Operating Engineers, Local 406

National Labor Relations Board - Board Decisions

Mar 24, 1971

189 N.L.R.B. 255 (N.L.R.B. 1971)

OPERATING ENGINEERS, LOCAL 406 255 International Union of Operating Engineers, Local 406, AFL-CIO (New Orleans Chapter , Associated General Contractors of America , Inc.) and Freddy J. Dufour and John L. Mathews. Cases 15-CB-1009 and 15-CB-1009-1 March 24, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND KENNEDY On November 25, 1970, Trial Examiner Paul Bisgyer issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended the dismissal of such allegations. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. 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 Trial Examiner, and hereby orders that Respondent, International Union of Operating Engineers, Local 406, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL BISGYER , Trial Examiner : This proceeding , with all the parties represented . was heard on July 28 and 29, 1970, at New Orleans , Louisiana, on the amended complaint of the General Counsel issued on June 15, 1970,1 which was further amended at the hearing , and the amended answer of International Union of Operating Engineers , Local 406, AFL-CIO, herein called the Respondent or Union . In issue are questions ( 1) whether the Respondent , in violation of Sections 8 (b) (1) (A) and 8 (b)(2) of the National Labor Relations Act, as amended, 2 refused to refer Freddy J. Dufour and John L. Mathews from its contractually operated exclusive hiring hall to specified jobs on equal terms with the other job applicants ; and (2) whether it otherwise independently restrained and coerced employees in violation of Section 8(b) (1) (A) of the Act. At the close of the hearing, the parties waived oral argument but thereafter submitted briefs in support of their position. Upon the entire record,3 and from my observation of the demeanor of the witnesses, and with due consideration being given to the arguments advanced by the parties, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE COMPANIES INVOLVED The companies involved in this case,4 many of whom are members of New Orleans Chapter, Associated General Contractors of Arierica, Inc., herein called AGC, are engaged in Louisiana either as contractors in the construc- tion industry or in the business of manufacturing products. In the course and conduct of its operations during the past 12 months, which is a representative period for the times material herein, each of these companies received goods i The amended complaint is based on separate charges filed in Cases 15-CB-1009 and 15-CB-1009-2 on July 22 and August 26, 1969, respectively A copy of the first charge was served on the Respondent by registered mail on July 23, 1969, and a copy of the second one was similarly served on August 26, 1969 2 Insofar as pertinent , Sec 8(b)(1)(A) of the Act makes it an unfair labor practice for a labor organization or its agents " to restrain or coerce employees in the exercise of the nghts guaranteed in section 7 Section 7 , inter a/ta, provides that "Ielmployees shall have the right to self- organization , to form , join , or assist labor organizations, to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , and to refrain from any or all of such activities Sec 8(b)(2) of the Act prohibits a labor organization and its agents "to cause or attempt to cause an employer to discriminate against an employee in violation of subsection 8(a)(3) " The latter provision , with certain qualifications not material herein , prohibits an employer, "by discrimina- tion in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membersing in any labor organization 3 The Respondent submitted along with its brief to the Trail Examiner four work orders showing Dufour's referral to the indicated jobs and requested that these documents be made part of the record Copies of these work orders were furnished to the General Counsel who filed no objection to their receipt in evidence It appears that these jobs were mentioned at the hearing and three of them were discussed in the General Counsel's brief to the Trial Examiner All things considered , I shall receive these documents in evidence and, for convenience sake, assign them G C Exhs 21(z), (aa), (cc) and (dd), respectively These documents will be kept together with the General Counsel's other exhibits in the number 21 category 4 Their names are listed in appendix A of the amended complaint 189 NLRB No. 40 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and materials valued in excess of $50,000 from points out- side the State. The parties stipulated, and I find, that each of the above- indicated companies is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. if. THE LABOR ORGANIZATION INVOLVED The Respondents is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES At the outset, it may be well to define the principal issue before the Board. As framed by the amended complaint and as clarified at the hearing by statements of the General Counsel, the Respondent's counsel and the Trial Examiner, the issue is a narrow one - whether Dufour and Mathews were unlawfully denied referral to specified jobs on equal terms with other job applicants. Not questioned is the validity of the hiring hall or the general practices thereunder, although the General Counsel in his brief to the Trial Examiner is sharply critical of the operation of the hiring hall as it lent itself to unfair and discriminatory treatment of Dufour and Mathews. The period of alleged unequal treatment of the named employees is limited to February 11 to November 25, 1969, for Dufour and June 16 to August 26, 1969, for Mathews. The other litigated issue is whether certain remarks made by Respondent's officials to these individuals amounted to restraint and coercion of employees prohibited by Section 8(b) (1) (A) of the Act. A. The Evidence 1. The contracts It is undisputed that at all material times the Respondent has operated an exclusive hiring hall for the referral of qualified employees in the operating engineering trade to employer-parties to the Respondent's collective-bargaining contract with the AGC, also known as the Building Trades Agreement .6 Article XIII of this agreement provides: Each Contractor working under this Craft Agreement, agrees that when seeking additional employees: (a) He shall seek such additional employees required, from among individual craftsmen who have been employed by him within the geographical area covered by this contract within the preceding three months and who have the necessary qualifications. The Contractor will notify the Union when he hires such an employee. (b) Failing to secure such additional qualified craftsmen as set forth in sub-paragraph (a) above, the Contractor agrees that the Union shall be notified in advance when the Contractor is in need of additional qualified craftsmen in order that the Union may have an opportunity to submit for the employer's consideration any such qualified 5 The Respondent is a statewide organization having a district office in New Orleans , with which we are solely concerned Other district offices of the Respondent are located in Baton Rouge , Monroe , Shreveport, Lake Charles , and Lafayette , Louisiana s The effective term of this agreement is from May 15, 1968, to April 30, 1971 r This agreement is really one of a two-part contract between the Respondent and Industrial Relations Division , Louisiana Highway and craftsmen that the Union may know to be available and the Contractor agrees to give fair consideration as to the qualifications and availability of such proposed employees submitted by the Union. The Contractors also agree that the Union shall have the right to question the qualifications of employees covered by this Agreement and any claims by the Union that an employee is not qualified shall be processed through grievance and/or arbitration procedures provided for herein. (c) Failing to secure such additional qualified craftsmen as set forth in sub-paragraph (b) above, within forty-eight (48) hours, (two working days), the Contractor shall seek such qualified craftsmen as needed from any source available. (d) It shall be the responsibility of the Contractor and not the Union to approve or disapprove of all applicants for employment. (e) Nothing contained in this Article is intended or shall be construed or interpreted to conflict with any laws covering subject matter herein. The hiring system thus established under the AGC Agreement has also been utilized to refer job applicants to employer-parties of the so-called Heavy Construction, Pipeline and Tank Agreements. The applicable terms of Article V of the Heavy Construction Agreement7 provide: In "Heavy Construction," all areas .. . In the event the contractor requires employees and is unable to fullfill his requirements from among workmen who have been employed by him within the preceding three months or who are now employed by him, he will notify the union of such need and will consider workmen sent by the union on a nondiscriminatory basis who have the necessary qualifications for the position to be filled. If the union is unable, within 48 hours (2 working days), to furnish for the contractor's consideration the qualified workmen required, the contractor may employ such other men as are required. In the latter event, the contractor will notify the union of the name, classification and date of hiring of such men who are hired. After making provisions for compliance with Federal and State Laws and Presidential Executive Orders, Article V further states: The Contractors agree that under any circumstances they will continue to seek referral of required personnel from the Union to the extent that the Union is able to meet the Contractors' requirements in keeping with any conciliation or compliance agreement. The Pipe Line Agreements provides for prejob confer- ences to discuss, among other things, the number of men to be employed and recognizes the employer's need to have "available experienced and qualified employees" and "the Heavy Branch of the AGC for a term running from July 1, 1968, through March 31, 1971 This case is solely concerned with the provisions relating to "heavy" work The provisions dealing with "highway" work is not here involved 8 This agreement was negotiated by International Union of Operating Engineers and Pipe Line Contractors Association effective from August 1, 1968, to July 31, 1971 The Respondent administers this contract in Louisiana OPERATING ENGINEERS , LOCAL 406 257 right to employ and bring into the job men who are regular employees in Employer's work."9 As for hiring additional employees, Section II(L) of the Agreement provides: (1) In the event a valid non-discriminatory exclusive referral procedure has been established by collective bargaining between a local of the Union and associa- tion of highway and heavy contractors in the area in which the job is to be done, Union shall notify the Association from time to time as to the existence of such exclusive referral procedures and Employer agrees to utilize such referral procedures upon the following conditions: (a) Nothing in this Agreement shall affect the Employer's inherent right to determine the competency and qualifications of his employees and his right to reject and discharge men accordingly. (b) The selection of applicants for referral to jobs shall be on a non-discriminatory basis and shall not be based on or in any way affected by race, color, creed, union membership, by-laws, regulations, constitutional provisions, or any other aspect or obligation of union membership, policy or requirement. (c) Workmen referred under Article II to the contractor's job who are not able to perform the job to which they are referred because of their own lack of qualifications, or from some other reasoniwhich is the workman's own responsibility, shall not be paid show- up time. (d) Qualified applicants required by Employer at the start of the job must be referred by a local referral office within 48 hours of the receipt of Employer's request; those required by Employer after a job has started must be referred by a local referral office within 24 hours of the receipt of Employer's request. If the local referral office fails to comply with this condition, Employer may secure qualified applicants from any other source. Article II of The Tank Agreement 10 provides as follows: On work performed under this contract, the Contrac- tor may bring to the job the first operator ... . All other employees on work performed under this contract shall be obtained by the Contractor through referral from the Union, from its out of work list or referral system, which will be operated on a non- discriminatory basis. If the Union is unable to furnish qualified employees within 48 hours of request, the Contractor may obtain such employees from any other source, but if the Contractor avails himself of this prerogative, such employees must immediately check in with the Local Union after hire to advise date of hire, name, address and Local Union affiliation, if any. Contrary to the Respondent's contention, I find that pursuant to the provisions of the Heavy Construction, Pipe Line and Tank Agreements it undertook to operate and 9 Sec 11, (J ) of the agreement defines the words "regular employees " 10 This agreement was negotiated by the Respondent with the signatory contractors on December 7, 1965, for a term of I year and yearly thereafter in the absence of 60-day notification of termination given by either party 11 A "callback" designates an employee requested by an employer for whom the employee had worked in the area within the preceding 3 months It is more fully described hereinafter 12 However, if the referral was made by telephone or the dispatched maintain an exclusive nondiscriminatory referral system, as it concededly did under the AGC Agreement. 2. The referral practices In administering the contractual hiring hall during the period of the alleged discrimination against Dufour and Mathews, the Respondent followed virtually the same unwritten established practices which govern the referral of operators and oilers today. During that period, this function was performed by Mario J. Caluda, the Respon- dent's treasurer and business agent, Charles B. Rappold, Sr., its president and assistant business agent, and until his resignation on June 4, 1969, Assistant Business Agent Emerson Simmons, Jr., a controversial figure in the Union's hierarchy. The particular practices which prevailed at the time of the events herein may be described as follows: Referral began with a request for operators or oilers made by a contracting employer, as required by the applicable bargaining agreement . The employer indicated, among other things, the estimated duration, location, and reporting time of the job, the equipment to be run, and whether or not it was a "callback." 11 An operator could not be referred to an oiler's job unless an oiler declined it or one was not available. A work order was usually prepared to be given to the dispatched individual for delivery to the employer.12 Several work orders in evidence show the number of days the job was estimated to last; others state a "few days"; and so.ne contain no notation at all or denote the referral as a "callback." The method of selecting job applicants for referral depended on the estimated duration of the job or whether it was a "callback." Where the job was expected to run for a period longer than 3 days,13 the Respondent utilized an out-of-work list, which separately recorded the names of operators and oilers. This list was prepared by an office clerk from information taken from registration slips unemployed applicants were required to fill out, and it included their dates of registration and telephone numbers where they could be reached.) Although the out-of-work list provided spaces in which to note the equipment registrants were capable of operating, this information was lacking for most of them. This list was brought up-to-date at different times 14 by transferring to a new list the names of individuals who presumably had not yet been referred to the longer type job. According to Caluda's testimony, when a job of more than 3 days estimated duration became available, it was the Union's practice to select from the out-of-work list the individual with the earliest registration date who, in the business agent's opinion, was qualified to operate the particular equipment and to telephone him at home and offer him the job. If the registrant declined the job 15 or could not be reached, the business agent telephoned the offer to the next qualified applicant on the hst. Upon individual was otherwise unable to obtain the work order before reporting for work, the work order was dispensed with 13 It appears from Caluda's testimony that, as a result of a recent membership vote , this period was changed to more than 5 days. 14 At the present time this is done on a regular monthly basis. 15 It was not unusual for registrants to turn down jobs in order to wait for better job opportunities or for any other reason Such rejection did not affect their position on the list 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD acceptance of such a job, the dispatched employee's name would ordinarily be removed from this list,16 making it necessary for the individual to reregister and go to the bottom of the list if he desired new employment after completion of the job to which he was referred. Caldua, however, conceded that not all names of individuals who secured employment lasting more than 3 days would be stricken from the list. This he attributed to the Union's lack of knowledge of the actual duration of the job,17 its inability to police all Jobs, and the employees' dishonesty in not furnishing this information to the Union. In determining the applicant's qualification for referral, Caluda testified, he generally relied on personal knowledge of the individual's capabilities derived from Caluda's long association with the hiring hall and observation of the individual's work. However, he also conceded that he might refer an individual to a job to operate equipment the individual had not previously run, if the individual asked for the opportunity to do so Moreover, Caluda testified that, of necessity, he would accept a new registrant's representation of his capability to operate specified equipment and refer him to such Jobs. In this connection it is noted that under the AGC contract, as well as under the other contracts mentioned above, the employer has the right to determine a dispatched employee's qualifications to do a particular Job and to send him back to the hiring hall if found to be wanting. With respect to referrals to estimated 1- to 3-day Jobs, the out-of-work list was not ordinarily used. Instead, Business Agents Caluda and Rappold followed a free-for-all procedure for distributing these jobs. Thus, when a work order for a 1- to 3-day Job was received, Caluda or Rappold called it out in the hall where job applicants were assembled, specifying the details of the job, including the equipment to be operated. The first person who reached the business agent to claim the job was referred. Although Caluda testified that, if there were two qualified contenders they tried "to go to the list and see who . . (was) on top" and awarded him the Job, I am convinced from my analysis of the entire record that, if the list had been used for such purposes, it would have been on rare occasions. Caluda also testified that, if no one in the hall accepted the announced job, it was his practice to select at random from the out-of- work list the name of an individual whom he would then telephone to offer him the job. Unlike Caluda and Rappold, Assistant Business Agent Emerson Simmons, who also handled referrals until his resignation on June 4, 1969, did not call out the job in the hall. It was his practice simply to designate an individual he chose to refer. No evidence was adduced what standards, if any, he used to make the selection. To Dufour, Simmons' procedure was even more offensive than that pursued by Caluda and Rappold because, as Dufour testified, under the latter system, at least, "everybody had more or less a chance at" the job. It appears that acceptance of a 1- to 3- day job did not affect the individual's standing on the out- of-work list or eligibility for referral, although if the job lasted longer than 3 days, his name was supposed to be stricken from the list. Regardless of a registrant 's standing on the out-of-work list, an employee could be referred on a priority basis as a "callback" to an employer covered by the AGC contract,is provided the employee had worked for the employer in the area within the preceding 3 months. Although the AGC contract only requires the employer to notify the Union when he hires such an employee , the practice has been for the employer to request the Union to refer the individual. According to Caluda's testimony , "callback" requests have been honored without verifying whether the employee actually met the 3-month employment condition. Finally, there is evidence in the record of instances of departures from the foregoing practices . Except with respect to jobs here in question , discussion of this evidence would serve no purpose but to demonstrate the Respon- dent's control over the hiring hall - a fact which cannot be disputed. 3. Alleged discrimination against Dufour a His opposition to the administration of the hiring hall and incumbent union officials Dufour, an operating engineer and member of the Respondent for 19 years, customarily used the Respon- dent's hiring hall to secure employment in the trade until the latter part of November 1969,19 when he no longer became available for referral. Dissatisfied with the operation of the hiring hall, Dufour, on February 21, drafted a letter addressed to Union President Rappold in which he expressed the need for improvements in hiring hall procedures; criticized the favoritism and discrinuna- tion practiced by Assistant Business Agent Emerson Simmons and the refusal of the office secretary to permit members to inspect the out-of-work list; and requested assistance in filing a formal grievance with the Local. Dufour thereupon delivered this letter to Rappold in the presence of Business Agent and Treasurer Calduda and Financial Secretary Peter Babin. After all three read the letter, Rappold expressed sympathy with Dufour 's "cause," asserting, however, an inability to remedy the situation. At Babin's suggestion, Dufour rewrote the letter and sent it to Lawrence Simmons, Emerson's uncle who was the Respon- dent's statewide business manager in overall charge of the Respondent's affairs. Also following Babin's advice,Dufour, on February 24, mailed a copy of this letter to the Inter- national Union's general president in Washington, D. C., urging that consideration of his complaint be expedited. On February 25, Rappold, on behalf of Business Manager Lawrence Simmons, responded to Dufour's letter in which he enclosed certain requested documents and advised Dufour that the out-of-work list was available for examination by him and other employees working out of the union hall. Stating that Lawrence Simmons and he would be glad to discuss the matters set forth in Dufour's 16 Under the present practice, the name must be stricken if the job lasts for more than 3 days did not last that long more than 5 days 18 The other contracts mentioned above also recognize preferential 11 There have been occasions when jobs have lasted longer than the treatment of present and former employees estimated time Conversely, an individual's name would be restored to the 19 Unless otherwise indicated, all dates relate to 1969 list with his former registration date if thejob to which he was dispatched OPERATING ENGINEERS, LOCAL 406 259 letter and to explain the Union's referral procedures, Rappold suggested that Dufour communicate with him to arrange for a meeting during the week of March 3. About a day after sending this letter, Rappold approached Dufour and informed him that Lawrence Simmons had appointed him to take care of the matter and that he (Rappold) would do everything he could "to discourage" what Dufour was attempting to do. Several days later, Dufour was advised by the International's general president to meet with the Union's president and business manager to straighten out the problem raised by Dufour. A meeting with Lawrence Simmons and Rappold was held on March 4. In answer to Simmons' question, Dufour stated that he wanted an honest hall and a curb on Emerson Simmons' power. Lawrence Simmons replied that he would see what could be done and then directed Rappold to secure the work order for the Bagwell-Neal job which Simmons handed over to Dufour. Dufour thereupon went to work for Bagwell-Neal, completing 174 hours by the time the job ended about March 28. On several occasions following the March 4 meeting, Rappold engaged Dufour in conversations in the Union's back office in repeated efforts to persuade Dufour to drop and forget the matter. Rappold pointed out that his demands for an honest hiring hall and things of that nature would only hurt the men because the Union would lose control of the hiring hall and the Government would become involved with the result that anybody could come in and sign the out-of-work list and would have to be put to work. Rappold also warned Dufour that he was "creating a disturbance . . . [and] was rocking the boat . . . [and] was hurting . . [himself ] personally by doing this." 20 That Emerson Simmons' handling of job referrals was subject to serious criticism and probably led to his forced resignation on June 4, is indicated in statements made by Financial Secretary Babin to Dufour. About a day or two before Emerson Simmons' resignation, Dufour had a telephone conversation with Babin, in the course of which Babin told him that "if you people would know how many jobs go out the back door, how many people don't sign in or sign out . . . if you all would ride around the city and see how many jobs are going on . . . you would want to kill" Emerson Simmons and the business agent. 21 On another occasion in August, during the period of the 1969 union election, 22 Babin discussed with Dufour and Dale G. Agee, another member of the Union, Emerson Simmons' handling of the hiring hall. Babin told them that Emerson Simmons had for years starved some of his friends, 20 The foregoing findings concerning Dufour-Rappold conversations are based on the former's testimony which I find more convincing and believable than Rappold's simple denial that he told Dufour he was hurting himself or was rocking the boat 2i Babin's quoted remarks are derived from the testimony of Dufour who I find was a reliable and trustworthy witness Babin could not recall this conversation In my opinion, Dufour's testimony is not impugned by the fact that his pretrial affidavit given to a Board agent does not mention that in this conversation he also told Babin that Babin was "cut up to pieces" at a private meeting of Emerson and Lawrence Simmons and several operators it is quite clear that the affidavit corroborated Dufour's remarks regarding Emerson Simmons' hiring hall practices which are in question in this case 22 It is not particularly important to determine whether this incident occurred at a time when incorrectly addressed envelopes containing ballots were being remailed, as Dufour testified, or at a time when the ballots were including himself, and other people who had been using the hiring hall for 20 years, noting that Dufour was one of those individuals.23 In the summer of 1969, Dufour actively participated in the campaign for the election of officers scheduled to be held in August. He endorsed candidates who opposed some of the incumbents, openly solicited support for his candidates, and wrote and passed out campaign literature. During this period, on June 9, Dufour wrote President Rappold a letter in which he questioned Rappold's motives and actions at the Union's June 4 and 5 meetings where he was improperly deprived of the opportunity to speak on the subject of Good and Welfare. Continuing, Dufour chided Rappold for permitting Lawrence Simmons to indulge in an abusive and racist tirade against members and his ruling out of order members who objected to such conduct of officials, while not silencing supporters of the admimstration. b. Denial of referral It is the General Counsel's position that Dufour was discriminatorily denied referral to 32 specified jobs he was qualified to perform during the period from February I I to November 25. In this penod, Dufour received some 27 job assignments, most of which were for a single day, a few for 2 or 3 days, one for 5 days, another for 174 hours, and the last referral for I to 1-1/2 months. The 174-hourjob was a referral made to Bagwell-Neal on March 4 under circumstances related above when Dufour complained to Business Manager Lawrence Simmons concerning the way the hiring hall was run. The last referral was to a Boh Bros. job and was given to Dufour on July 28, 6 days after he filed the initial unfair labor practice charge in this case. From February 11 to November 25 Defour was registered on the out of work list.24 Until the middle of September, he also regularly sought employment at the hiring hall, except when working on a referred job, reporting every morning about 7 o'clock and usually remaining there until 10 a.m. or after the business agents left the hall on their regular rounds. After the middle of September, Dufour discontinued his personal appearances at the hiring hall for the asserted reason that referral to goodjobs were not made there. However, this did not affect his availability for jobs of longer than 3 days estimated duration which, as indicated above, were customarily offered over the telephone. Although Dufour could at all being counted a week or two later, as Dale G Agee recalled 23 The foregoing account is based on the mutually corroborating testimony of Dufour and Agee , which I credit Although this conversation was not mentioned in Dufour's pretrial affidavit, neither Dufour nor Agee appeared to me to be individuals disposed to fabricate testimony against Babin with whom they apparently were not at odds On the other hand, Babin , who could not recall having had the conversation in question, did not impress me as a candid witness His reluctance to admit his awareness of the way the hiring hall was being operated and Emerson Simmons' conduct in that regard does not enhance his credibility 24 Dufour's original registration date in 1969 was January 27 Upon completion of his Bagwell -Neal assignment mentioned above, he reregistered on the out-of-work list, as he was required to do, on March 31 Apparently, after his job with another contractor ended, he again registered on April 23 The last time Dufour registered was on September 16 after his Bob Bros job terminated 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD times be reached by telephone at the number noted on the out-of-work Iist25 for referral to the longer jobs, he admittedly was never called by the business agents,26 much less offered the jobs in issue here. It is conceded that after November 25, Dufour also became unavailable for the longer term jobs. Curiously, in the subsequent months Dufour received from the Union repeated telephone offers of jobs, which he declined.27 The General Counsel claims that Dufour was entitled to referral to the jobs considered below, which he was qualified to perform, on the basis of his higher standing on the out-of-work list than that of the individuals who were awarded the jobs. However, insofar as referral to I- to 3- day jobs is concerned, Dufour's right to those jobs cannot be tested by his position on the out-of-work list. As previously noted, it was the Respondent's general practice to utilize the list only to make referrals to jobs of longer estimated duration. On the other hand, in awarding the I- to 3-day jobs, Rappold and Caluda customarily followed the procedure of announcing them in the hall and referring the individuals who were the first ones to reach the business agent to claim these jobs, whereas Emerson Simmons awarded jobs to individuals he chose. Although these procedures certainly leave much to be desired, the amended complaint does not allege their invalidity; rather the gravamen of the alleged violation is unequal treatment accorded Dufour.28 However, the record contains no evidence that Dufour was ever refused referral by Rappold or Caluda when he succeeded in being the first to claim an announced job or that he was otherwise treated differently 25 Dufour during the period involved utilized an answering service 26 There is one exception and that is the Boh Bros job which Dufour received over the telephone after filing his unfair labor practice charge herein 27 It appears that Dufour was engaged at that time in other pursuits to support himself and family 21 This is also the amended complaint's theory of the discrimination practiced against Mathews 28 Contractor 1. Bartley, Inc. 2. H. C. Price Co. 3. H. C. Price Co. 4. Creole Electric Co. 5. G & T, rental contractor of from other employees. With respect to Emerson Simmons' assignments, there is also no evidence that Dufour, any more than other job applicants in the hall, was entitled to those jobs over the individuals who actually received them. The particular jobs shown by the record to fall into the category of 1- to 3-day jobs, as well as those not shown to be of longer duration where the out-of-work list, under the Respondent's practice, would have relevance in determin- ing referrals, are set forth below.29 Turning to the jobs of estimated longer duration which the General Counsel urges should have been, but were not, offered to Dufour by telephone in accordance with its conceded practice, the record discloses the following relevant information concerning the referrals: 1. Holiday Inns of America. Eddie Roth was referred to that job by Business Agent Emerson Simmons on February 26 as a hoist operator and worked there about 3 months. His latest registration date at the time of referral was February 25.30 Dufour, who was qualified to perform that work, had a registration date of January 27. Neither Simmons nor any other union representative testified to explain the failure to offer thisjob to Dufour. 2. Foster Wheeler Corp. Melvin Polk received this referral as a tugger operator from Business Agent Rappold on April 28, which was the same date as his registration date on the April 14 out-of-work list.31 Although Dufour's latest registration date was April 23, neither Rappold nor any other union representative gave testimony as to the reason why Dufour's higher standing on the list was complaint to add another Pearl Masonry job on Oct. 24 to the list of jobs to which Dufour was entitled to be referred by reason of his standing on out-of-work list. As this j ob was for 1 or 2 days & therefore not governed by out-of-work list, I find it unnecessary to reconsider my ruling.) 14. Date of Referral 15 . Feb. 11 16. Feb. 11 (Windzel referred) 17. Feb. 11 (Ebeier referred) Feb. 11 H. C. Price Co. Feb. 19 6. Standard Roofing Co. 7. Peter Kiewit & Feb. 20 Sons Inc. March 3 8. Bagwell -Neal June 10 9. Holiday Inns of America 10. Pearl Masonry, June 18 Inc. July 10 11. Tudor Construction Co. July 15 12. Houston Contracting Co. 13. Pearl Masonry, Inc. Oct. 10 Oct. 22 (The G.C. requests that T.X. reverse his ruling denying G.C.'s motion to amend Pratt Farnsworth, Inc. Associated Pipeline Contra. Sam P. Wallace Co., Inc. Oct. Oct. Nov. 27 31 6 Pratt Farnsworth, Inc. Nov. 17 (Although it appears this was a short term oiler's job which should have been called out at hiring hall, it was given to Clyde Kennedy at request of his brother, the operator on job, in order to have company on the long trip to jobsite. However, it is clear that, had the job been offered at the hall, Dufour would not have obtained it since he had previously stopped going to hall for employment.) 18. Trust-Kote, Inc. Nov. 17 19. Pittsburgh Des Moines Steel Co. Nov. 24 30 The January out-of-work list also contains an earlier registration date of October 21, 1968 However, this date was deleted , and was apparently continued in error on the subsequent February 25 out-of-work list 31 Polk's registration date of March 12 , mentioned in Business Agent Caluda's testimony , was obviously superseded by the later April 28 date when he probably reregistered after he completed an earlier assigned job lasting more than 3 days OPERATING ENGINEERS, LOCAL 406 261 ignored. According to Business Agent Caluda, Polk worked 176 hours on thisjob. 3. Al Johnson Construction Co. Emerson Simmons referred Burley Touchet to this job on May 6 to operate a forklift. Caluda testified that Touchet worked 59 hours on this job. Here, too, the Respondent furnished no testimoni- al explanation why Dufour, whose registration date on the April 14 list was April 23, was passed over in favor of Touchet whose latest registration date on that list was April 25.32 4. Con-Plex. On June 19, Russell Samples was referred by Rappold to this job to operate a crane with a clam bucket. The job lasted 165 hours. The June 19 out-of-work list shows that Samples' latest registration date at the time of referral was June 17, while Dufour's was April 23. Although Rappold testified that Dufour was not qualified to run the clam bucket, he did not state that this was the reason for not offering him thisjob. Moreover, he admitted that he had never asked Dufour whether he was capable of operating that equipment. Caluda also gave testimony that Dufour lacked the qualification to operate the clam bucket. He apparently formed this judgment because he had never seen him run one and had never referred Dufour to such a job. However, he admitted that he had referred new registrants to operate equipment, relying solely on their representation that they could do the job. Indeed, Caluda conceded that, if individuals requested the opportunity to handle certain equipment they had never previously run, he would refer them to suchjobs. Disputing Rappold's and Caluda's opinion of his qualification to operate a clam bucket, Dufour, who was licensed to operate this and other equipment, testified that he was capable of operating a clam bucket and had actually done so. I credit Dufour's testimony and doubt that Rappold or Caluda honestly believed that Dufour was not qualified to operate a clam bucket. The Respondent also suggests that Dufour was not given the Con-Plex assignment because he was working on another job for a contractor, James O'Neill, to which he was referred on June 17. However, there is no evidentiary support for such a contention. Moreover, although Dufour worked 28 hours on that job, it appears from the retention of his name on the out-of-work list that thejob did not last more than 3 days and, under the Respondent's practice, was not precluded from receiving over the telephone referral to long term jobs according to his standing on the 11St.33 5. Houston Contracting Company. On September 22, Caluda referred Ernest Herrin to this job to operate a concrete mixer . Caluda could not remember how Herrin was selected for thatjob which, it appears, was to last about a month. The September 9 out-of-work list discloses 32 Although the list also shows a prior registration date of February 24 for Touchet, as Caluda testified, it was deleted and evidently superseded by the later April 25 date when he reregistered after intervening employment 33 On July 28, 6 days after Dufour filed his unfair labor practice charge herein, Caluda telephoned Dufour and referred him to a long term job with Bob Bros, although Dufour informed him that he still had a day to work on a short-term job to which he had previously been referred 34 Dufour reregistered on that date following termination of his Bob Bros Job Herrin's registration date as September 22 and Dufour's as September 16 34 6. Pittsburgh Des Moines Steel Co. On October 8, Caluda telephoned William Grace at home and referred him as a unit operator. This job was expected to last a month or so. When cross-examined concerning Grace's selection for the referral, Caluda testified that he thought that Grace "was the first one ... in line for it," and that Dufour was below him on the list. However, Grace's most recent registration date on the applicable September 9 out- of-work list was October 3,35 whereas Dufour's registration date was September 16. 7. Westinghouse Electric Corp. On October 20, Rap- pold referred Frank Favalora as a sandblaster. As Favalora worked 40 hours there, in all likelihood the job lasted more than 3 days. The October 12 out-of-work list shows two registration dates for Favalora - September 22 and October 22 - either of which is subordinate to Dufour's September 16 date. Neither Rappold nor any other representative of the Respondent offered an explanation at the hearing why Dufour was passed over. 8. Walter J. Barnes Electric Co., Inc. This was a referral given by Rappold to Venix Tassin on November 20 to operate a ditch witch. According to Caluda, this was a 32- hour job.36 From this it may reasonably be inferred that its duration exceeded 3 days. Although the October 12 out-of- work list shows Dufour's September 16 registration date to be superior to Tassin's October 24 date, Rappold furnished no testimony concerning the circumstances of this referral. In addition to the foregoing, the General Counsel claims that Dufour was entitled to referral to four jobs which were given to other registrants on the basis of "callbacks," without regard to their relative standing on the out-of-work list. The contractors on these jobs were Peter Kiewit & Sons, Inc.; H.B. Fowler, Inc.; E. I. Dupont De Nemours & Co.; and R. J. Gaffney, Incorporated, all of whom it was stipulated, were bound by the referral provisions of the AGC Agreement. As discussed above, the"callback" practice developed from the clause in that contract which requires the contracting employers to give preference in employment to qualified craftsmen who were employed by him in the geographical area covered by the contract within the preceding 3 months.37 The circumstances of the referrals in question are, as follows: 1. Peter Kiewit. On June 11, at the request of the master mechanic on that job, Caluda telephoned James McKinney and referred him there as a unit operator. In making this referral, Caluda did not verify whether McKinney was eligible for "callback" under the terms of the contract. He testified that it was not his policy to question the propriety of a contractor's request for a "callback," or to ascertain independently the employee's eligibility for "callback." McKinney worked 144 hours on this job. 35 it is quite clear that Grace 's earlier April 22 registration date indicated on the list was supplanted by the October 3 date 36 The work order contains the notation "32 November, 127 December," which probably indicates the hours worked in November and December 17 As previously indicated, although the contract also imposes on the employer the obligation to notify the Union of such hiring, the employers have followed the practice of requesting the Union to make the "callback" referral 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. H. B. Fowler, Inc. W. R. Tinker was referred to this job on September 23 by Caluda to operate a deck engine. This was done in response to the request of the foreman or master mechanic on that job who told Caluda that Tinker had previously worked for him. No further inquiry was made to verify Tinker's eligibility for thejob. 3. R. J. Gaffney. Tommy Burros received this "callback" from Caluda on October 24 to run a cherry picker. Here, too, Caluda did not ascertain whether Burros had the requisite employment with Gaffney to entitle him to a "callback." 4. Dupont. Luke Passman received this "callback" from Rappold on November 25 to run a front-end loader. There is no evidence whether Rappold verified Passman's eligibility for "callback." There is one other job, noted on the Work Order to be for a "few days." which the General Counsel asserts should have been assigned to Dufour by reason of his position on the out-of-work list. That was a referral given by Caluda on July 10 to Peter Cavallo, a man about 70 years old, to operate a hoist for Tri-State Roofing Company of Tennessee. Concedely, this was not a "callback" in the strict contractual sense since Cavallo apparently did not meet the 3-month prior employment requirement. Caluda testified that he sent Cavallo to thisjob at the request of the contractor. He further testified that he was "proud" to honor this request for an elderly worker who was capable of performing that job, especially in view of difficulties encountered in placing senior citizens. It is also clear that Caluda did not follow the out-of-work list in selecting Cavallo whose registration date was July 2 as compared with Dufour's April 23 date. 4. Alleged discrimination against Mathews a. His opposition to the Union's administration Mathews, a union member since 1967, is an operating engineer who for som,-time has been utilizing the hiring hall to secure employment. It is alleged that he was subjected to discriminatory treatment in job referrals during the period from June 16 through August 26, in retaliation for his criticism of the incumbent officers' handling of union affairs. At a regular union meeting held June 4, Benny Audibert, a member, questioned Business Manager Lawrence Sim- mons concerning the propriety of his expending $739 of union funds for gifts for International Union officers. Simmons responded that, as business manager, he had the authority to do so. Supporting Audibert's position, Mathews took the floor and confronted him with a quotation from the Union's Constitution which prohibited such use of union funds without the membership's approval. Although Simmons challenged Mathews to submit the matter to a vote of the membership, no motion was made and the matter was dropped. At the same as This was a loan that Simmons had made to Dufour on March 4 at the meeting at which Dufour's complaint regarding the administration of the hiring hall was discussed That morning Dufour had lost his wallet 39 Although this is not one of the jobs to which the amended complaint alleges Mathews was entitled , the General Counsel relies on this incident as an illustration of the Respondent 's improper treatment of Mathews 40 These were July 10 and August 4 to Con-Plex, August 6 to Hayes meeting , nominations for the forthcoming union election in August were received. A slate was nominated to oppose the incumbent officers, including Simmons. Mathews cam- paigned on behalf of the opposition candidates discussing, among other things, the hiring procedures. "On the union floor," in Simmons' presence, Mathews also complained about the way the Union's affairs were then being conducted. On the morning of June 10, Lawrence Simmons entered the union hall and glanced around. Noticing Mathews, Simmons approached him and in a loud voice demanded to know when he was going to get off his back. In response, Mathews stated that he would do so as soon as Simmons returned to the Union's'I treasury the' $739 taken for the Christmas gifts. Manifestly irked by this reply, Simmons warned Mathews that he had "better get off his back or else." When Mathews asked whether Simmons was threatening him, Simmons retorted that he could take it any way he wanted to and repeated the admonition to get off his back, adding that, "if he couldn't handle people like .. . [Mathews] he didn't need to be in the office." This verbal exchange ended with Mathews' remark that that sounded fine to him. A few minutes after Simmons left to go to his office, he returned to ask Dufour to repay) the' $ 20 he had previously lent him,38 and remarked that, if Mathews needed any money, to get it from his friends. Dufour thereupon repaid the loan with money borrowed from another member, Roland LeGlue. About 3 or 4 weeks later, in the early part of July, Mathews arrived at the union hall, as he usually did, in search of work. There he was informed by a member that a job was available, which had previously been announced and declined by those present. Mathews thereupon asked Rappold for the job. Upon receiving Mathews' affirmative reply to his inquiry whether Mathews was able to run a tower crane, Rappold went to Simmons' office. Five minutes later, Rappold returned; informed Mathews "never mind about the job"; and told Tommy Holt, who had earlier refused the job, to take it.39 This Holt did but quit thejob in less than a week. b. Denial of referral Mathews testified that from the time he first started work- ing out of the Union's hiring hall until June 10, he had received "fairly steady" employment. The amended complaint alleges that thereafter between June 16 and August 26, Mathews was unlawfully denied referral to 19 identified jobs he was qualified to perform. It appears that during this period he was sent out to four 1-day jobs,40 which he was given in the union hall by being the first one to claim them at the counter after their announcement. In addition, either in the latter part of August or in September, Construction Company ( the job might have lasted an additional 1/2 day); and August 13 to Gertler-Hebert Although the latter Job was estimated to be for I day, Mathews worked there for 2 or 3 days, and after a layoff of a day or two, he was called back and resumed work for another "couple of days" The Union' s welfare records of employer contributions show that Mathews worked 48 hours in August for Gertler -Hebert. OPERATING ENGINEERS, LOCAL 406 263 Mathews was referred by telephone to an H. B. Fowler job which lasted more than a month.41 During June, July, and August Mathews, with few exceptions, regularly reported at the hiring hall about 7 o'clock every morning in an effort to obtain employment42 and remained at the hall until the business agents' usual departure Moreover, Mathews, who had registered on the out-of-work list on June 2, was always available to be reached by telephone during this period to receive referrals from the Union. However, no such offers were made until his assignment to the H. B. Fowler job. As in Dufour's case, the General Counsel maintains that Mathews should have been referred to the jobs noted in the margin below 43 by reason of his position on the out-of- work list, even though the evidence discloses that these jobs were estimated to last 1 to 3 days or the record fails to establish that their estimated duration was more than 3 days, referral to which would be governed by a registrant's standing on the list under the prevailing hiring hall practices. The circumstances surrounding these referrals are as follows: 1. W H. Williams Co. On June 16, Caluda referred James Clark to this job to operate an electric crane mounted on a barge in the Gulf of Mexico. Although the record does not indicate the duration of this job, it was offered to Clark by telephone. In explaining Clark's selection , Caluda testified that business agents aways try to accommodate Gulf employers who want men with previous experience on the Gulf and were familiar with that type of operation and that Clark was such a person and was available on the out-of-work list. In so doing, Caluda ignored Mathews' availability and his June 2 registration date which was earlier than Clark's June 10 date. Although Caluda did not give any reason for passing over Mathews, he testified that he had never sent Mathews out to operate a crane on the Gulf and that he did not think that Mathews was qualified to do such work. Mathews, however, testified that he was competent to operate the electric crane in question and that he had actually operated electric cranes mounted on ships at various locations in the river, which work required substantially the same skills. Indeed in July 1970, the Union referred Mathews to operate the same crane in the Gulf as Clark did apparently for the same employer. Mathews performed this work for 10 days when his job was finished and he was laid off. However, during 41 Mathews testified on direct examination that on August 24 he received a referral to a job he did not identify , which lasted more than a month Under cross-examination , Mathews answered in the affirmative to a leading question that he had previously testified on direct examination that he had been referred to an H B Fowler job after August 1969 According to the welfare records introduced in evidence, he worked 64 hours for H B Fowler in September but none in August 42 Mathews testified that during these months he had part -time night employment on the riverfront, which he had previously undertaken in anticipation of losing job opportunities as a consequence of his contemplated campaign against the union administration It is not asserted that he was ineligible for referral because of his part-time employment or that he was denied jobs for this reason 43 Date of Contractor Referral 1. Pearl Masonry June 26 2. George A. Fuller Co . June 27 3. McMillion Dozer Service July 8 his employment, Mathews was involved in two mishaps which caused damage to the crane.44 2. Imperial Constructors, Inc Caluda referred Frank Collegan to this job on June 24 to operate a backhoe Although the record does not indicate the duration of this job, it appears that Collegan was selected by Caluda because of his willingness to go to Thibodaux, Louisiana, where the jobsite was located. Mathews, whose registration date on the out-of-work list was June 2, while Collegan's was June 9, was not offered the job. Mathews testified that he probably would have accepted this job, if offered 3. F. Miller & Sons, Inc. Ronald Root was referred by Caluda to this job on July 14 to operate a well point. According to Caluda, before offering the job to Root over the telephone , he unsuccessfully called several registrants on the out-of-work list who had precedence over Root but declined to take the job because of its location in Thibodaux, Louisiana. However, Mathews was not called for thisjob,45 despite the fact that his June 2 position on the out-of-work list was higher than that of Root who had registered on June 13. 4. H. G. Fowler. On July 30, at the contractor's request, Caluda referred W. Tinker to that job to operate a deck engine. This was a "callback." Caluda testified that at the time he honored the request he knew that Tinker had worked for the contractor about a week or two before. 5. Fejta Construction Company, Inc. On August 15, about noon, Caluda referred Curtis Wacto to this job to operate a hoist. Wacto worked there 57 hours. Caluda testified that he offered the job to Wacto on the telephone after making several calls to registrants on the out -of-work list with earlier registration dates than Wacto 's July 30 date. Mathews, however, was not called, even though he had registered on June 2. When cross -examined as to the reason for bypassing Mathews, Caluda was unable to answer. There is some question whether Mathews was available for employment on August 15 since he had been referred to a 1-day job on August 13 where he ultimately stayed on to make a total of 48 hours. As discussed above, this was not an uninterrupted 48 hours of employment; rather it appears that after 2 or 3 days he was laid off and subsequently recalled. 6. Welding & Manufacturing Co. On August 19, George Russell was referred by Caluda as a forklift operator. Russell worked 148 hours on that job Mathews, „ate Lf Contractor Refer, rl 4. Tudor Co-tructson Co. July 15 5 Con-Plea July 17 6 Keller Construetion Co July 18 7. Keller Construe Cron Co July 29 8 Kendrrrk Extension Co July 30 9 Ford Construction Co. lug 5 10 Milton J -forsook, Inc. Aug 7 11 lird-States Constructor Aug 11 44 Although the employer's superintendent testified that he did not discharge Mathews for these accidents , he stated that he decided not to rehire him because of them In this connection , it appears that this employer had retained another crane operator who was involved in an accident which apparently caused more serious damage to a crane 45 Mathews testified that, because of the distance he would have had to travel to that job, the duration of the job would have determined whether he would have accepted it and that probably he would not have taken it for I day only However, this information is customarily given when a job is offered so that the applicant could decide for himself whether to take it 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whose June 2 standing on the out-of-work list was higher than Russell's August 15 registration date, was not called for that job. No explanation was proffered. 7. Joseph McCollum of Texas. On August 23, Caluda referred Ford Kennedy as a unit operator. Kennedy worked 56 hours on this job which was located in Bogalusa where he resided. Caluda testified that he "evidently" did not utilize the out-of-work list to fill that opening but gave Kennedy the job because he lived in the same city where the jobsite was situated. Mathews was not offered this referral, although his June 2 registration date was supenor to Kennedy's July 16 date. 8. Westinghouse Electric Corp. Curtis Hanka was referred to this job on August 26 by Rappold. The work order describes the job as "mechanic or unit oper." and contains no notation as to estimated duration. According to Rappold, the contractor stated that he needed a mechanic whom he could retain as a unit operator possibly for a day but if the individual was a good mechanic there was a great deal of work available for him to repair broken down equipment. Although Rappold did not indicate in his testimony how he happened to select Hanka for thejob or whether he even considered Mathews, he testified that Mathews was not a qualified mechanic. According to Mathews, he was capable of performing light mechanical work but was not a qualified "big equipment mechanic." Hanka had registered on July 30 on the out-of-work list before receiving this job, while Mathews' registration date was June 2. B. Concluding Findings 1. With respect to discrimination against Dufour and Mathews It is settled law that a labor organization which undertakes to operate a hiring hall pursuant to contract or other arrangement with employers as the exclusive source of recruitment of employees is obligated to refer job applicants without regard to their union membership or loyalty or the lack of it.46 Moreover, under the concept of fair representation developed in Miranda, 47 the labor organization, acting as the statutory bargaining representa- tive of such employees, is further prohibited from making referrals on the basis of unfair, irrelevant or invidious considerations or classifications, such as race.48 Discnmi- nation for the foregoing reasons has been held to violate Section 8(b)(1)(A) and (2) of the Act. Characterizing the system used by the Respondent for dispatching employees to the I- to 3-day jobs, as unfair, irrelevant, and invidious by Miranda standards, the General Counsel argues that discrimination against Dufour and Mathews was established because the Respondent admittedly did not consult the out-of-work list in referring applicants to certain jobs of such short duration mentioned in the amended complaint to which Dufour and Mathews 46 Local 357, International Brotherhood of Teamsters v N L R B, 365 U S 667 47 Miranda Fuel Company, Inc, 140 NLRB 181, enforcement denied 326 F 2d 172 (C A 2), see also Local Union No 12, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, 150 NLRB 312, enfd 368 F 2d 12 (C A 5), cert denied 389 U S 837 48 Cargo Handlers, Inc, 159 NLRB 321, Houston Maritime Association, had a prior registration claim. In addition, the General Counsel contends that Dufour and Mathews suffered discrimination for the same reasons with respect to other jobs to which employees were dispatched on the basis of the Respondent's "callback" practice, which assertedly was not contractually authorized. Finally, with respect to the longer term jobs to which referral was concededly supposed to be governed by relative standing on the out-of-work list, it is the General Counsel's position that the Respondent's failure to offer Dufour and Mathews certain jobs in this category constituted a breach of its duty of fair representa- tion and discriminatory because motivated by union- related considerations. The Respondent, on the other hand, denies that the lawfulness of its hiring hall practices respecting the assignment of I- to 3-day jobs and "callbacks" are in issue in this case. Furthermore, it vigorously urges that work has always been available to Dufour and Mathews on equal terms with other job applicants and that referrals have been made strictly on the basis of legitimate considerations. I find great difficulty with the General Counsel's attack upon the Respondent's hiring hall practices respecting the I- to 3-day jobs and "callbacks." The amended complaint does not allege such practices to be unlawful, much less that they were tainted by reason of the Respondent's failure to utilize the out-of-work list in making such referrals. Indeed, at the hearing, the General Counsel confirmed that the hiring hall practices were not in issue in the case and the Trial Examiner therefore made it perfectly clear that he would not determine their validity. What is actually involved and was litigated in this case is, in the language of the amended complaint, whether the Respondent violated Section 8(b)(2) and (1)(A) of the Act "by discnmmatonly refusing to refer . . . [Dufour and Mathews] on equal terms with other employee/members," to specified jobs. Turning then to this question, I am unable to find any evidence that Dufour and Mathews were treated unequally in the referral to short-term jobs. On the contrary, it appears that when Business Agents Rappold and Caluda called out those jobs in the hall, Dufour and Mathews had the same opportunity as others to compete for them. As Dufour testified, under that system, "everybody had more or less a chance" to get the announced jobs. In fact, when Dufour and Mathews succeeded in being the first ones to claim a job, they received the referral. Since, as shown above, the validity of these practices is not in issue, it is immaterial that the position on the out-of-work list of Dufour and Mathews, as well as that of other registrants, was superior to those of applicants awarded the announced I- to 3-day jobs. By the same token, the practice of Business Agent Emerson Simmons to designate individuals to receive such jobs in the hall does not automatically prove unequal treatment of Dufour.49 Significantly, no evidence was adduced to show the considerations which entered into Simmons' selection of individuals for the jobs to which the Inc, 168 NLRB 615, enforcement denied on other grounds 426 F 2d 584 (C A 5), see also Local 1367, International Longshoremen's Association, AFL-CIO, 148 NLRB 897, enfd 368 F 2d 1010 (C A 5), cert denied 389 U S 837, Local Union No 18, International Union of Operating Engineers, AFL-CIO, 144 NLRB 1365 49 As indicated above , Simmons' association with the Union had terminated before the period of alleged discrimination against Mathews OPERATING ENGINEERS, LOCAL 406 265 General Counsel contends Dufour and Mathews were entitled. While Simmons' procedure certainly lent itself to abuse and arbitrariness sufficent to create suspicion, more must be shown that Dufour and Mathews, to a greater extent than other job applicants, were deliberate objects of unequal treatment. In view of the foregoing, I find that the General Counsel failed to sustain his burden of proof that the Respondent discriminatorily denied Dufour and Mathews referral to the jobs respectively noted in footnotes 29 and 43, supra. Included in this group are jobs whose duration the General Counsel also failed to establish required consideration of Dufour's and Mathews' standing on the out-of-work list in determining their right to referral to jobs they were qualified to perform. Accordingly, I recommend dismissal of the relevant allegations of the amended complaint. With respect to "callbacks," I find that here, too, the evidence falls far short of demonstrating that Dufour and Mathews were victims of unequal treatment. As previously discussed, the AGC Agreement provides for direct priority rehiring by a contractor of qualified employees who had previously worked for him in the area the preceding 3 months, and for the contractor to notify the Union upon such hiring. Out of this provision the practice developed whereby the contractor, instead of personally seeking out the eligible individual he desires to rehire, requests the Union to dispatch that individual to the job. The Union customarily honors this request if the employee is available. Although the "callback" practice is not in issue, it is the General Counsel's contention that, by referring individuals to specified jobs in preference to Dufour and Mathews on the basis of the contractors' bare "callback" request, the Respondent "acted arbitrarily and without reasonable justification" and in disregard of the out-of-work lists and thereby subjected Dufour and Mathews to unequal treatment. I find this contention totally lacking in merit. Apart from the fact that Dufour and Mathews have themselves been recipients of "callback" referrals and those precedures are not subject to challenge, there is nothing in the record to convince me that the Respondent's departure from the contractor its honoring of the "callback" requests in question was prompted by union-related or unfair, irrelevant or invidious reasons, or that its conduct resulted in unequal treatment of Dufour and Mathews in violation of Section 8(b)(1)(A) or (2) of the Act. Accordingly, I recommend dismissal of the allegations of the amended complaint relating to discrimination against Dufour and Mathews with respect to the jobs listed below.50 Another conclusion, however, is compelled with respect to the longer term jobs51 which, under the Respondent's prevailing hiring hall procedures, should have been offered to Dufour, in preference to the recipients, by reason of 50 As discussed in the preceding part of this Decision, the employers of the "callback" jobs claimed for Dufour and the dates are Peter Kiewit & Sons, Inc - June 11, H B Fowler, Inc - September 23, R J Gaffney, Incorporated - October 24, and E I DuPont De Nemours & Co - November 25 The "callback" job which the General Counsel contends should have been assigned to Mathews is the H. B. Fowler , Inc, job on July 30 51 These are the jobs separately discussed in the preceding section of this Decision and are, as follows Holiday Inns of America - February 26, Foster Wheeler Corp - April 28, Al Johnson Construction Co - May 6, Con-Plex - June 19, Houston Contracting Company - September 22, Dufour's superior position on the out-of-work list. Clearly, Dufour was available for work and could be reached by telephone, the customary method of making job offers of more than 3 days estimated duration. The Respondent's suggestion that Dufour was not available for one of the jobs in question - the June 19 Con-Plex job - because he was elsewhere employed is unpersuasive. It appears that at that time Dufour's employment was on a short term job which neither affected his position on the out-of-work list nor rendered him ineligible for longer employment.52 Moreover Dufour's availability for such jobs certainly was not impaired by his decision reached in the middle of September to cease seeking employment of 1- to 3-day jobs directly at the hiring hall. It has not been uncommon for registrants to rely solely on telephonic offers for employ- ment . That Dufour was qualified to perform the work involved is not even disputed by the Respondent except with respect to the operation of a clam bucket crane on the Con-Plex job. However, I have heretofore found that Dufour was fully capable of running that equipment. Notwithstanding Dufour's higher standing on the out-of- work list, and his availability and qualifications, the Respondent furnished no plausible reason for bypassing him in assigning the jobs in question. In these circum- stances, it is reasonable to infer that the discriminatory treatment thus accorded Dufour was dictated, not by legitimate considerations, but by the hostility of the union leadership engendered by Dufour's persistent efforts to improve the hiring hall procedures and to unseat incum- bent officers by supporting rival candidates in the August election. Certainly, Dufour's activities were protected by the Act against infringement by his Union and its agents. The fact that, apart from Mathews later to be discussed, there is no evidence that other members who were also disenchanted with the Union's policies and opposed the administration were subjected to the same treatment does not exculpate the Respondent's discrimination against Dufour.53 Nor is a finding of discrimination against Dufour precluded because there were other names on the out-of- work list with earlier registration dates than Dufour's. Manifestly, discrimination against these other registrants was neither charged nor litigated.54 Accordingly, I find that the Respondent, in violation of Section 8(b)(2), attempted to cause and caused the indicated employers to discriminate against Dufour in violation of Section 8(a)(3) of the Act. Such conduct, I find, also amounted to restraint and coercion of employees in the exercise of statutory rights which Section 8(b)(1)(A) of the Act prohibits.55 While the union-related considerations for the discrimination against Dufour are obviously unfair, irrelevant, and invidious, I find it unnecessary to determine Pittsburgh Des Moines Steel Co - October 8, Westinghouse Electric Corp - October 20, and Walter J. Barnes Electric Co, Inc - November 20 52 Significantly , Business Agent Rappold , who made the referral to the June 19 Con-Plex job, did not testify that Dufour was not called because of his other employment 53 N LR B v. W C Nabors, d/b/a W C Nabors Company, 196 F 2d 272, 276 (C A 5), enfg 89 NLRB 538, cert denied 344 U S 865 54 These conclusions are equally applicable to Mathews' case hereinafter discussed 55 Cf. Local Union 136, Muskingum Valley District Council, 165 NLRB 1040, 1042 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whether, irrespective of such reasons, independent viola- tions were also established under the Miranda principle.56 There is one otherjob that the General Counsel contends was improperly withheld from Dufour on July 10. This job was given by Business Agent Caluda to Peter Cavallo, a 70- year old employee, who was below Dufour on the out-of- work list. As discussed above, Caluda made this referral in disregard of the list at the request of the contractor, Tn- State Roofing Company of Tennessee, because of the difficulties the Union encountered in placing its senior citizens. I find Caluda's explanation persuasive and negates the inference that this referral was prompted by Dufour's internal union activities or other improper considerations. Accordingly, I recommend the dismissal of the allegations relating to this asserted instance of discrimination. As in Dufour's case, I find that Mathews was also discriminatorily denied referral to longer term jobs,57 despite his superior standing on the out-of-work list. In so doing, I find no evidentiary support for the Respondent's contention that Mathews was not available for employment on the August 15 Felta, the August 19 Welding, the August 23 McCollum and the August 26 Westinghouse, jobs because he was previously referred on August 13 to Gertler- Hebert for whom he worked 48 hours and on August 24 to H. B. Fowler for whom he worked a month. There is no question that Mathews was referred out of the hall to the Gertler-Hebert job on August 13. However, it was for only 1 day, although unpredictably he was retained for 2 or 3 days and, after a layoff of a day or two, worked for another "couple of days," for a total of 48 hours. In addition, Caluda, in his testimony, did not advance Mathews' unavailability as the reason for not offering him the Fejta, Welding, or McCollum jobs.58 In these circumstances, a prima facie case of Mathews' availability for employment on those occasions was proved, which the Respondent failed to overcome.59 Similarly, at least a prima facie showing of Mathews' availability for the Westinghouse job on August 26 was also established. The evidence previously discussed shows that, in all likelihood, Mathews was assigned to the Fowler job subsequently to the Westing- house referral either at the end of August or beginning of September. This inference is strengthened by the fact that Business Agent Rappold did not testify that Mathews' unavailability was the reason for not dispatching him. Finally, not to be overlooked is the fact that the Respondent did not produce the Work Order on the Fowler job, as it did for other jobs, which could have accurately fixed the date of the Fowler referral and hence determined Mathews' availability. 55 Cf International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO, 166 NLRB 9l5 57 These jobs and their dates are, as follows June 16, W C Williams Co , June 24, Imperial Constructors, Inc , July 14, F Miller & Sons, inc , August 15, Fejta Construction Company, inc , August 19, Welding & Manufacturing Co , August 23, Joseph McCollum of Texas, and August 26, Westinghouse Electric Corp, all of which are discussed in the preceding section of this Decision SN Of course , if during the compliance stage of this proceeding it should develop that Mathews was actually not available to take any of these jobs, he would not be entitled to reimbursement for loss of earnings on these jobs 19 In its attachment to its brief, the Respondent indicates that Mathews Concerning Mathews' qualification to perform the work involved, the Respondent only questions his capabilities with respect to two jobs. The first one is the June 16 Williams job which required the operation of an electric crane in the Gulf of Mexico. Significantly, the Respondent does not urge that it refused to send Mathews to that job because of any ineptitude on his part. Indeed, it could not very well do so since in July 1970 it did refer Mathews to do the same work for the same employer. While it appears that Mathews had two mishaps on the latter job, it does not necessarily follow that he was not qualified for the June 16 assignment nor can those incidents retroactively explain Caluda's reason for not referring Mathews. The other job is Westinghouse, where the Work Order called for a "mechanic or unit oper." Undeniably, Mathews was qualified to run a quit. According to Mathews, whom I credit, he was also capable of performing light mechanical work, although admittedly he was not a "big equipment mechanic." However, no details were furnished at the hearing relating to the particular mechanical work involved from which it could be determined whether Mathews was really not qualified for the referral. Nor is the testimony of Rappold, who made the assignment, enlightening as to whether he even considered Mathews for thejob, much less ask him whether he possessed the skills to undertake it. In these circumstances, I have serious doubts that the evidence supports the Respondent that Mathews lacked the capabilities to fill the Westinghouse job or that Rappold honestly believed that Mathews was not qualified. All things being considered, I am not persuaded that the Respondent had a justifiable ground for failing to offer Mathews the indicated jobs. The true reason for depriving him of equal job opportunities I find lay in his criticism of the way incumbent officials were handling union affairs, including the Christmas gifts to International union officers and the hiring hall procedures, and his support of the slate of opposition candidates in the August election. Indeed, Mathews' activity, which probably precipitated the reprisal measures against him, was his determined efforts to force Business Manager Lawrence Simmons to return money taken from the Union's treasury for the Christmas gifts in asserted disregard of the Union's constitution. Foreboding such retaliatory response, was Simmons' warning to Mathews on June 10 to get off his back or "else" and that he could handle people like Mathews. In sum , I find that Mathews, like Dufour, was denied referral in the jobs previously noted in reprisal for his protected internal union activities and that the Respondent thereby violated Section 8(b)(2) and (1)(A) of the Act 60 was not offered the Welding job because Russell , the employee who was referred, had an earlier registration date than Mathews. However, the July 21 out-of-work list shows the opposite The attachment to the brief also suggests that it was the location of the McCollum job that was the reason for bypassing Mathews so In view of my earlier determination that the Heavy Construction Agreement provided for an exclusive hiring hall to be operated by the Respondent, I find without merit the Respondent 's contention that its failure to refer Mathews to the Imperial and the F Miller jobs was privileged As an obvious afterthought , the Respondent also argues that as union members Dufour and Mathews were under obligation to process their grievances over the treatment they suffered at the hands of union officials OPERATING ENGINEERS, LOCAL 406 267 2. With respect to independent restraint and coercion I have found that Business Agent Rappold, in an attempt to dissuade Dufour from continuing his campaign to improve the hiring hall procedures, warned Dufour that he was "rocking the boat" and was personally hurting himself. I have also found that Business Manager Lawrence Simmons, whose emmty and wrath Mathews incurred because of his efforts to force Simmons to return monies taken from the Union's treasury for Christmas gifts for International union officials, warned Mathews to get off his back or "else" and that he was fully capable of handling people like Mathews. As subsequent events proved, these were not idle threats as Dufour and Mathews actually suffered the consequences of their internal union activity in the loss of job opportunities. Plainly, such conduct constituted restraint and coercion of employees in the exercise of rights protected in Section 7 of the Act. IV. THE REMEDY Pursuant to Section 10(c) of the Act, as amended, I recommend that the Respondent be ordered to cease and desist from engaging in the unfair labor practices found and in like and related conduct and take certain affirmative action designed to effectuate the policies of the Act. I have found that the Respondent has subjected Dufour and Mathews to unequal and discriminatory treatment in denying them referral to certain jobs indicated in this Decision. To remedy this violation of their rights, it is recommended that these individuals be made whole for any loss of earnings they suffered by reason of the discrimina- tion against them in those jobs by payment to each of them of a sum of money equal to that which each normally would have earned during the period from February 11 to November 25, 1969, for Dufour, and June 16 to August 26, 1969, for Mathews,61 less his net earnings during the said period.62 Backpay shall be computed with interest on a quarterly basis in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. To facilitate the computation and to assure Dufour and Mathews equal referral treatment, the Respondent shall maintain and make available to the Board or its agents, upon request, job registration records and any other documents or records showing job referrals and the basis for such work assignments of employees, members, applicants, and registrants. I further recommend that the Respondent notify Dufour and Mathews that use of the hiring hall facilities will be available to them on an equal in accordance with the International constitution and the Union's by-laws and the applicable collective-bargaining agreements However, this defense was neither advanced in the Respondent's answer to the amended complaint, nor urged or litigated at the hearing Not surprisingly, the constitution and by-laws were not even put in evidence nor the contract provisions purporting to recognize employees' rights to grieve against the Union indicated Under the circumstances, no justifiable reason exists why the Board should relinquish its overriding function to adjudicate the unfair labor practice charges herein See Sec 10(a) of the Act which provides that the Board's power to prevent unfair labor practices affecting commerce "shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise " basis with other registrants with respect to job referrals. Posting of the customary notice is also recommended. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The companies involved in this case are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By refusing to refer Dufour and Mathews to the jobs listed in footnotes 51 and 57, supra, the Respondent attempted to cause and caused the respective employers to discriminate against them in violation of Section 8(a)(3) of the Act and the Respondent thereby engaged, and is engaging, in unfair labor practices within the meaning of Section 8(b)(2) of the Act. 4. By reason of this conduct, and by impliedly threatening Dufour and Mathews with loss of job opportunities controlled by it because of their protected internal union activities, the Respondent engaged, and is engaging, in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. The Respondent has not engaged in the other unfair labor practices alleged in the amended complaint to be in violation of Section 8(b)(1)(A) and (2) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 63 Respondent, International Union of Operating Engi- neers, Local 406, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Refusing to grant job referrals from its exclusive hiring hall facilities operated pursuant to contract or other arrangement with employers to Freddy J. Dufour and John L. Mathews or any other member, employee, job applicant, or registrant on an equal and nondiscriminatory basis in reprisal for their protected internal union activities, criticism of the hiring hall procedures, opposition to incumbent union officers, or otherwise causing or attempt- ing to cause employers to discriminate against members, employees, job applicants, or registrants in violation of Section 8(a)(3) of the Act. (b) Threatening members, employees, job applicants, or Si As indicated above, these are the periods of discrimination particularized by the General Counsel 62 In accordance with Board policy, earnings from extra employment in which Dufour and Mathews regularly engaged will not be considered in the computation 63 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 , recommendations , 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. 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD registrants with loss of employment opportunities or other reprisals if they engage or persist in activities which are critical of the conduct of union officers or officials or which are aimed at improving the Union's hiring hall procedures. (c) In like or related manner restraining or coercing members, employees, job applicants, or registrants in the exercise of the rightsguaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Make whole Freddy J. Dufour and John L. Mathews for any loss of earnings they may have suffered by reason of the discrimination against them, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify, in writing, Freddy J. Dufour and John L. Mathews that the Union's exclusive hiring hall facilities and job opportunities will be available to them on an equal and nondiscriminatory basis with other members, employees, job applicants, and registrants. (c) Maintain and, upon request, make available to the Board or its agents, for examination and copying, job registration and referral records and any other documents or records showingjob referrals and work assignments, and the basis for making such referrals and assignments, of members, employees, job applicants, and registrants, which are necessary to compute and analyze the amount of backpay due to Dufour and Mathews and their right to referral to jobs under the terms of this recommended Order. (d) Post at its business offices, hiring hall, and meeting places in New Orleans, Louisiana, copies of the attached notice marked "Appendix."64 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by the Respondent's authorized representative, shall be posted by the Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 15, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith 65 IT IS FURTHER ORDERED that the amended complaint be, and it hereby is, dismissed insofar as it alleges violations of Section 8(a)(I)(A) and (2) of the Act other than those found herein. 64 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 " 6s In the event that this recommended Order is adopted by the Board after exceptions have been filed , this provision shall be modified to read "Notify the Regional Director for Region 15, in writing , within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government To Members , Employees , Registrants , And All Other Job Applicants , Union or Nonunion , Using Our Exclusive Hiring Hall Facilities WE WILL NOT refuse to grant job referrals from our exclusive hiring hall facilities to Freddy J. Dufour or John L. Mathews or any other member , employee, job applicant , or registrant on an equal and nondiscrimina- tory basis, because of his protected union activities or criticism of the hiring hall procedures or his opposition to incumbent union officers. WE WILL NOT otherwise cause or attempt to cause employers to discriminate against members , employees, job applicants , or registrants in violation of Section 8(a)(3) of the Act. WE WILL NOT threaten members, employees, job applicants , or registrants with loss of employment opportunities or other reprisals if they engage or persist in activities which are critical of the conduct of union officers or officials or which are aimed at improving our hiring hall procedures. WE WILL NOT in any like related manner restrain or coerce members, employees , job applicants , or regris- trants in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL make whole Freddy J. Dufour and John L. Mathews for any loss of earnings they may have suffered by reason of the discrimination practiced against them. WE WILL notify, in writing , Freddy J. Dufour and John L Mathews that the Union's exclusive hiring hall facilities and job opportunities will be available to them on an equal and nondiscriminatory basis with other members , employees , job applicants , and registrants. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 406, AFL-CIO (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 compliance with its provisions may be directed to the Board's Office, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana 70113, Telephone 504-527-6361.