Operating Engineers, Local 370

National Labor Relations Board - Board Decisions

Jun 10, 1976

224 N.L.R.B. 641 (N.L.R.B. 1976)

OPERATING ENGINEERS , LOCAL 370
International Union of Operating Engineers, Local
No 370, AFL-CIO (Associated General Contrac-
tors of America, Inc., Inland Empire Chapter) and
Ernest Bailey. Case 19-CB-2340
June 10, 1976
SUPPLEMENTAL DECISION AND ORDER
By MEMBERS FANNING, PENELLO, AND WALTHER
On May 1, 1975, the National Labor Relations
Board issued an Order in the above-entitled proceed-
ing in which it, inter alia, adopted the findings, con-
clusions, and recommendations of Administrative
Law Judge Richard D Taplitz as contained in his
attached Decision of March 6, 1975, and ordered
that Respondent take the action set forth in the Ad-
ministrative Law Judge's recommended Order' The
Administrative Law Judge had concluded that Re-
spondent violated Section 8(b)(1)(A) and (2) of the
Act by refusing to refer Bailey to employment
through its exclusive hiring hall on and after May 24,
1974, because Bailey owed dues to a sister union,
Local 302, and ordeied that Respondent make Bailey
whole for any loss of earnings suffered on and after
May 24, 1974, by reason of Respondent's unlawful
refusal to refer him to work
Thereafter, on October 7, 1975, International
Union of Operating Engineers, Local 370, AFL-
CIO, Ernest Bailey, and the General Counsel of the
National Labor Relations Board entered into a stipu-
lation in lieu of backpay hearing in which they stipu-
lated and agreed to certain facts The parties agreed
that the stipulation should constitute the entire rec-
ord in this case Moreover, they waived a backpay
hearing before an Administrative Law Judge, the
making of findings of fact and conclusions of law by
an Administrative Law Judge, and issuance of an
Administrative Law Judge's Decision, and submitted
the case for findings of fact, conclusions of law, and
an appropriate order by the Board
On October 16, 1975, the Board issued an Order
Approving Stipulation and Transferring Proceeding
to the Board Thereafter, the General Counsel and
Respondent filed briefs
On March 31, 1976, in response to an informal
request by the National Labor Relations Board for
additional information, the parties entered into a
supplemental stipulation in lieu of backpay hearing
in which they agreed that the supplemental stipula-
i Order of May 1, 1975, not reported in volumes of the Board's Decisions
and Orders
641
tion plus the October 7, 1975, stipulation should con-
stitute the entire record in this matter
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has considered the entire record herein,
including the briefs, and makes the following find-
ings
Respondent discriminatorily refused to refer Bai-
ley for employment through its exclusive hiring hall
maintained pursuant to a collective-bargaining
agreement with Associated General Contractors of
America, Inc, Inland Empire Chapter 2 In accor-
dance with the agreement's referral procedure, appli-
cants' initial employment with a given contractor is
governed by their position on an out-of-work list 3
Under the recall or call-back provision of the AGC
agreement, however, persons are eligible to be re-
quested back for subsequent openings with a prior
employer "without regard to the requested man's
place on the out-of-work list " 4 "Request" dispatches
are at the discretion of an individual's prior employ-
er
Whether, for purposes of computing backpay due,
Bailey should be credited only with general dis-
patches given other individuals who bypassed him on
the out-of-work list, or whether he should also be
credited with subsequent "recall" or "call-back" dis-
patches these individuals received pursuant to the
contract's recall provision, is the sole issue to be de-
cided here Respondent has already forwarded to
Bailey the sum of $1,642 20, plus interest,' which the
parties agreed correctly represents earnings lost by
Bailey during the backpay period if Bailey is credited
only with general dispatches given other employees
who bypassed him on the out-of-work list General
Counsel, however, asserts that an additional
$8,250 88 in backpay is due, plus interest, a figure
which the parties agree is due Bailey if he is entitled
to the earnings of these other employees who were
recalled pursuant to the terms of the agreement be-
tween Respondent and the AGC
Contrary to the General Counsel's contention,
Respondent's brief, filed subsequent to the initial Oc-
tober 7, 1975, stipulation, asserts that only the gener-
2 Hereinafter referred to as AGC
3 The out-of-work list is divided into three groupings which are based on
an employees length of service with employers in the collective -bargaining
unit At the time of the unfair labor practices, Bailey was entitled to register
on the ` B out-of-work list but is now entitled to "A' list dispatch
4 Sec 5(F)(3) of the AGC agreement states
Requests by employers for a particular man previously employed by
the employer and who has been laid off or terminated by the employer
within three years previous to the request shall be honored without
regard to the requested man s place on the out-of-work list
5 Bailey was forwarded a total of $1,73649
224 NLRB No 94
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
al dispatch formula is appropriate and that, accord-
ingly, the sum of $1,642 20, plus interest, is the total
amount of backpay due Bailey Stressing that the
general dispatch plus "recall" formula is based on
speculation and uncertainty, Respondent argues that
an employee's recall pattern is based on the subjec-
tive whims of an employer and that there are no ob-
jective standards to indicate whether Bailey would
have been recalled to any job
From the March 31, 1976, supplemental stipula-
tion which was submitted after the parties' filing of
briefs,6 it now seems apparent that while Bailey
would not have received every "request" dispatch
obtained by employees who bypassed him on the
out-of-work list he would have received a consider-
able number In this vein, the record reflects that, at
all times material herein, Bailey has been listed on
Respondent's out-of-work list as a dozer/loader op-
erator There is no evidence that Bailey is not as well
qualified as other individuals dispatched during this
time period for dozer/loader jobs From September
1973 through March 1976,7 Bailey was initially dis-
patched to three separate employers Two of those
employers, or 67 percent, subsequently requested
Bailey's dispatch pursuant to the recall provision of
the AGC agreement S While the record regarding
Bailey's request dispatches is thus limited, it does
provide an objective basis for assessing his recall pat-
tern That Bailey would not have received 100 per-
cent, or perhaps even 67 9 percent of the "request"
dispatches of employees who bypassed him on the
out-of-work list does not support Respondent's claim
that Bailey is only entitled to a backpay figure based
upon a general dispatch formula For as we have of-
ten noted in backpay cases, we refuse to give Re-
spondent the benefit of uncertainties caused by its
own misconduct 10
Rather, in the circumstances, we conclude that
Bailey is entitled to credit for 67 percent of the "re-
quest" dispatches received by employees who by-
passed him on the out-of-work list In our view, this
figure, which is based upon the only evidence pro-
duced relative to Bailey's record of "request" dis-
patches, can best restore the situation as nearly as
possible to that which would have obtained but for
6 Although each party had an opportunity to file supplemental briefs
neither did so
7 While this is the period reflected in the record, the backpay period starts
from May 24, 1974
8 These statistics are gleaned from the supplemental stipulation
9It is noteworthy that for the period September 1973 through October
1975, Respondent issued 703 dispatches to individuals for dozer/loader
jobs 237 of these dispatches or 34 percent, were "request' dispatches pur-
suant to sec 5(F)(3), the recall provision of the AGC agreement
10 See e g , Controlled Alloy, Inc and Harlin Precision Sheet Metal Fabrica
Lion Co, Inc 208 NLRB 882 (1974), United Aircraft Corporation 204 NLRB
1068 (1973), Southern Household Products Company, Inc 203 NLRB 881
(1973)
Respondent's unlawful conduct Accordingly, we
shall order that Respondent make payment to Bailey
of an additional $5,500 58 in backpay, plus interest
to the date of payment
ORDER
Respondent , International Union of Operating
Engineers , Local No 370, AFL-CIO, its officers,
agents, and representatives , shall make Ernest Bailey
whole by payment of the additional sum of $5,500 58
in net backpay plus interest thereon accrued to the
date of payment at the rate of 6 percent per annum,
computed in the manner specified in Isis Plumbing &
Heating Co , 138 NLRB 716 (1962), minus any tax
withholdings required by Federal and state laws
DECISION
STATEMENT OF THE CASE
RICHARD D TAPLITZ, Administrative Law Judge This
case was heard at Spokane, Washington, on January 14,
1975 The charge was filed on October 15, 1974, by Ernest
Bailey, an individual The complaint issued on November
29, 1974, alleging that International Union of Operating
Engineers Local No 370, AFL-CIO, herein called Respon-
dent, violated Section 8(b)(1)(A) and (2) of the National
Labor Relations Act, as amended
Issue
The primary issue is whether Respondent (Local 370)
violated Section 8(b)(1)(A) and (2) of the Act by refusing
to refer Bailey for employment from its exclusive hiring
hall because Bailey was delinquent in dues to Local 302, a
sister union of the same international
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs A brief which
has been carefully considered, was filed on behalf of the
General Counsel
Upon the entire record of the case and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYER
At all times material herein, Respondent and the Associ-
ated General Contractors of America, Inc, Inland Empire
Chapter, herein called the Employer, have been parties to a
collective-bargaining agreement covering all persons em-
ployed as operating engineers performing highway, heavy
building, and engineering construction work by employer-
members of the Employer That contract contains an ex-
clusive hiring hall arrangement under which employees are
OPERATING ENGINEERS , LOCAL 370
referred from a hiring hall operated by Respondent The
complaint alleges that Bailey was unlawfully refused refer-
ral from that hiring hall
The Employer is a multiemployer association incorpo-
rated in the State of Washington, which exists, inter aha,
for the purpose of negotiating collective-bargaining agree-
ments with various labor organizations, including Respon-
dent, on behalf of its employer-members During the year
immediately preceding issuance of complaint, the employ-
er-members of the Employer, in their combined purchases,
caused to be transported and delivered to their places of
business, building materials and other goods valued in ex-
cess of $50,000, which were transported and delivered in
interstate commerce directly from States other than the
States in which said employer-members were located The
Employer is an employer within the meaning of Section
2(2) of the Act, and is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
Respondent and Local 302 are labor organizations with-
in the meaning of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A The Events
1 The background
Respondent's jurisdiction extends through part of the
State of Washington east of the Cascade Mountains and
into Idaho It has approximately 4,000 members and main-
tains its main office in Spokane, Washington As set forth
above, Respondent has contractual relations with the Em-
ployer I under which it maintains an exclusive hiring hall
Applicants for work within Respondent's jurisdiction must,
pursuant to the contract, be referred from Respondent's
hall The contract provides for class A, class B, and class C
priorities The first priority, class A, goes to operating engi-
neers who have been employed by an employer party to
the agreement who has worked for such employer for 500
hours during the preceding 2 years Class B status goes to
operating engineers who have engaged in such work be-
tween 200 and 500 hours during that time All other ap-
plicants are in the class C groups 2 Bailey has a class B
priority 3
1 The current contract is from June 1, 1974, to May 31 1977 The preced-
ing contract was from June 1, 1973 to May 31 1974
Although the contract provides for class B priority after 200 hours
Respondent's dispatcher, Glenn H Chnstilaw, testified that class B status is
granted after 250 hours
3 Respondent's records indicate that Bailey accrued 277 hours through
May 1974 However, his records were not corrected to show the class B
status until October 21, 1974 Arthur Hansen, Respondents field represen-
tative, credibly testified that the delay in the change of the records was
caused by the fact that some employers were late in reporting the hours
worked by employees The complaint alleges that Respondent discriminated
against Bailey in referrals since on or about May 24, 1974 The complaint
alleges and the answer admits that "At all times material herein, Bailey
maintained class B' List Applicant status' On the basis of the admission I
find that on and after May 24, 1974, Bailey did have class B status
643
Under the hiring hall procedure, when an applicant ap-
plies for work he fills out a registration form When an
employer needs employees, it calls the union hall and the
union dispatcher takes the work order The dispatcher
maintains an out-of-work book which is signed by the ap-
plicant for employment After examining the qualifications
set forth in the work order, the dispatcher goes down his
out-of-work list until he finds an applicant whose qualifica-
tions meet the needs of the employer and that applicant is
offered the job Those applicants who have been out of
work longest are on the top of the out-of-work list and are
given first opportunity for the job within their priority clas-
sification 4 The hiring hall rules provide that an applicant
must re-sign the out-of-work book every 30 days or his
name is deleted therefrom This rule is posted in the hiring
hall and Bailey admits that he was aware of it In practice
the 30-day deletion rule is not always closely followed At
times applicants are left on the list for many months, even
though they have not re-signed
Local 302 is the Operating Engineer Union with jurisdic-
tion in the Seattle, Washington, area It also maintains a
hiring hall within its jurisdiction
2 Bailey's efforts to secure employment
a The incidents before May 24, 1974
Until October 31, 1972, Bailey was a member of Local
302 in Seattle On that date he was suspended from mem-
bership for nonpayment of dues 5 However, even after the
suspension Local 302 continued to refer Bailey from its
hiring hall to some work
On April 20, 1973, Bailey went to Spokane and regis-
tered with Respondent's hiring hall At that time he spoke
to Respondent's business representative and dispatcher
Glenn H Chnstilaw Christilaw said that some of the dues
stamps were missing from Bailey's Local 302 membership
book Bailey replied that he was in arrears in dues
In the latter part of July 1973, Bailey moved to Spokane
in order to seek steady employment For some time he
continued to work on a job he had been referred to by
Local 302 and commuted to the Seattle area During the
week of March 13, 1974, Bailey went to Respondent's Spo-
kane hiring hall and spoke to the man behind the counter,
Jerry Greeley He told Greeley about his problems with
Local 302 and that as of September 1973, he owed Local
302 $179, but that the amount had grown to $420 The man
suggested that Bailey get in touch with Local 302 and ob-
tain an itemized statement However, Bailey was allowed
to register and sign the out-of-work book Respondent's
field representative, Arthur Hansen,6 was standing nearby
and overheard the conversation Hansen said that if Bailey
were in trouble with Local 302, he was also in trouble with
Respondent Greeley told Hansen that there were special
4 Class A applicants are sent out before class B , and class C applicants are
sent out last
5 The nonpayment came about after a dispute between Bailey and Local
302 concerning certain overtime problems and other matters not relevant
here
6It was stipulated and I find that Hansen is an agent of Respondent
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
circumstances Hansen did not interfere with Bailey's regis-
tration or his signing of the out-of-work book
The following Monday, March 18, 1974, Bailey went to
Local 302's hiring hall in Seattle and received an itemized
statement of dues and fees that he owed Local 302
On March 19, 1974, Bailey went to the Washington State
Department of Labor and spoke to Associate Chief Media-
tor Gene Miller Bailey told Miller that he was having
problems getting work and couldn't obtain a dispatch from
Spokane Miller had no jurisdiction over such matters, but
in order to be helpful he called the Union and told Hansen
he would appreciate anything Hansen could do for Bailey
Hansen told Miller to send Bailey over to see him
The following day, March 20, 1974, Bailey spoke to
Hansen at the union office Hansen said that he didn't
have any jobs available for Bailey and that he would get in
touch with Whitey Langberg (the business manager of Lo-
cal 302) in Seattle and see if he could work out something
for Bailey to pay back dues at Respondent, with Respon-
dent forwarding them to Local 302 Hansen also told Bai-
ley to come to the hiring hall every day and if Bailey was
sitting there he (Hansen) would send him out if a job came
in
On March 22, 1974, Hansen called Bailey on the phone
and said there was a job available for Bailey if he was
experienced operating a certain type of heavy equipment
Hensen told Bailey not to accept the job unless he was an
expert on that machine Bailey did not have the type of
experience needed so he declined the job
On March 25, 1974, Bailey went to the hiring hall and
again spoke to Hansen Hansen said that there were no
jobs at that time but that work would be coming in as the
weather improved Hansen gave Bailey the name of a com-
pany that did not have an exclusive hiring hall in its con-
tract and the names of some nonunion contractors and
suggested he go speak to them
Bailey was back at the hiring hall on March 28, 1974, at
which time he spoke to Respondent's business representa-
tive and dispatcher, Glenn H Christilaw Christilaw asked
Bailey why he had spoken to Miller and said that Miller
had no business with the Union Christilaw also said that
Respondent did not discriminate and if there was anything
that got his dander up it was somebody hollering discrimi-
nation Bailey responded that all he wanted was to go out
to work Christilaw said that he would send Bailey out if a
job came in
Respondent's records establish that Bailey was referred
from Respondent's hiring hall on four separate occasions
Based on a registration date of July 31, 1973, he was re-
ferred to a short job on August 9, 1973 He signed the
out-of-work list on August 14, 1973, and was referred to
another short job on August 16, 1973 He signed the list
again on August 22, 1973, but he was removed from the list
on December 11, 1973, because he had not re-signed within
30 days Although the hiring hall rules provide for removal
after 30 days, he was not removed for 3-1/2 months
Bailey reregistered and signed the out-of-work list again
on March 15, 1974 Thereafter, he had the conversations
with the union agents as set forth above He was referred to
a short job on April 15, 1974, and was back to sign the list
again at the hiring hall on April 19, 1974 He was referred
to work on August 22 and that job lasted about three
weeks When it was completed, he once again signed the
out-of-work list on May 16, 1974
b The incidents on May 24, 1974, and thereafter
About 9 a in on May 24, 1974, Bailey went to the dis-
patch window at Respondent's hiring hall and spoke to
Business Representative and Dispatcher Glenn H Christi-
law Christilaw said that he was not going to dispatch Bai-
ley again until Bailey had a paid up receipt from Local 302
Bailey replied that Hansen had told him that he (Hansen)
was going to try and get in touch with Whitey Langberg of
Local 302 and see if they could work out a payment sched-
ule Christilaw then said that neither Hansen nor anyone
else in Respondent was going to help Bailey with his prob-
lems with Local 302 7
On May 24, 1974, after talking to Christilaw, Bailey
made a number of phone calls He called Langberg of Lo-
cal 302 and discussed the problem with him He then
placed a call to the International Union in Washington,
D C, but was unable to speak to anyone He called Miller
from the State Labor Department who told him that there
was nothing he could do for him
At or about 2 p in that day, Bailey called Hansen Bai-
ley reported to Hansen that Christilaw had told Bailey that
Christilaw was not going to send Bailey out again until
Bailey had a paid-up card and that no one in Respondent
was going to help Bailey straighten out things with Local
302 8 Hansen suggested that Bailey talk to Respondent's
business manager, Bill Dunn
During the following 3 weeks, Bailey called Dunn six or
eight tunes, but was unable to reach him Finally about 3
weeks after his May 24 conversation with Hansen, Dunn's
secretary told Bailey that Dunn was out of town Bailey
replied that if Dunn did not call back when he came back
into town, Dunn would have to talk to his attorney Bailey
hung up and about 3 minutes later, Dunn called back and
asked what was this about being sued Bailey said that
Christilaw had told Bailey that Christilaw was not going to
send Bailey out again until Bailey had a paid-up receipt 9
7 These findings are based on the credited testimony of Bailey Christilaw
acknowledged in his testimony that he had a conversation with Bailey in the
spring of 1974 in which he asked Bailey if Bailey had cleared up his dues
problem with Local 302 According to Chnstilaw, Bailey said that he had
not Christilaw did not specifically deny that the conversation took place as
testified to by Bailey, but he did aver that he did not at any time refuse to
dispatch Bailey because of Bailey's failure to pay Local 302 dues I credit
Bailey's version of the conversation
8 Bailey also reported to Hansen That Bailey told Christilaw that Hansen
was working on Bailey's behalf trying to set up a repayment schedule with
Langberg, that Bailey called Langberg and Langberg told Bailey that Lang-
berg didn't make deals with anyone about payment on dues and that it all
had to be paid up before Bailey could be dispatched out of Local 302 or any
other local in the International, and that Langberg told Bailey that Christi-
law had called and said that Bailey had lied to Christilaw by saying Bailey
was a paid-up member, that Christilaw had dust found out Bailey was not
and that Bailey was not going to go out until Bailey paid up with 302
Hansen answered that Christilaw was a liar because everyone there knew
that Bailey was behind in his dues to Local 302 and that Hansen was trying
to help him get back on his feet
9 Bailey also told Dunn that Bailey was behind in his dues to Local 302,
but that he had to go to work to pay them, that Bailey had been dispatched
in the past, but that on May 24 Christilaw told Bailey that Bailey would not
OPERATING ENGINEERS, LOCAL 370
Dunn replied that Christilaw did not run the Union and
that he did Dunn also said that if Bailey 's name came up
on the list Bailey would go out Bailey then said "why
don't you call, tell Mr Chnstilaw this " Dunn then said
"you or no one else tells me what to do in this damn union,
son of a bitch sue me," and slammed the phone down
Bailey has not been sent out to work through the hiring
hall since his referral of April 22, 1974 That job lasted
about 3 weeks Respondent's records show that he signed
the out-of-work list on May 16, 1974, and that he was re-
moved from that list on August 30, 1974, for not signing in
under the 30-day rule He did not sign in again until Octo-
ber 22, 1974, when it was suggested to him by an agent of
the General Counsel that he do so He credibly testified
that even though he was aware of the 30-day rule, he did
not sign in between May 16 and October 22, 1974, because
he thought that in the light of his conversation with Christi-
law and Dunn , such a sign -m would be meaningless After
signing in on October 22, 1974, Bailey was removed from
the out-of-work list under the 30-day rule on November 26,
1974 He signed again on December 2, 1974, and January
2, 1975
Bailey has paid all dobie fees (fees for the use of the
hiring hall) that were required of him
B Analysis and Conclusions
An exclusive hiring hall giNes a great deal of authority
over the hiring process to a Union, but such authority is
not in itself violative of the Act 10 However, under such a
hiring hall system, a union cannot lawfully refuse to refer
an applicant because of union considerations unless that
refusal is based on a valid union-security clause 11 A union
may lawfully refuse to refer an applicant in a situation
where that union could, pursuant to a lawful union-securi-
ty clause, require immediate discharge of that employee for
failure to pay dues under a contract governing his employ-
ment," but the applicant cannot be required to pay back
dues for a period when dues were not validly required as a
condition of employment 13 Referral cannot lawfully be re-
fused because an applicant is not a member of or current in
his dues with a sister local of the same International as the
go out again until Bailey had a paid-up receipt, that Bailey called Whitey
Langberg and Langberg told Bailey that Bailey would have to be a paid-up
member before Bailey was dispatched , and that Langberg also told Bailey
that Christilaw had called Langberg and said that Bailey had lied to Christ]-
law in saying that Bailey was a paid up member of 302 and that Christilaw
was not going to dispatch Bailey again until Bailey was a paid -up member
10 Local 357, International Brotherhood of Teamsters, Chauffeurs Ware
housemen and Helpers of America [Los Angeles Seattle Motor Express] v
NLRB, 365 U S 667 (1961)
11 Seafarers International Union of North America, Atlantic, Gulf Lakes &
Inland Waters District, AFL-CIO (Isthmian Lines Inc) 202 NLRB 657,
enfd 496 F 2d 1363 (C A 5, 1974) In addition, referral may be conditioned
on the payment of a reasonable nondiscriminatory hiring hall fee Boston
Cement Masons and Asphalt Layers Union No 534 (Duran Maguire Eastern
Corp), 216 NLRB 568 (1975) However there is no such issue in this case as
Bailey paid all the dobie" fees required of him
i2 Mayfair Coat & Suit Co 140 NLRB 1333 (1963)
13 Cf Fishermen & Allied Workers' Union Local 33 International
Longshoremen's and Warehousemen s Union (S G Guiseppe Fishing Inc)
180 NLRB 851 (1970) enfd 448 F 2d 255 (C A 9 1971)
645
referring union 14 Where a union refuses to register or refer
an applicant because of improper union considerations, the
General Counsel need not prove that jobs were available at
the time of the request for referral 15
In the instant case , on May 24, 1974 , Respondent 's busi-
ness representative and dispatcher, Glenn H Christilaw,
told Bailey that Bailey would not be dispatched from the
hiring hall until he paid his back dues to Local 302 From
that time on Bailey was not dispatched from the hiring
hall Respondent operated an exclusive hiring hall and it
could not lawfully refuse to refer Bailey on the ground that
he was not current in his dues to a sister local Respondent,
through the testimony of Christilaw, contended that there
was no work available for Bailey to be sent to Such a
contention , however, is not a valid defense under the cases
cited above The amount of work (if any) that Bailey would
have secured by referral from the hall, if he had been sent
out without any consideration of his dues obligations to
Local 302, is a matter to be considered in determing the
amount of backpay due
Bailey was on the out-of-work list from May 16, 1974,
until August 30, 1974, when he was removed under the
30-day rule However, I find that Respondent's removal of
Bailey from the out-of-work list did not end Respondent's
continuing liability The same is true for the time he was
removed from the out-of-work list between November 26,
1974, and December 2, 1974 Christilaw had made it clear
to Bailey that Bailey would not be sent out of the hall and
the law does not require a wronged party to go through
meaningless acts as a condition for having the wrong
remedied In about mid-June 1974 , Respondent's Business
Manager Dunn told Bailey that, if Bailey's name came up
on the list, he would be sent out However, in the entire
context of that conversation, it was clear that Dunn had no
intention of reversing Christilaw's decision not to send Bai-
ley out When Bailey asked Dunn to call Christilaw, Dunn
answered, "you or no one else tells me what to do in this
damn union, son of a bitch, sue me," and slammed the
phone down Bailey reasonably assumed from Dunn's
words that Dunn was not going to help him
I find that, by refusing to refer Bailey to employment
through its exclusive hiring hall on and after May 24, 1974,
because Bailey was not current in his dues with Local 302,
Respondent violated Section 8(b)(1)(A) and (2) of the Act
14 Cf International Brotherhood of Electrical Workers, AFL-CIO, Local
648 (Foothill Electrical Corporation) 182 NLRB 66 (1970), enfd 440 F 2d
1184 (C A 6, 1971), international Brotherhood of Electrical Workers, AFL-
CIO Local 82 (National Electrical Contractors Association, Dayton, Ohio
Chapter), 182 NLRB 59 (1970), enfd 440 F 2d 1184 (CA 6, 1971)
t
Utility and Industrial Construction Company and Local 1076, Internation
al Laborers Union of North America AFL-CIO 214 NLRB 1053 (1974), and
cases cited therein In the Utility and Industrial Construction Company case
the Board held
The Administrative Law Judge reasoned that , because the Respon
dent Company never again requested any employees from the Respon-
dent Union s referral system, the violation was merely a theoretical one
and dismissed the allegations of the complaint in regard thereto This
conclusion must be rejected We have consistently held that to establish
a violation it is unnecessary to show that jobs were available at the
time of the request for referral The stated reason for the Union s refus-
al to register and refer was nonmembership Hence, we find that by
refusing to register and refer [the applicant], the Respondent
Union violated Section 8 (b)(1)(A) and 8(b)(2) of the Act
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent , as set forth in section III,
above, occurring in connection with the business opera-
tions of the Employer set forth in section I, above, have a
close , intimate , and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce
V THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(b)(1)(A)
and (2) of the Act , I shall recommend that it be ordered to
cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act
I shall also recommend that Respondent make Bailey
whole for any loss of earnings suffered on and after May
24, 1974 , by reason of Respondent 's unlawful refusal to
refer him to work The amount of backpay shall be com-
puted in accordance with the formula set forth in F W
Woolworth Company, 90 NLRB 289 (1950), with interest at
6 percent as provided in Isis Plumbing & Heating Co, 138
NLRB 716 (1962) It is recommended that Respondent be
ordered to make Bailey whole for any rights he would have
accrued from any employment relationship improperly
foreclosed him through Respondent 's unlawful conduct
and that Respondent credit Bailey with the hours he would
have worked but for the discrimination , in determining his
eligibility for class A status in the hiring hall referral sys-
tem
As the unlawful conduct of Respondent indicates a pur-
pose to limit the lawful rights of applicants for employ-
ment , and the danger of its continued further commission
is reasonably foreseen , I shall also recommend that Re-
spondent be ordered to cease and desist from operating its
exclusive hiring hall in such a manner as to cause or at-
tempt to cause any employer subject to the Board 's juris-
diction to deny employment to any employee or applicant
for employment because of lack of union membership or
payment of union dues, except to the extent permitted by
Section 8(a)(3) of the Act
It is recommended that Respondent be ordered to pre-
serve and , upon request , make available to the Board or its
agents , for examination and copying , all records pertaining
to employment through its hiring hall and all records rele-
vant and necessary for compliance with this recommended
Order
CONCLUSIONS OF LAW
1 The Employer and its member-employers are employ-
ers engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act
2 Respondent and Local 302 are labor organizations
within the meaning of Section 2 (5) of the Act
3 By refusing to refer Bailey to employment through its
exclusive hiring hall on and after May 24, 1974, because
Bailey owed dues to Local 302, Respondent violated Sec-
tion 8(b)(1)(A) and (2) of the Act
4 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act
Upon the foregoing findings of fact , conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended
ORDER 16
Respondent , International Union of Operating Engi-
neers Local No 370, AFL-CIO, its officers , agents, and
representatives, shall
I Cease and desist from
(a) Refusing to refer Ernest Bailey to employment
through its exclusive hiring hall because Bailey owes dues
to International Union of Operating Engineers Local No
302, AFL-CIO
(b) Operating its exclusive hiring hall in such a manner
as to cause or attempt to cause any employer subject to the
jurisdiction of the National Labor Relations Board to deny
employment to any employee or applicant for employment
because of lack of union membership or payment of union
dues, except to the extent permitted by Section 8(a)(3) of
the Act
(c) In any like or related manner restraining or coercing
employees in the excercise of rights guaranteed to them in
Section 7 of the Act
2 Take the following affirmative action necessary to ef-
fectuate the policies of the Act
(a) Make whole Ernest Bailey for any loss of pay or
other benefits he may have suffered as a result of its unlaw-
ful refusal to refer him to work , in the manner set forth in
the section of this Decision entitled "The Remedy "
(b) Preserve and, upon request , make available to the
Board or its agents , for examination and copying , all rec-
ords pertaining to employment through its hiring hall and
all records relevant and necessary for compliance with this
recommended Order
(c) Post at its business offices, hiring hall, and meeting
places, copies of the attached notice marked "Appen-
dix " 17 Copies of said notice on forms provided by the
Regional Director for Region 19, after being duly signed
by Respondent 's authorized representative , shall be posted
by Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter , in con-
spicuous places, including all places where notices to mem-
bers are customarily posted Reasonable steps shall be tak-
en by Respondent to insure that notices are not altered,
defaced , or covered by any other material
16 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions and Order, and all objections thereto shall be
deemed waived for all purposes
17 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
OPERATING ENGINEERS, LOCAL 370 647
(d) Notify the Regional Director for Region 19, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith
APPENDIX
NOTICE
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the Umted States Government
To all job applicants using our hiring hall, whether or not
members of International Union of Operating Engineers
Local No 370, AFL-CIO
WE WILL NOT refuse to refer Ernest Bailey to employ-
ment through our exclusive hiring hall because Bailey
owes dues to International Union of Operating Engi-
neers Local No 302, AFL-CIO
WE WILL NOT operate our exclusive hiring hall in
such a manner as to cause or attempt to cause any
employer subject to the jurisdiction of the National
Labor Relations Board to deny employment to any
employee or applicant for employment because of
lack of union membership or payment of union dues,
except to the extent permitted by Section 8(a)(3) of the
Act
WE WILL make Ernest Bailey whole for any loss of
pay or other benefits he may have suffered as a result
of our refusal to refer him to work
WE WILL NOT, in any similar manner, restrain or
coerce employees
INTERNATIONAL UNION OF OPERATING ENGINEERS
LOCAL No 370, AFL-CIO