Spector Freight Systems, Inc.

National Labor Relations Board - Board Decisions

Mar 11, 1980

248 N.L.R.B. 260 (N.L.R.B. 1980)

260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Highway and Local Motor Freight Employees, Local
Union No. 667, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (Spector
Freight System, Inc.) and Clyde Hudson. Case
6-CB-1480
March 11, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On September 27, 1979, Administrative Law
Judge Claude R. Wolfe issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief.
Respondent filed exceptions and a supporting brief,
and also filed a response to the General Counsel's
brief.
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 record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The Administrative Law Judge found that Re-
spondent operated a lawful, exclusive referral hall.
He found, however, that Respondent violated Sec-
tion 8(b)(1)(A) and (2) of the Act by requiring, as a
condition of registration and referral for employ-
ment from its exclusive hiring hall, the payment of
a referral fee in excess of costs attributable to the
services rendered. Accordingly, he ordered Re-
spondent to reimburse registrants for those sums
which were found to be unrelated to the expenses
of operating the hall. The General Counsel has ex-
cepted to the Administrative Law Judge's conclu-
sion that Respondent operated a lawful exclusive
referral hall, claiming that Respondent provided no
referral service for which it could charge a fee,
and has asked the Board to declare the referral hall
unlawful and to order Respondent to refund each
registrant employee the entire amount of the refer-
ral fee paid. We find merit in the General Coun-
sel's exception, as we find that, under the circum-
stances of this case, Respondent did not operate a
bona fide referral hall.
The record reveals, as set forth in greater detail
in the Administrative Law Judge's Decision, that
since the early 1970's the collective-bargaining
agreement between Respondent and Memphis area
trucking companies contained language providing
248 NLRB No. 35
for the operation of an exclusive referral hall.'
However, prior to 1978, Respondent did not en-
force this portion of the agreement, and most of
the casual employees hired by signatory employers
were hired directly by those employers, without
recourse to the referral service.
On January 8, 1978,2 Johnny Raney took office
as president of Respondent. Upon assuming office,
Raney determined that Respondent should enforce
the referral hall provisions of the agreement, be-
cause, in his view, "[w]e felt like under the con-
tract that these people were getting benefits from
the contract. It takes money to negotiate a con-
tract, it takes time and effort for making some of
the money for these people and we didn't feel like
we could stay in business if we didn't get some-
thing out of it."
In July, Raney called a meeting of all signatory
employers, at which he announced that Respon-
dent would henceforth enforce the contract provi-
sion relating to the operation of an exclusive hiring
' Art. 41, sec. 6, of the National Master Freight Agreement provides
as follows:
1. Local Unions shall be the sole and exclusive source of referrals
of applicants for employment, except as herein provided.
2. The Employer shall notify the appropriate Local Union of his
need for employees (casual, temporary, or regular) at least twenty-
four (24) hours in advance of the job. This notice shall not be re-
quired when the need of the Employer is to replace an absent regu-
lar employee or in an emergency. In requesting referrals, the Em-
ployer shall specify to the Local Union the number of employees re-
quired, the location of the job, the nature and type of work to be
performed and such other information as is deemed essential in order
to enable the Local Union to make proper referral of applicants.
3. The Employer shall not recruit or hire applicants not referred
by the Local Union. However, if the Local Union is unable to refer
applicants for employment to the Employer withiri twenty-four (24)
hours from the time of receiving the Employer's request, Saturdays,
Sundays, and holidays excepted, or within two (2) hours if replacing
an absent employee the Employer shall be free to secure applicants
without using the referral procedure, but such applicants, if hired,
shall have the status of "temporary employee" The Employer shall
notify the Local Union promptly of the names and social security
numbers of such temporary employees, and shall replace such tem-
porary employees as soon as registered applicants for employment
are available under the referral procedure
4. The Local Union shall maintain a register of applicants for em-
ployment established on the basis of the time of registration.
5. The Local Union shall refer applicants to the Employer in order
of time and date of their registration, provided the Local Union shall
not refer an applicant previously discharged or disqualified by the
Employer requesting a referral.
6. When a request is made by the Employer for employees, the
applicant next entitled to a referral shall be notified by the Local
Union at the Hiring Hall or by telephone If an applicant refuses a
referral or cannot be readily reached in the foregoing manner, his
name shall be removed from the register to re-register for additional
employment.
7. Registration and selection of applicants for referral to jobs shall
be on a nondiscriminatory basis and shall in no way be affected by
Union membership bylaws, rules, regulations, constitutional provi-
sions, or any other aspect or obligation of Union membership poli-
cies or requirements. The parties hereto agree that a copy of this
Agreement shall be posted at the Union Hall and the terminal of the
Employer.
8. When hiring hall is closed, vacancy caused by absenteeism may
be filled with casuals without referrals.
2 Unless otherwise noted, all dates hereinafter are in 1978.
TEAMSTERS LOCAL UNION NO. 667 261
hall. The monthly referral fee for casual employees
was set at $15. 3 Raney announced that employers
could continue to use the casual employees em-
ployed at that time, and requested that employers
instruct those employees to report to the referral
hall to pay the referral fee and obtain monthly re-
ferral cards.
Respondent assigned a clerical employee, Debra
Wade, to handle referral duties at the referral hall.
Wade maintained two sets of referral records. For
those casual employees who worked part-time for a
specific employer on a regular basis, Respondent
maintained individual cards bearing the name of
the employee and the employer. As the employee
paid the referral fee, Wade filed the completed
card in a file box divided by employer. For appli-
cants not regularly employed by a specific employ-
er, Respondent maintained a "miscellaneous list"
limited to 50 names. Applicants were informed that
it was a list of part-time employees to be utilized
for all terminals. Respondent advised the "miscella-
neous" employees that although they did not have
to pay the referral fee to work, they did have to
pay the fee to get on the list and to remain on it.
Once a casual employee on the first list paid his
monthly referral fee, Respondent provided no addi-
tional referral services on his behalf. Employers di-
rectly contacted those employees, as needed, for
part-time casual work. If an employer was unable
to obtain sufficient casual manpower from its regu-
lar casual employee complement, the employer
could contact the referral hall for additional casual
employees; however, the record indicates that em-
ployers infrequently sought casual employees by
contacting the referral hall, and relatively few re-
ferrals were made from the miscellaneous list. Oc-
casionally, in response to the requests of persons
seeking casual employment, Respondent would
suggest various employers in the area who, they
believed, might need additional casual manpower. 4
Respondent maintained no other records with
regard to operation of the referral hall.
3 Respondent set the monthly referral fee at St less than the amount of
monthly dues paid by union members, which at the time the referral
system was established was 16. In setting the referral fee in this manner,
Respondent relied on the Board's decision in Local 825, International
Union of Operating Engineers. AFL-CIO (H. John Homan Company), 137
NLRB 1043 (1962), in which the Board approved a hiring hall fee
pegged at SI below the union's monthly dues. Union members were not
required to pay a referral fee.
For example, the Charging Party, Clyde Hudson, sought part-time
employment off the miscellaneous list after his regular employer, Spector
Freight System, Inc., refused to employ him. The record contains uncon-
troverted evidence that Hudson paid his referral fee to Respondent, but
was never called by Respondent for referrals. In an effort to find employ-
ment, Hudson went to the union hall and met with Maurice Smith, a
business agent and vice president of Respondent Smith gave Hudson the
names of four or five other employers in the area, and suggested that he
go around to those trucklines to see if they had any work. Hudson did
not obtain employment throught this method.
In September, Respondent raised its monthly
membership dues by $2 and consequently raised its
monthly referral fee to $17 per month. Respondent
presented no evidence that the expenses of adminis-
tering the referral hall had increased so as to justify
an increase in the referral fee, but rather continued
to set the fee at $1 below the monthly dues paid by
union members. In December 1978 or January
1979, Wade prepared the miscellaneous list as
usual. However, contrary to past practice, she sent
the list directly to each signatory employer. From
the time Respondent mailed the miscellaneous list
to signatory employers, the referral hall received
no further calls for referrals, as employers made
their contacts directly with those on the list. On
February 22, 1979, Hudson filed the original
charge in this proceeding. In March 1979, Respon-
dent terminated operation of its referral hall.
Upon these facts, the Administrative Law Judge
found that the referral system set forth in the col-
lective-bargaining agreement was an exclusive
hiring arrangement which was not per se unlawful
and that those who paid the referral fee received
the same services from the referral system that
such systems customarily provide. The Administra-
tive Law Judge also found that the referral fees
were not imposed in a discriminatory manner, nor
was the system operated in any manner which con-
travened the Act. He found, however, that the re-
ferral fee charged by Respondent was excessive in
two respects: (1) the expenses upon which the fee
was ostensibly based 5 included $4.15 of each
monthly fee remitted as per capita taxes to various
International Brotherhood of Teamsters governing
bodies, as required by the Teamsters International
constitution, 6 which payments were not properly
attributable to the costs of providing referral ser-
vices; and (2) Respondent raised the referral fee by
$2 per month, coincident with an increase in union
dues, without providing any evidence of increased
expenses in operating the referral hall to justify the
increased fee. Accordingly, the Administrative
Law Judge ordered Respondent to reimburse those
casual employees who paid the referral fee on or
after August 22, 1978, 7 for these overcharges.
We conclude, contrary to the Administrative
Law Judge, that Respondent did not operate a
5 Raney testified that he did not know what expenses were used to jus-
tify the amount of the fee, but in a letter to the General Counsel from 1.
V. Pellicciotti, secretary-treasurer of Local 667, Respondent indicated the
items which were considered to comprised the administrative expenses of
the referral hall.
I The per capita taxes consisted of: $3.15 remitted to the International
Union, 75 cents to the Southern Conference, and 25 cents to Joint Coun-
cil No. 87.
7 The Administrative Law Judge held that he was precluded by Sec.
10(b) of the Act from requiring reimbursement of fees paid more than 6
months prior to the filing the original charge in this matter.
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bona fide referral system for which casual employ-
ees should have been required to pay any referral
fees. Such arrangements are characterized by an
agreement between the parties for the employer to
notify the union as jobs become available in the rel-
evant classifications, and for the union to send the
employer sufficient manpower for the employer to
fulfill his employment requirements. 8
In the instant case, the agreement between the
parties provided for a conventional exclusive refer-
ral hall, with employers notifying Respondent of its
need for casual employees and Respondent refer-
ring applicants to the employer in order of the time
and date of their registration, without regard to
their membership in the union.9 In practice, how-
ever, Respondent did not conduct even the sem-
blance of a bona fide hiring hall. Those employees
who were regularly employed by a specific em-
ployer were not contacted by Respondent when
their employer had vacancies; rather, the employer
contacted the desired employees directly. Yet they
were still required to pay the referral fee. Those
applicants who did not desire to work for a single
employer were placed on the "miscellaneous list,"
and were theoretically referred upon employers'
requests; however, Respondent provided no evi-
dence that any employees were in fact referred in
this manner. In fact, Respondent failed to keep any
written records pertaining to the operation of the
referral hall, except a list of those who paid the
fee.' o
Moreover, in January 1979, Respondent pre-
pared a written roster of those on the "miscella-
neous list" and sent it to each signatory employer.
Thereafter, every casual employee hired by signa-
tory employers between January and March 1979,
as well as all casual employees hired between July
and December 1978 who expressed to Respondent
8 In Mountain Pacific Chapter of the Associated General Contractors,
Inc., et al., 119 NLRB 883 (1957), remanded 270 F.2d 425 (9th Cir. 1959),
modified 127 NLRB 1393 (1960), enfd. as further modified 306 F.2d 34
(9th Cir. 1962), we stated:
It was to eliminate wasteful, time-consuming, and repetitive scouting
for jobs by individual workmen and haphazard uneconomical search-
es by employers that the union hiring hall as an institution came into
being. It has operated as a crossroads where the pool of employees
converges in search of employment and the various employers' needs
meet that confluence of job applicants.[l 19 NLRB at 896, fn. 8.]
See also NL.R.B. v. National Maritime Union of America (CIO) [The
Texas Company], 175 F.2d 686, 689-690 (2d Cir. 1949), cert. denied 338
U.S. 954 (1950).
a See fn. 1, supra.
'" The record lacks any evidence that Respondent kept records of
when applicants on the miscellaneous list paid their referral fees, when
employers contacted the hall for referrals, which applicants were referred
to which employers, and whether an applicant so referred was hired by
the requesting employer. The lack of such documentation by Respondent
lends support to the conclusion that Respondent did not operate an ex-
clusive referral hall as that term is normally understood. See Local 394.
Laborers' International Union of North America. AFL-CIO (Building Con-
tractors' Association of New Jersey), 247 NLRB No. 5 (1980).
a desire to work on an "as needed" basis for a spe-
cific employer, was contacted by the employer di-
rectly, rather than through the referral system,
even though Respondent required those employees
to pay a referral fee.
We conclude, therefore, that Respondent's pur-
pose, as expressed by its president, was to "get
something out of' the negotiating efforts made on
behalf of casual employees. While Respondent
did "get something out of" its establishment of the
referral hall-referral fees-it rendered no services
in return. Thus we agree with the General Coun-
sel's contention that no fee is reasonable because
Respondent operated no referral hall and per-
formed no service warranting any fee. Where, as
here, Respondent charges and collects a referral fee
from employees "who did not gain employment
through the referral system of, or through any ef-
forts extended by, Respondent"' 2 we cannot con-
sider any payments made thereby to be lawful
under the Act. Accordingly, we hereby order that
Respondent reimburse each applicant or employee,
who has made referral fee payments pursuant to
this system within the 10(b) period,' s the full
amount of their payment.
CONCLUSIONS OF LAW
1. Spector Freight System, Inc., is an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Highway and Local Motor Freight Employ-
ees, Local Union No. 667, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, War-
ehousemen and Helpers of America, is a labor or-
ganization within the meaning of Section 2(5) of
the Act.
3. By requiring employees, as a condition of reg-
istration and referral for employment with Spector
Freight System, Inc., and other signatory employ-
ers of the collective-bargaining agreement between
those employers and Respondent, to pay a referral
fee where Respondent has failed to provide any re-
ferral services, Respondent violated Section
8(b)(1)(A) and (2) of the Act.
'' It is worth noting, in this regard, that Respondent admitted setting
the referral fee at a dollar less than union dues without regard to, and
without attempting to estimate, the costs of operating the hiring hall. See
fn. 3, supra. Likewise, when Respondent raised union dues from $16 to
$18 it automatically raised the referral fee by the same 2 amount.
12 Detroit Mailers Union No. 40, International Typographical Union.
AFL-CIO (Detroit Newspaper Publishers Association), 192 NLRB 951, 952
(1971).
la Sec. 10(b) of the Act limits Respondent's liability to a period begin-
ning 6 months from the filing and service of the original charge. See
Union Taxi Corporation, 130 NLRB 814 (1961); American Advertising Dis-
tributors, 129 NLRB 640 (1960). As the Charging Party filed the initial
charge in this matter on February 22, 1979, the 10(b) period runs from
August 22, 1978.
TEAMSTERS LOCAL UNION NO. 667 203
4. The aforesaid unfair labor practice is an unfair
labor practice affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
In addition to ordering that Respondent cease
and desist from the unfair labor practice found
herein and that it post the customary notice to
members and employees, we shall further order
that Respondent refund all referral fees paid pursu-
ant to the referral system on or after August 22,
1978, with interest thereon to be computed in the
manner prescribed in Florida Steel Corporation. 4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Highway and
Local Motor Freight Employees, Local Union No.
667, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, its officers, agents, and representatives,
shall:
1. Cease and desist from:
(a) Requiring, as a condition of registration refer-
ral for employment, the payment of a referral fee
where Respondent has provided no referral ser-
vice.
(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Reimburse registrant employees for any
amount paid for referral pursuant to this referral
system, on or after August 22, 1978. Such reim-
bursement shall be computed in the manner set
forth in the section of this Decision entitled "The
Remedy."
(b) Post at its business offices and meeting halls
copies of the attached notice marked "Appen-
dix."'5 Copies of said notice, on forms provided by
the Regional Director for Region 26, after being
duly signed by an official representative, of Re-
spondent shall be posted by Respondent immediate-
ly upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous
places, including all places where notices to mem-
14 231 NLRB 651 (1977) See, generally, Isis Plumbing d Heating Co.,
138 NLRB 716 (1962).
is In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
bers are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other
material.
(c) Furnish to the Regional Director for Region
26 sufficient signed copies of the attached notice
for posting, the employers signatory to its collec-
tive-bargaining agreement noted herein willing, in
conspicuous places, including all places where no-
tices to employees are customarily posted. Copies
of said notice, to be furnished by the Regional Di-
rector for Region 26, after being duly signed by
Respondent as indicated, shall be forthwith re-
turned to the Regional Director for disposition by
him.
(d) Notify the Regional Director for Region 26,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present their evidence, the National Labor
Relations Board has found that we violated the Na-
tional Labor Relations Act, and has ordered us to
post this notice. We intend to carry out the Order
of the Board.
WE WILL NOT require, as a condition of reg-
istration and referral for employment from our
referral hall, the payment of a referral fee in
excess of the costs attributable to employment
services rendered.
WE WILL NOT in any like or related manner
restrain or coerce you in the exercise of rights
guaranteed under Section 7 of the National
Labor Relations Act.
Since it was decided that we violated the
Act by requiring the payment of a referral fee
where we provided no referral services, WE
WILL reimburse any registrant employee for
amounts paid for referral fees pursuant to this
referral system on or after August 22, 1978,
plus interest.
HIGHWAY AND LOCAL MOTOR
FREIGHT EMPLOYEES, LOCAL UNION
NO. 667, AFFILIATED WITH INTERNA-
TIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS, WAREHOUSE-
MEN AND HELPERS OF AMERICA
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge: This
case was heard before me at Memphis, Tennessee, on
July 2 and 3, 1979, pursuant to charges and amended
charges filed on February 22 and March 15, 1979, and
complaint issued on March 22, 1979. The complaint al-
leges violations of Section 8(b)(1)(A) and (2); and recites
in relevant part:
8.
(a) Certain employer parties to the collective bar-
gaining agreement described above in paragraph 7,
including the Employer herein, have, since August
1978, hired casual employees directly rather than
obtaining the employees through the Union's refer-
ral system.
(b) Since on or about August 22, 1978, the Union
has required employees hired, as described above in
paragraph 8(a), to pay a monthly referral fee.
9.
(a) The Union maintains a list of all casual em-
ployees who seek employment by certain of the em-
ployer parties to the collective bargaining agree-
ment described above in paragraph 7.
(b) Since on or about August 22, 1978, the Union
has charged the casual employees on the list de-
scribed above in paragraph 9(a) a monthly referral
fee as a condition of referral or continued referral.
12.
The referral fee referred to above in paragraphs
8(b) and 9(b) is excessive in that it is not reasonably
related to the cost of providing the referral service.
Respondent moves to dismiss paragraph 12 because it
is not specifically alleged, as 8(b) and 9(b) are, in para-
graphs 13 or 14 of the complaint as violative of the Act.
Paragraph 12, on its face, supplements and explains alle-
gations in paragraphs 8(b) and 9(b). The General Counsel
made it clear at the hearing that the imposition of an ex-
cessive and unreasonable fee is the theory of the com-
plaint, and this issue was fully litigated by both parties.
Moreover, paragraph 12 is an allegation necessary to the
pleading of a cause of action in this proceeding. Ac-
cordingly, the motion to dismiss is denied.
Respondent denies the commission of unfair labor
practices.
After careful consideration of the entire record, the
demeanor of the witnesses testifying before me, and the
parties' post-trial briefs, I make the following:
Boston Cement Masons and Asphalt Layers Union No. 534. etc. (Duron
Maguire Eastern Corp.), 568 (1975), reaffirmed 235 NLRB 826 (1978).
FINDINGS AND CONCLUSIONS
1. JURISDICTION
Spector Freight System, Inc., herein called the Em-
ployer, is a corporation doing business in the State of
Tennessee with an office and place of business located in
Memphis, Tennessee, where it is engaged in the hauling
of freight. During the 12 months preceding the issuance
of the complaint, the Employer received in excess of
$50,000 for the transportation of goods which originated
outside the State of Tennessee, or which were designated
for delivery to points located outside the State of Ten-
nessee. During the same period of time, the Employer
purchased and received at its Memphis, Tennessee, loca-
tion, goods valued in excess of $50,000 directly from
points located outside the State of Tennessee. The Em-
ployer is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
Highway and Local Motor Freight Employees, Local
Union No. 667, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, 2 herein called the Union, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE REFERRAL SYSTEM
A. Fact Findings
The Respondent, the Employer, and various other
Memphis area trucking companies are parties to a Na-
tional Master Freight Agreement covering over-the-road
and local cartage employees which provides, in pertinent
part, for a referral hall, as follows:
ARTICLE 41
Section 6.
1. Local Unions shall be the sole and exclusive
source of referrals of applicants for employment,
except as herein provided.
2. The Employer shall notify the appropriate
Local Union of his need for employees (casual, tem-
porary, or regular) at least twenty-four (24) hours in
advance of the job. This notice shall not be required
when the need of the Employer is to replace an
absent regular employee or in an emergency. In re-
questing referrals, the Employer shall specify to the
Local Union the number of employees required, the
location of the job, the nature and type of work to
be performed and such other information as is
deemed essential in order to enable the Local Union
to make proper referral of applicants.
3. The Employer shall not recruit or hire appli-
cants not referred by the Local Union. However, if
the Local Union is unable to refer applicants for
employment to the Employer within twenty-four
(24) hours from the time of receiving the Employ-
2 The name of the Respondent appears as amended at the hearing.
TEAMSTERS LOCAL UNION NO. 667 265
er's request, Saturdays, Sundays, and holidays ex-
cepted, or within two (2) hours if replacing an
absent employee the Employer shall be free to
secure applicants without using the referral proce-
dure, but such applicants, if hired, shall have the
status of "temporary employee." The Employer
shall notify the Local Union promptly of the names
and social security numbers of such temporary em-
ployees, and shall replace such temporary employ-
ees as soon as registered applicants for employment
are available under the referral procedure.
4. The Local Union shall maintain a register of
applicants for employment established on the basis
of the time of registration.
5. The Local Union shall refer applicants to the
Employer in order of time and date of their regis-
tration, provided the Local Union shall not refer an
applicant previously discharged or disqualified by
the Employer requesting a referral.
6. When a request is made by the Employer for
employees, the applicant next entitled to a referral
shall be notified by the Local Union at the Hiring
Hall or by telephone. If an applicant refuses a refer-
ral or cannot be readily reached in the foregoing
manner, his name shall be removed from the regis-
ter to re-register for additional employment.
7. Registration and selection of applicants for re-
ferral to jobs shall be on a non-discriminatory basis
and shall in no way be affected by Union member-
ship, by-laws, rules, regulations, constitutional pro-
visions, or any other aspect or obligation of Union
membership policies or requirements. The parties
hereto agree that a copy of this Agreement shall be
posted at the Union Hall and the terminal of the
Employer.
8. When hiring hall is closed, vacancy caused by
absenteeism may be filled with casuals without re-
ferrals.
There is no contention that the contract is illegal or
discriminatory within the meaning of the Act.
The Respondent had not operated such a referral hall
or enforced this contractual provision for several years
prior to 1978, and most of the casual employees hired by
the contracting employers in the Respondent's area were
hired directly by the employers, primarily by recalling
casuals previously employed, without recourse to any
union facility or referral.3 Prior to July 1978, casuals
paid no referral fee to the Respondent.
Johnny Raney took office as president of the Respon-
dent on January 8, 1978. According to Raney, he decid-
ed to enforce the referral hall provisions of the contract
because, "We felt like under the contract that these
people were getting benefits from the contract. It takes
money to negotiate a contract, it is time and effort for
making some of the money for these people and we
3 It appears from the testimony of Donald Whicker, terminal manager
for McLean Trucking, that about 50 percent of the casuals working for
that company prior to July 1978 had been referred at one time or another
by individual union agents. According to Union President Raney, howev-
er, employers had been hiring casuals off the street and only occasionally
called the hall for men.
didn't feel like we could stay in business if we didn't get
something out of it."
The referral hall was operated by the Union from July
1978 to March 1979. Sometime before its July start, the
Respondent sought legal advice and, after some discus-
sion, set the monthly referral fee at $15. Regular union
dues were $16, and union members were not required to
pay a referral fee.4 I credit the testimony of J. V. Pellic-
cotti, Respondent's secretary and treasurer, that the Re-
spondent had no idea of what the costs of the referral
hall would be when it set the $15 figure,5 and that, as he
aptly put it, "It was more of a shot in the dark." I find,
as Raney testified, that the referral fee was set at a dollar
less than union dues on the basis of legal authority to
the effect that a fee which was a dollar less than dues
was lawful.
Raney called a meeting with employers' party to the
contract in July 1978, and told them that the Respondent
was going to enforce the contractual hiring procedures.
He advised that the Union was going to refer through its
hall, and that employers could keep using the casuals
they had used in the past but he preferred that these ca-
suals belong to the referral hall. He requested and re-
ceived lists of casuals working as of July 1978. Raney
further advised that monthly referral cards would be
issued to employees who paid the fee at the hall. He
asked the employers to announce the new policy to em-
ployees, and later told the Respondent's job stewards
that article 41, section 6, of the contract was to be en-
forced. He states that he "probably" told the stewards to
so inform the employees. The record reflects that Raney
was evasive at times, and his demeanor was not convinc-
ing. I conclude that he did instruct the stewards to so
inform employees.
Respondent's vice president, Maurice Smith, credibly
averred that the Respondent asked employers to inform
the casuals working for them that they should go to the
hall and get a referral card. Smith also conceded that the
Respondent investigated occasional reports that certain
casuals were not "a member of the referral."
Within a week or so after meeting with Raney,
Whicker posted a notice to employees at McLean Truck-
ing that article 41, section 6, would be enforced. Wheth-
er or not other employers did the same is not in evi-
dence.
The Respondent assigned clerical employee Debra
Wade, an impressive and credible witness, to handle re-
ferral duties at the union hall. She worked full time, with
some minor deviations, on referral until about the first of
January 1979, after which she devoted from 40 to 50
percent of her worktime to other office work. Wade
maintained two sets of referral records. One, pertaining
4The referral fee was increased to 17 and union dues to 18 in Octo-
ber 1978.
s Raney concedes that the fee was an estimate and no mathematical
computations were made.
8 Respondent's counsel, in opening argument, referred to such a prece-
dent and, in his brief, cited Local 825, International Union of Operating
Engineers. AFL-CIO (H. John Homan Company). 137 NLRB 1043 (1962),
as authority for the reasonableness of a fee Si less than dues. I conclude
this case is the precedent on which the Respondent relied in setting the
fee.
I Whicker estimates 40 people were present.
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to employees who were working part-time for a specific
employer on a regular basis, consisted of individual filing
cards bearing the name of the employee and the employ-
er. To get on this record an employee would appear at
the hall and tell her which company had told him that
he could go to work. The card was then completed, the
employee paid the $15 fee, and Ward would issue a re-
ferral card and a receipt. At the beginning of her referral
duties, Wade used lists of working employees furnished
by their employers,8 and employees on these lists would
come to the hall and secure their referrals. I am persuad-
ed that they, in accordance with the procedure described
by Wade, paid the fee at that time.9
Wade also maintained a miscellaneous list limited to 50
names for applicants not regularly employed by a specif-
ic employer. Wade told those who wished to get on this
list that it was a list of part-time employees to be utilized
for all terminals. She advised them of the amount of the
fee, that they did not have to pay it to work, but they
did have to pay it in order to get on the list. She also
told employees who wished to get on either list that they
would have to pay the fee each month in order to
remain on the list. I do not credit Raney's assertion that
he told Wade to place employees' names on the list
whether they paid or not. '
Secretary-Treasurer Pelliccotti seemed to be an honest
witness, but his testimony that the Respondent posted a
sign at the referral hall window, to the effect the fee was
voluntary, suffers in probative weight by virtue of the
Respondent's failure to produce that sign, which is pa-
tently the best evidence of its contents. Pelliccotti's claim
is further eroded by Clyde Hudson's credible testimony
that he saw no such sign on the window. Accordingly, I
shall accord no weight to Pelliccotti's testimony about
the alleged sign.
Clyde Hudson, the sole employee witness, gave uncon-
troverted testimony that the terminal manager for Spec-
I conclude these were the lists requested and received by Raney ear-
lier.
Union members who got on this miscellaneous list were not required
to pay the fee because they paid regular dues.
'0 In addition to my general observation that Raney did not impress
me as a frank and forthright witness, his evasiveness and testimonial in-
consistency on this subject were obvious:
Q. From Ms. Wade's testimony-Well I will put it like this The
actual operation, at least to say, of the miscellaneous list up to fifty
names; if the employee did not pay a fee, he did not get his name on
that list, did he?
A. Why don't you ask Ms. Wade?
Q. If the employee did not continue to pay a fee, his name did not
stay on that list?
A. If he didn't come back over there, well, we had no reason to
put his name back.
Q. But, your instructions to Ms. Wade, though, was that employ-
ees names were not to be kept off the list, whether they paid the
referral fee or not.
MR. PAUI: That is not what he said. He said it was not a condi-
tion of employment.
JUDGE WOLFE: Well, did you give any such instruction to Ms.
Wade?
THE WITNESS: What did you ask me, again?
MR. FORD: Did you instruct Ms. Wade that employees could be
placed on a referral list whether they paid the fee or not?
THE WITNESS: Certainly.
Q. (By Mr. Ford) You did?
A. Yes.
tor Freight System, Inc., where Hudson had previously
worked as a casual employee, told him in July 1978 that
he could no longer work for Spector until he got a refer-
ral card. Hudson went to the union hall, paid the $15 fee
for August," had a file card filled out by Wade for
Spector, and received a referral card. He thereafter
worked 16 hours for Spector during the week ending
August 20, and 14 the week ending September 3. Hudson
never asked to be placed on any list other than the Spec-
tor card, and, after he was no longer working for the
Spector, Smith gave him names of other employees to
approach for work as sent to by Smith. That Hudson
was not hired is irrelevant.
I am persuaded that Hudson was confused when he
testified that Smith told him he had to pay $15 to get on
the list, and that it was Wade who told him that. I credit
his testimony that he was not informed that he did not
have to pay the fee to work.
B. Conclusions
Article 41, section 6, of the collective-bargaining
agreement sets forth, with replete detail, an exclusive
hiring arrangement which is not per se unlawful or al-
leged to be unlawful under the Act.
The record evidence establishes that the Respondent
told employers that this contract provision would be en-
forced, told them and its job stewards to so notify em-
ployees, procured lists of currently employed casuals
from their employers, utilized these lists to check off em-
ployed casuals registering and paying a referral fee at the
union hall, and required all registrants to pay the fee to
get on a referral list. Accordingly, I conclude that casual
employees were required by the provisions of article 41,
section 6, and the system set up to implement those pro-
visions, to pay the fee as a condition of using the Re-
spondent's referral services. 2 When referred they had
the status of applicants and could be rejected as employ-
ees by the Employer.' "It is well established that a rea-
sonable [referral] fee may be imposed upon applicants for
referral as long as such fees are imposed in a nondiscri-
minatory manner." Boston Cement Masons, supra. There
is no allegation nor any evidentiary showing that the fees
were imposed in a discriminatory manner, or that the re-
ferral system was operated in any manner in contraven-
tion of the Act.
The only issue in this case is whether or not the fee
imposed was unreasonable in amount. There can be no
real question at this late date, after many years of Board
Decisions on the topic, of the settled proposition that
such fees must be reasonably related to the value of ser-
vices rendered, and any payment required beyond this as
a condition of referral violates Section 8(b)(1)(A) and (2)
" He also paid a referral fee in September 1978. 1 do not credit his
claim that he paid in July, because it is contrary to the Respondent's
record.
12 Raney's letter to Whicker, and perhaps other employees, of Febru-
ary 26, 1979, assuring that the Union had no intent to exclude people
who did not pay the referral fee from employment, was after the charge
was filed in the instant case and requires no different conclusion.
is The collective-bargaining agreement specifically provides, at art. 3,
sec. (c), that the employer shall not be required to hire those referred by
the Union.
TEAMSTERS LOCAL UNION NO. 667 267
of the Act. 14 No additional discrimination need be
shown.
The General Counsel makes no effort to determine
what a reasonable fee might be, taking the position that
no fee is reasonable because the Respondent operated no
referral hall and performed no service warranting any
fee. The General Counsel does not suggest what services
they should have received but didn't.
It seems to me that registrants received the same ser-
vices from the referral system that are customarily pro-
vided. In the case of the miscellaneous list, from which a
relatively few employees secured employment, the appli-
cant's name was entered thereon and employees were re-
ferred out in order of their standing on the list. That
many were not reached for referral, or chose not to pay
the monthly fee to remain on the list, does not alter the
fact that those paying the fee chose to take advantage of
the system, with full knowledge there was no guarantee
of employment,'s and received the services applicable to
their situation. This is what referral halls are all about.
You come in, get on the list, and maybe get reached for
job referral. Union costs incident to both the registration
and the referral are plainly attributable to the operation
of the service.
The General Counsel argues that no service was given
to those casuals who were working when the referral
system commenced in July 1978, and that all they did
was pay fees for nothing. The Respondent's grant of per-
mission to employers to continue to employ the casuals
they already had, with the proviso that these employees
should belong to the referral hall, was reasonable in the
circumstances. The employees were permitted to contin-
ue to work without interruption and disruption of the
employers' day-to-day operations was avoided. I do not
believe the General Counsel would require dismissal of
all incumbents and then rehire only after going through
the referral system. This would be an unreasonable exal-
tation of form over substance.
In any event, Section 10(b) of the Act prohibits any
finding that the fees paid prior to August 22, 1978, were
unlawfully unreasonable. I conclude, from Wade's credi-
ble testimony that applicants had to pay by the 10th of
the month to get on the list, that the only fees that are
subject to attack by the complaint are those for Septem-
ber 1978 and the months thereafter.
An examination of the employers' weekly casual re-
ports compiled by the General Counsel clearly shows
that even regularly returned casuals' employment was of
an intermittent nature, frequently punctuated by gaps of
several weeks' duration. I do not see that it makes any
difference whether an employee came to the hall seeking
work, paid the fee, was registered and referred to some
employer where he might be hired, or whether he had
been assured work, contingent on lawful referral,' 6
before he went down to pay the fee and get on the list.
The Respondent was, in both cases, furnishing employ-
ment service pursuant to a lawful contractual provision
which had not been waived by the Respondent.
Commencing in January 1979, the Respondent sent
copies of the miscellaneous list to employers, who there-
after made the employment contacts directly with those
on the list. I do not consider this convenience to be a
material deviation from hiring practice. The applicants
still had to pay the fee to the Union to get on the list.
I agree with the Respondent that the mere fact that
the referral fee was roughly equivalent to monthly dues
does not establish in and of itself that the fee was unrea-
sonable. On the other hand, neither does it establish that
the fee was reasonable.
Secretary-Treasurer Pelliccotti furnished the General
Counsel, and the General Counsel placed in evidence, a
written list of expenses, set forth below, that Respondent
considered attributable to operation of the referral
system from July through December 1978:
Salary for Deborah Wade at $499.45 per week for 26 weeks:
10% of the rent at $125.00 per month for 6 months
10% of office administrative expenses for 6 months
Printing
5% of other salaries
Utilities for 6 months $2,352.70 - 10%
Basic telephone bill for 6 months $3,444.48 - 10%
Per capita tax 17/ paid for 6 months
Total Expenses
$12,985.70
750.00
4,030.90
70.09
10,482.42
235.27
344.44
8,278.20
$37,177.02
4 Coal Producers' Association of Illinois, 165 NLRB 337, 338 (1967); In-
rernational Alliance of Theatrical Stage Employees and Motion Picture Ma-
chine Operators of the United States and Canada, AFL-CIO. Local 640 (As-
sociated Independent Theatre Company, Inc.), 185 NLRB 552, 558-559
(1970); J. Hagerty. Inc., 153 NLRB 1375 (1965); Local 825, International
Union of Operating Engineers. supra: Boston Cement Masons, supra.
'5 Which Wade told applicants when they came in to get on a referral
list
t' It was not unlawful for the Union to require the employers to utilize
the referral system to secure the employment of specified employees.
Local 1341, United Brotherhood of Carpenters and Joiners of America.
AFL-CIO. etc. (Lanham Brothers. General Contractors), 161 NLRB 344
(1966).
"; The fees were 3.15 per month for the International Union, 75 cents
for the Southern Conference, and 25 cents for Joint Council No. 87. The
International constitution requires the payment of per capita taxes on re-
ferral fees
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Additionally, Respondent's records show the following:
Number of employees
Month paying fee
July 1978
August
September
October 18/
November
December
January 1979
February
March 19/
446
488
504
513
395
282
230
213
140
Gross Monthly
Fees Received
$ 6,750.00
7,425.00
7,628.00
8,765.00
6,764.00
4,845.00
$42,177.00
$ 3,979.00
3,621.00
2,380.00
$52,157.00
Subtotal
Total collected
Returning to the Respondent's list of expenses, a com-
putation of Wade's earnings from a compilation of Re-
spondent's records shows her earnings during the period
encompassed by the list were $8.59 per hour for 40 hours
per week, totaling $343.60 a week. Pelliccotti credibly
testified that pension plan costs attributable to the em-
ployment of Wade were $41 per week for one plan plus
21.7 percent of her salary for the other. I compute the
latter at $74.57 per week. The addition of these pension
costs to her salary produces a weekly cost of $459.17.
When health and welfare, workmen's compensation, un-
employment insurance, and social security costs, none of
which are specifically set forth in the record, are added
on, Pelliccotti's total figure of $499.45 per week does not
appear unreasonable. Pelliccotti's allocation of a percent-
age of the rent, administrative expenses, printing, utilities,
and local phone calls is unrebutted and does not appear
exorbitant. In view of Assistant Business Agent Newton's
credible testimony that he spent 50 percent of his time
tending to referral business, the fact that his salary is
$612 a week, and the evidence that other agents also de-
voted some time to the referral system, Pelliccotti's esti-
mate of 5 percent of salaries attributable to referral busi-
ness seems reasonable.
Accepting Pelliccotti's figures for these items, as I do,
I am persuaded that the charge for per capita taxes is not
properly attributable to the costs of providing referral
service. 20 That the Respondent's constitution may re-
quire this payment does not transform it into an allowa-
ble cost for referral services.
Inasmuch as the only reasonably complete data avail-
able to me for purposes of computing a reasonable fee is
that for the months of July through December 1978, and
inasmuch as the fee payment only continued an addition-
al 3 months, I shall treat this 6-month period as reason-
ably representative for calculation purposes.
Subtracting the per capita taxes from the total figure
leaves a remainder of $28,898.82 reasonably attributable
18 The fee for October and months following was $17, as opposed to
$15 in prior months.
'9 Respondent's records show a refund of $17 for March 1979.
20 J J. Hagerty. Inc.. supra at 1376.
to hiring hall costs for 6 months. Dividing this remainder
by 2628, the total number of fees paid during that period,
results in an allowable fee of $10.996, rounded off to
$11.00. Thus, in a circuitous way, we arrive at the al-
ready evident conclusion that employees were over-
charged to the extent of the per capita taxes.21
I find that the monthly fee charged through September
1978 was unrelated to the operation of the referral ser-
vice, and therefore unlawfully exacted, in the amount of
the per capita taxes, $4.15 per month. There is no justifi-
cation, other than the increase in members' dues, for the
$2-per-month increase in the fee effective October 1978.
I therefore find that the fee was excessive in the amount
of $6.15 per month from October 1978 through Decem-
ber 1978.
Ms. Wade's duties in connection with the referral ser-
vice diminished to approximately 60 percent of her time
about January 1, 1979. It thus appears that $300, less a
few cents, of her weekly wage was attributable to the
service in January, February, and March 1979. Recogniz-
ing that the costs per referral will inevitably fluctuate
with the number of referrals, certain basic office costs
will remain relatively static, the amount of time spent on
referrals by other union agents is probably not subject to
precise calculation, 22 the commonsense argument that
the Respondent cannot reasonably be expected to recal-
culate its referral fee every month, and that a premise
figure is probably unattainable, I am inclined to believe
that costs will balance out over a period of time, as will
the variations in Ms. Wade's hours devoted to referrals.
My review of the Respondent's figures reveals no incli-
nation by the Respondent to inflate its costs, impermissi-
ble though the fee increase and per capita taxes may be.
The 6-month period from July through December is a
reasonably representative period, and it follows that re-
ferral costs during that period are also reasonably repre-
21 In reaching this conclusion I am not unmindful that some few union
members, who did not pay fees, may have utilized the referral service,
but it is plain the system was set up to secure service fees from non-
member casuals. The system was really erected for nonmembers to pay
for services rendered, and I am convinced that expenses incurred were
attributable to nonmember services with but de minimis exception
22 Pelliccotti's allocation of other salaries strikes me as quite conserva-
tive
TEAMSTERS LOCAL UNION NO. 667 269
sentafive. 2 3 Accordingly, I find the fee was excessive by
$6.15 per month from January through March 1979.
Upon the foregoing findings of fact and conclusions
drawn therefrom, and upon the entire record, I make the
following:
CONCLUSIONS OF LAW
1. Spector Freight System, Inc., is an employer en-
gaged 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 requiring, as a condition of registration and re-
ferral for employment from its exclusive referral hall, the
payment of a referral fee in excess of cost attributable to
23 Increases in costs due to inflation are speculative on this record, and
I do not consider them. The per capita taxes would not be an allowable
amount in any month.
the services rendered, the Respondent violated Section
8(b)(1)(A) and (2) of the Act.
4. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
In addition to a recommended Order that the Respon-
dent cease and desist from the unfair labor practice
found herein and post the customary notice to its mem-
bers and employees, I shall further order that the Re-
spondent refund $4.15 of each monthly referral fee paid
thereafter, with interest thereon to be computed in the
manner prescribed in Florida Steel Corporation, 231
NLRB 651 (1977).24
[Recommended Order omitted from publication.]
24See, generally Isis Plumbing Heatinmg Co., 138 NLRB 716 (1962).