
from established exclusive hiring hall procedures which results in a denial of

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employment to an applicant ... inherently encourages union membership,
breaches the duty of fair representation owed to all hiring hall users, and violates
Section 8(b)(1)(A) and (b)(2)," absent demonstration of a legitimate justification.
Cell-Crete Corporation, 288 NLRB 262, 264 (1988).

A union operating an exclusive hiring hall may not discriminate with respect to
registration and referrals on the basis of membership or non-membership in the union.
International Brotherhood of Electrical Local Union No. 3 Workers, AFL-CIO (White Plains),
331 NLRB 1498 (2000). As stated by the Board:

The operation of a union hiring hall imposes considerable responsibilities on the
union agents in charge of the hall. Thus, they must neither foster nor
countenance discrimination with regard to access to, or referral from, the hall on
the basis of International union membership, local union membership, or any
other arbitrary, invidious, or irrelevant considerations [citations omitted]. Sachs
Electric Company, 248 NLRB 669, 670 (1980).

Section 8(b)(2) of the Act provides that it is an unfair labor practice for labor
organizations "to cause or attempt to cause an employer to discriminate against an
employee in violation of subsection (a)(3)" of the Act, i.e. "in regard to hire or tenure of
employment or any term or conditions of employment to encourage or discourage
membership in any labor organization."

The General Counsel contends that since March 1, Respondent has
independently violated Section 8(b)(1)(A) of the Act by the following conduct:
1. Since March 1, maintaining at its hiring hall the side list practice and procedure
whereby travelers surrendered employment referral opportunities to permit
dispatch of Local 357 members and applying said side list practice to Mr.
Cieklinski, Mr. Henderson, Mr. Nairn, and other travelers.
2. On March 7, threatening travelers with denial of membership in Local 357 and
consequent loss of job opportunities because they refused to surrender job
referrals to local members.
3. On March 7, May 16, May 23, and September 15, restraining and coercing
travelers into surrendering job referrals to members of Local 357 by participating
in, acquiescing in, or failing to take any action against members of Local 357 who
threatened bodily harm and disparaged travelers who accepted job referrals.
4. On October 3, failing and refusing to provide travelers with requested copies of
the side list.

The General Counsel also contends that since March 1, Respondent has
violated Section 8(b)(2) and (8(b)(1)(A) of the Act by the following conduct:
1. On May 18, requesting Newtron to refuse to hire Mr. Henderson and In late
May, requesting Newtron to discharge Mr. Henderson, thereby causing or
attempting to cause Newtron to refuse to hire and to discharge Mr.
Henderson.
2. On May 23, requesting Newtron to refuse to hire Mr. Cieklinski, thereby
causing or attempting to cause Newtron to refuse to hire Mr. Cieklinski.

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The evidence is persuasive, indeed compelling, that Respondent was at all relevant
times aware that its longstanding hiring hall side list practice was maintained and perpetuated
through pressure exerted overtly by Local 357 members and covertly by Respondent. Members
and Respondent’s agents alike referred pejoratively to travelers who did not abide by the side
list practice as “book jumpers.” Not only was Respondent aware of its members’ hostility to
book jumpers, Respondent’s agents supported and even fostered the side list practice. On
March 7, when Mr. Cieklinski told Mr. Westover he would have to eschew the side list practice
that day and take a job, Mr. Westover failed to affirm his legal and contractual right to do so.
Rather Mr. Westover warned him of disadvantageous ramifications, including inability to obtain
Local 357 membership. Even Mr. Westover’s wishing Mr. Cieklinski luck in jumping the book
was, in the circumstances, a none-too-subtle message that Respondent would not support his
action. When, shortly thereafter, Mr. Cieklinski accepted the job referral to which he was
entitled, the dispatcher, Mr. Large, expressed his surprise and asked if Mr. Cieklinski were sure
he wanted to do it. I cannot accept Respondent’s assertion that Mr. Large’s comment simply
denoted surprise that Mr. Cieklinski was changing his usual custom of side listing his name.
Rather, I conclude Mr. Large’s reaction was yet another unsubtle message of nonsupport,
immediately reinforced by Mr. Large’s unfounded threat that the job would only last 41 hours.

Immediately after Mr. Cieklinski accepted the job referral and while within close proximity
to the office window from which Mr. Large and Mr. Westover could oversee the hall, Local 357
members subjected Mr. Cieklinski to name-calling and threats of physical retaliation if he did not
revoke his referral. Credible testimony established that such confrontations were atypical, and it
is reasonable to infer that Respondent’s officials would have at least inquired into the cause of
the angry disruption unless they approved it. There is no other reasonable explanation of their
non-intervention and their complacent acceptance of Mr. Cieklinski’s subsequent job referral
revocation. Indeed, Mr. Westover and Mr. Large implicitly evinced their approbation of the
harassment and tacitly encouraged it by accepting without question or comment Mr. Cieklinski’s
return of the referral for Local 357 membership benefit. Mr. Cieklinski and later Mr.
Henderson’s failure to complain to the Local 357 representatives about what had occurred does
not change this conclusion. Under all the circumstances, including the inaction of the Referral
Appeals Committee, it was demonstrably futile for any of the travelers to complain. See
International Association of Bridge, Structural, and Ornamental Iron Workers, Local 433, AFL-
CIO (Steel Fabricators Assn.), 341 NLRB No. 68, at slip op. 4 (2004).

Respondent contends that no union representative heard threats to or harassment of Mr.
Cieklinski or Mr. Henderson, implicitly claiming not only uninvolvement in but also ignorance of
any coercion. Respondent’s claims are so disingenuous as to approach mendacity. Mr. Tilmont
had discussed Mr. Cieklinski’s complaints with Respondent’s business manager, Mr. Jones. Mr.
Cieklinski had complained to IBEW District officers about the situation and had taken his
complaint to a hearing before the Referral Appeals Committee, over which Respondent’s
president presided. Local 357 members regularly raised the issue of travelers refusing to go on
the side in union meetings, and there is no evidence that Respondent’s officials explained the
travelers’ legal right to do so or attempted in any way to restrain union members’
disapprobation. Moreover, Respondent directly solicited Newtron to refuse to hire Mr.
Henderson and Mr. Cieklinski because they had flouted the side list procedure. As to
Respondent’s contention that it was oblivious of the hiring hall harassment of Mr. Cieklinski and
Mr. Henderson, the argument lacks credibility. While union representatives present in the hall
during the harassment probably did not hear all the exchanges, tape-recording clarity,
supporting testimony, and other circumstances set forth herein make it reasonably certain they
heard enough to know what was going on, but did nothing to stop it.

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When Mr. Henderson legally accepted a dispatch on May 16, Respondent again turned
a blind eye to the resulting and outrageously abusive uproar among its members and other job
applicants who openly verbally attacked and threatened Mr. Henderson. While Mr. Large could
not deny the incident occurred, he minimized it by calling it a “commotion” he could not be
bothered to deal with. When Local 357 members other job applicants directed similar and
volubly open vilification at Mr. Cieklinski and Mr. Henderson on May 23, Respondent’s agents
again remained deliberately oblivious to what they could not possibly have failed to observe.

On September 15, Local 357 membership again directed threats and hostility toward Mr.
Henderson and Mr. Nairn for accepting dispatches in the most bullying and intimidating display
of animosity yet. This time Respondent’s agent, Mr. Gering spearheaded the attacks. Even
assuming Respondent should not be held directly accountable for the threats and intimidation,
credible evidence establishes that Mr. Large was fully aware of Mr. Gering’s conduct on that
occasion and deliberately ignored it, saying, “All I see is some brothers having a disagreement;
what goes on in the parking lot is none of my business.” Apparently, Respondent viewed what
had gone on in the hall itself on that and previous occasions as equally beyond its responsibility.
When, on September 15, after enduring threats and hostility, Mr. Nairn surrendered his job
referral, no dispatching official asked why he had done so, investigated the circumstances, or
took any action whatsoever to restrain the hostile tactics of the hiring hall denizens.

Respondent contends that it cannot be held liable for coercive conduct unless committed
by the labor organization or its agents. I cannot agree. Even aside from the September 15
conduct of Mr. Gering, Respondent’s agent, Respondent must bear responsibility for conduct
acquiesced in and condoned by its representatives, which takes no steps to disavow. See
Laborers’ International Union of North America, Local 616, AFL-CIO, Bruce and Merrilees
Electric Company), 302 NLRB 841 (1991); Dover Corp., 211 NLRB 955, 957 (1974).
Respondent’s ongoing and frequently demonstrated indifference and inaction toward the hiring
hall applicants’ harassment of disobliging travelers are not only inconsistent with its duty to
represent all hiring hall applicants fairly and impartially, they are convincing evidence of its
acquiescence in and approval of the conduct. Moreover, the evidence does not support any
argument that Respondent’s actions or inactions in this matter resulted from mere negligence or
inadvertent mistake so as to preclude liability.25 Rather Respondent’s conduct fits within those
descriptive terms the Board uses to describe breaches of a union’s duty to exercise authority
over referrals in a nonarbitrary and nondiscriminatory fashion:

"[A]rbitrary," "invidious," "discriminatory," "hostile," "unreasonable," "capricious,"
"irrelevant or unfair considerations," without "honesty of purpose" [all of which]
indicate deliberate conduct that is intended to harm or disadvantage hiring hall
applicants. They all imply that the union is either using its power to control
referrals against the interests of individual applicants or classes of applicants, or
that it may do so at any time, at its discretion. Steamfitters Local Union No. 342
(Contra Costa Electric, Inc.), 336 NLRB 549, 551, quoting Breininger v. Sheet
Metal Workers Local 6, 493 U.S. 67, 89 (1989).

Respondent also contends it is not responsible for the conduct of non-
representatives because it published an anti-harassment policy and because Mssrs.
Cieklinski, Henderson, and Nairn did not follow the relief provisions in that policy.
25 See Plumbers Local 342 (Contra Costa Electric), 329 NLRB 688 (1999).

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Respondent further argues that the three men did not exhaust available internal union
remedies. While it is true that the three travelers did not follow the specific procedures
envisioned by the anti-harassment policy or file internal union charges against IBEW
members who harassed them, the evidence is clear that such would have been acts of
futility. Respondent was well aware of the harassment. Respondent had already
ignored an opportunity to address the problem when Mr. Cieklinski sought and obtained
a hearing before the Appeals Committee regarding the integrity of the referral procedure.
Following that hearing, Respondent not only took no action, but by its subsequent
decision denied there was any problem, asserting the committee had found no violation
of the Inside Construction Agreement. After the committee’s decision and after
Respondent’s open and deliberate disregard of the harassment, the protesting travelers
were justified in believing it was useless to seek Respondent’s help.

By its conscious and willful refusal to acknowledge or investigate its membership and
other’s conduct or to take steps to control it, Respondent restrained and coerced travelers into
surrendering job referrals to members of Local 357 and participated in, acquiesced in, and failed
to take any action against members of Local 357 or others who threatened bodily harm and
disparaged travelers who accepted job referrals, in violation of Section 8(b)(1)(A) of the Act.
While specific evidence of travelers being deterred from accepting job referrals by Respondent’s
unlawful conduct was presented only as to Mr. Cieklinski, Mr. Henderson, and Mr. Nairn, it is
reasonable to conclude other travelers were similarly deterred.

Credible evidence also establishes that Respondent’s agents actively sought to prevent
Newtron’s employment of both Mr. Henderson and Mr. Cieklinski. On about May 16, through
Mr. Egge and Mr. Westover, Respondent unsuccessfully attempted to cause Newtron to refuse
to hire—that is, discriminate against—Mr. Henderson by asking Mr. Bellard to spin Mr.
Henderson and threatening consequences if he did not. Respondent’s lack of success makes
its efforts no less a violation of Section 8(b)(2). On May 23, through the same two agents,
Respondent successfully caused Newtron to refuse to hire, or to spin, Mr. Cieklinski. In both
situations, Respondent was motivated by its animosity toward the two travelers having lawfully
accepted dispatch before all Local 357 members on book one had been dispatched.
Respondent’s conduct in both instances violated Section 8(b)(2) of the Act.

The General Counsel argues that Respondent caused Newtron to lay off Mr. Henderson.
While there is no direct evidence that any agent of Respondent requested Mr. Henderson’s
layoff, the evidence does establish that Respondent made it abundantly clear it did not want Mr.
Henderson on the job. Mr. Egge threatened that jobsite sabotage might follow Mr. Henderson’s
employment, and when Mr. Bellard later complained of work slowdown, Mr. Egge said if
Newtron got rid of Mr. Henderson, more work would get done faster. Mr. Egge also told Mr.
Bellard that employees would refuse to work overtime if Respondent assigned it to Mr.
Henderson. In these circumstances, Mr. Allen’s direction to Mr. Bellard to lay off Mr. Henderson
and to lay off another employee to make it look legitimate was as instigated by Respondent as if
Respondent had directly demanded the action. Accordingly, I find Respondent attempted to
cause and did cause Newtron to lay off Mr. Henderson in violation of Sections 8(b)(1)(A) and (2)
of the Act.

The complaint further alleges that Respondent refused to provide Mr. Cieklinski with a
copy of the side list when he requested it on October 3 in violation of Section 8(b)(1)(A) of the
Act. Board law is clear that hiring hall records must be shown to hiring hall users upon request.
Bartenders & Beverage Dispensers Local 165 (Nevada Resort Assn.), 261 NLRB 420 (1982).

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Although not as formally constituted or maintained as dispatch and referral records, it is clear
Respondent kept a daily side list on which to document the names of travelers or other
individuals who wished to defer dispatch. Such a list is a hiring hall record, which Respondent
is obligated to furnish hiring hall users upon request. While Mr. Large denied any list existed
that he could produce for Mr. Cieklinski, I have not found him to be reliable, and I do not accept
his assertion to Mr. Cieklinski that no side list existed on October 3. Accordingly, I find that in
not disclosing its side list to Mr. Cieklinski on October 3, the Union violated Section 8(b)(1)(A) of
the Act as alleged in the complaint.

Conclusions of Law

1. Newtron Heat Trace, Inc. is and has been at all times material an employer engaged within
the meaning of Section 2(2), (6), and (7) of the Act.

2. Respondent is and has been at all relevant times, a labor organization within the meaning of
Section 2(5) of the Act.

3. Respondent violated Section 8(b)(1)(A) of the Act by

a. Maintaining at its hiring hall a side list practice and procedure whereby
travelers surrendered employment referral opportunities to permit
dispatch of Local 357 members, and applying said side list practice to Mr.
Cieklinski, Mr. Henderson, Mr. Nairn, and other travelers.
b. Threatening travelers with denial of membership in Local 357 and loss of
job opportunities because they refused to surrender job referrals to local
members.
c. Restraining and coercing travelers into surrendering job referrals to
members of Local 357 by participating in, acquiescing in, or failing to take
any action against members of Local 357 or other individuals who
threatened bodily harm and disparaged travelers who accepted job
referrals.
d. Failing and refusing to provide Mr. Cieklinski with requested copies of the
side list.

4. Respondent violated Section 8(b)(2)) and 8(b)(1)(A) of the Act by

a. Requesting Newtron to refuse to hire Mr. Henderson and attempting to cause
and causing Newtron to lay off Mr. Henderson, in violation of Section 8(a)(3)
of the Act.
b. Requesting Newtron to refuse to hire Mr. Cieklinski, thereby attempting to
cause and causing Newtron to refuse to hire Mr. Cieklinski in violation of
Section 8(a)(3) of the Act.

REMEDY

Having found Respondent has engaged in certain unfair labor practices, I shall
recommend it be ordered to cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act including the posting of a remedial notice.

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I shall also direct Respondent to make Michael J. Cieklinski, Richard Brian Henderson,
Al Nairn, and other travelers affected by Respondent’s unlawful conduct whole, with interest,
for any loss of job opportunity caused by Respondent’s violations of Section 8(b)(1)(A) and
Section 8(b)(2) of the Act as found herein.26 Such make whole remedy shall include payment
to Mr. Cieklinski, Mr. Henderson, Mr. Nairn, and other affected travelers and to the contractual
fringe trusts for all loss of wages and benefits and contractual fringe benefits, plus appropriate
late trust payment penalties as provided by the collective bargaining agreement, which would
have been paid for the employment lost as a result of Respondent's unfair labor practices.
Backpay shall be calculated in the manner set forth in F. W. Woolworth Co., 90 NLRB
289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173
(1987). Contractual payments shall be made consistent with Merryweather Optical Co., 224
NLRB 1213 (1976).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended27

ORDER

The Respondent, International Brotherhood of Electrical Workers, Local 357, AFL-CIO,
its officers, agents, and representatives, shall

1. Cease and desist from

a. Maintaining at its hiring hall a side list practice and procedure whereby
travelers surrender employment referral opportunities to permit dispatch
of Local 357 members and applying said side list practice to Mr.
Cieklinski, Mr. Henderson, Mr. Nairn, and other travelers.
b. Threatening travelers with denial of membership in Local 357 and loss of
job opportunities because they refuse to surrender job referrals to local
members.
c. Restraining and coercing travelers into surrendering job referrals to
members of Local 357 by participating in, acquiescing in, or failing to take
any action against members of Local 357 who threaten bodily harm and
disparage travelers who accept job referrals.
d. Failing and refusing to provide access to and a right to inspect and copy
hiring hall books and records, including any side lists, which are
necessary to determine the requesting individual's position or priority of
dispatch within the referral system and to further determine whether the
26 Respondent objects to so broad a remedy, contending the evidence does not support a
conclusion that travelers are coerced to go on the side list. As explained earlier, the evidence
shows pervasive, albeit usually tacit, coercion condoned and acquiesced in by Respondent.
Therefore, the remedy is appropriate. Determining the identities and job opportunity losses of
and giving notification to such travelers as may have been coerced is left to the compliance
stage of this matter.
27 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.

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referral process is being operated properly.
e. Requesting Newtron Heat Trace, Inc. or any other employer to refuse to
hire travelers or any other hiring hall applicant in violation of 8(a)(3) of the
Act.
f. Causing or attempting to cause Newtron Heat Trace, Inc. or any other
employer, to refuse to hire or to lay off or otherwise terminate travelers or
any other hiring hall applicant in violation of 8(a)(3) of the Act.
g. 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 affirmative action necessary to effectuate the policies of the Act.

a. Maintain and enforce its established hiring hall practices and procedures
in a manner that neither requires nor encourages travelers to surrender
employment referral opportunities to permit dispatch of Local 357
members.
b. Make Michael J. Cieklinski, Richard Brian Henderson, Al Nairn, and other
affected travelers whole, plus interest, for any loss of earnings and other
benefits suffered by them as a result of Respondent's unlawful conduct, in
the manner set forth in the remedy section of the decision.
c. Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a
reasonable place designated by the Board or its agents, all records in the
possession of Respondent including an electronic copy of such records if
stored in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
d. Within 14 days after service by the Region, post at its hiring hall in Las
Vegas, Nevada copies of the attached notice marked “Appendix.”28
Copies of the notice, on forms provided by the Regional Director for
Region 28, after being signed by Respondent’s authorized
representative, shall be posted by Respondent and maintained for 60
consecutive days in conspicuous places including all places where
notices to members are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the pendency
of these proceedings, Respondent has gone out of business or closed the
facility involved in these proceedings, Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current employees
and former employees employed by Respondent at any time since March
7, 2003.
e. Sign and return to the Regional Director sufficient copies of the notice for
posting by Newtron Heat Trace, Inc. and other appropriate employers, if
28 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 National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

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willing, at all places where notices to employees are customarily posted.
f. Within 21 days after service by the Region, file with the Regional Director
a sworn certification of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has taken to comply.

Dated, at San Francisco, CA: June 15, 2004

_____________________
Lana H. Parke
Administrative Law Judge

JD(SF)–47–04
Primm, NV

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 Federal labor law and has
ordered us to post and obey this Notice.

FEDERAL LAW PROVIDES

Any labor organization that operates a hiring hall or referral process that
is an exclusive source of employment referrals to employers must fairly
and consistently follow the hiring hall's rules and regulations regarding
hiring hall dispatches and must represent all individuals seeking to utilize
that hall in a fair and impartial manner.

WE WILL NOT maintain at our hiring hall a side list practice and procedure whereby
individuals who are not members of Local 357 (travelers) surrender employment referral
opportunities to permit dispatch of Local 357 members.
WE WILL NOT threaten travelers with denial of membership in Local 357 and loss of job
opportunities because they refuse to surrender job referrals to Local 357 members.
WE WILL NOT restrain and coerce travelers into giving up job referrals to members of
Local 357 by participating in, acquiescing in, or failing to take any action against
members of Local 357 and others who threaten and harass travelers who accept job
referrals.
WE WILL NOT in any like or related manner fail and refuse to dispatch hiring hall applicants to
jobs to which they are entitled under the lawful hiring hall rules and regulations.
WE WILL NOT upon request by a represented employee or job applicant, fail and refuse
to provide access to and a right to inspect our books and records, including any side
lists, which are necessary to determine the requesting individual's position or priority of
dispatch within the referral system and to further determine whether the referral process
is being operated properly.
WE WILL NOT request any employer to refuse to hire travelers or any other job
applicant in violation of 8(a)(3) of the Act.
WE WILL NOT cause or attempt to cause any employer to refuse to hire or to layoff or
otherwise terminate travelers or any other job applicant in violation of 8(a)(3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce employees in the
exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act.

WE WILL maintain and enforce our hiring hall practices and procedures in a manner that
neither requires nor encourages travelers or other job applicants to give up employment referral
opportunities to permit dispatch of Local 357 members.
WE WILL make Michael J. Cieklinski, Richard Brian Henderson, Al Nairn, and other
affected travelers whole, plus interest, for any loss of earnings and other benefits
suffered by them as a result of our unlawful actions.

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International Brotherhood of Electrical Workers,
Local 357, AFL-CIO
(Labor Organization)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
2600 North Central Avenue, Suite 1800, Phoenix, AZ 85004-3099
(602) 640-2160, Hours: 8:15 a.m. to 4:45 p.m.
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 COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (602) 640-2146.