Tri-County Roofing

National Labor Relations Board - Board Decisions

Aug 31, 1993

311 N.L.R.B. 1368 (N.L.R.B. 1993)

1368
311 NLRB No. 188
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent Union and the Respondent Employer have ex-
cepted to some of the judge’s credibility findings. The Board’s es-
tablished policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the rel-
evant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for
reversing the findings.
The Respondent Union has excepted to the judge’s use of the term
‘‘apprentice program’’ to describe the Local 30B training program.
We find merit to the Respondent Union’s exception, but this does
not change the result in this case. Although the Local 30B training
program (as we shall term the ‘‘apprentice program’’) was not as
rigorous as the Local 30 apprentice program, it nonetheless was still
a formal, several-years-long school program aimed at providing com-
mercial training and experience to Local 30B members. This training
and the 5000 hours of roofing experience as set out by the judge
are suitable criteria for qualification for Local 30 referrals and back-
pay.
The judge inadvertently refers to ‘‘Rise Roofing’’ in the backpay
portion of his decision rather than ‘‘Rys Roofing.’’
We also acknowledge the existence of and our review of the civil
RICO case involving Local 30. U.S. v. Roofers Local 30, 686
F.Supp. 1139 (E.D.Pa.1988), affd. 871 F.2d 401 (3d Cir. 1989), cert.
denied 110 S.Ct. 363 (1989). We find that the RICO case and the
decision of Judge Louis Bechtle do not preclude our decision here
but in fact bolster the need for our Order and notice.
2 We do not understand the judge to have made a definitive find-
ing that all helpers were unqualified for commercial work.
Tri-County Roofing, Inc. and Ace Roofing & Sheet
Metal, Inc. and David Suda
Local 30, United Slate, Tile and Composition Roof-
ers, Damp and Waterproof Workers Associa-
tion, AFL–CIO and David Suda. Cases 4–CA–
17967, 4–CB–5809, 4–CB–5876, and 4–CB–6038
August 31, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On May 8, 1992, Administrative Law Judge Stephen
J. Gross issued the attached decision. The Respondent
Union and the Respondent Employer each filed excep-
tions and supporting briefs. The General Counsel filed
a brief in support of the judge’s decision, cross-excep-
tions and a supporting brief, and an answering brief to
the Respondent’s exceptions. The Respondent Union
filed a brief in opposition to the General Counsel’s
cross-exceptions.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,1 and conclusions as modified and to
adopt the recommended Order as modified and set
forth in full below.
1. As part of his recommended remedy for the Re-
spondent Union’s unlawful hiring hall practices, the
judge recommended that the Local 30 and Local 30B
hiring halls be operated in a nondiscriminatory manner
based on written objective criteria and standards. We
agree. To that end we will order that the Respondent
Union select and refer qualified applicants for employ-
ment without discrimination against the applicants by
reason of membership or nonmembership in the Union
or any of its components or Locals, or on the basis of
union activity. In addition, we will order that any and
all membership distinctions in referrals to roofing em-
ployment within the jurisdiction of Locals 30 and 30B
be prohibited: membership in one division, section, or
part of the Union shall not be a bar to employment in
any division, section, or part of the Union or industry.
The judge also recommended that the work-referral
lists of Local 30 and Local 30B under contracts with
Roofing and Sheet Metal Contractors Association of
Philadelphia & Vicinity, and Roofing, Metal and Heat-
ing Associates, Inc. be merged and only one list be
maintained for all applicants seeking referral. We do
not adopt the judge’s merger recommendation. As the
judge himself observed, ‘‘the maintenance of a system
providing for two distinct rates of remuneration . . .
has served useful purposes.’’ Since the same objective
sought by the merger, i.e., the nondiscriminatory refer-
ral of qualified individuals, can be accomplished with-
out a remedy so intrusive as that of ordering a merger
of the lists we will not require such a merger here. We
also note that the judge who heard and decided the
RICO case (see fn. 1, supra), which was based in large
part on the same evidence before us, did not order a
merger of the hiring hall lists.
2. The General Counsel has excepted to the judge’s
failure to include in the proposed class of individuals
potentially entitled to backpay those individuals who
worked under the Local 30B/RMHA contract and paid
‘‘field’’ dues but who did not become full members of
Local 30B (‘‘helpers’’). The judge held that the record
did not prove that the Local 30B helpers would have
been ‘‘entitled’’ to seek job referrals from the Local 30
hiring hall even had the Respondent Union not dis-
criminated against its Local 30B members.2 The Gen-
eral Counsel excepts that the only proper test is wheth-
er the helpers were qualified for referral. According to
the General Counsel, if a helper could meet the re-
quirements set out by the judge for referral to Local
30 jobs, then the helper should not be categorically ex-
cluded because he or she was not a journeyman or not
a member of Local 30B. As noted by the General
Counsel, the helpers are encompassed within the com-
plaint allegations as those persons denied referrals be-
cause of their ‘‘membership status.’’ According to the
General Counsel’s argument, the helpers are analogous
to the Local 30B members in that both have been de-
nied referrals because of their lack of membership in
Local 30. We find merit to the General Counsel’s ex-
ception. Accordingly, if, at the compliance phase of
this proceeding, it is determined that a helper meets
1369TRI-COUNTY ROOFING
the criteria for referral to commercial roofing work set
forth by the judge, then that individual is part of the
class entitled to backpay. The Order and Notice have
been modified accordingly.
3. The General Counsel has also excepted to the
judge’s failure to order that the newly promulgated for-
mal hiring hall criteria and standards be mailed to
members of Local 30 in addition to Local 30B mem-
bers. We find merit to the General Counsel’s excep-
tion. In ordering the mailing to Local 30B members,
the judge stated that he was concerned that the Union’s
hiring hall discrimination against its Local 30B mem-
bers had ‘‘become so institutionalized that special
steps were needed to make it clear to those members
that things had changed.’’ We also think it necessary
to apprise the Local 30 members individually of the
changes in the long-established hiring hall policies in
order to minimize any future problems. Accordingly,
to alleviate any potential misunderstanding among
members of Local 30 and Local 30B about the new
hiring hall rules, and in the interest of full notice and
disclosure, we will order that our Notice to Members,
which includes the new hiring hall criteria and stand-
ards, be mailed to all members of Local 30 and Local
30B.
4. The Respondent Employer excepts to the judge’s
determination that it is jointly and severally liable with
the Respondent Union for its unlawful termination of
employee David Suda. The general rule is that an em-
ployer and union are jointly and severally liable for
backpay where the employer and the union have vio-
lated Section 8(a)(3) and (1) and Section 8(b)(1)(A)
and (2) of the Act, respectively. International Har-
vester Co., 270 NLRB 1342 (1984); Acme Mattress
Co., 91 NLRB 1010 (1950), enfd. 192 F.2d 524 (7th
Cir. 1951). Despite this, the Respondent Employer, cit-
ing Roofing, Metal & Heating Associates, 304 NLRB
155 (1991), contends that at most it should be held
only secondarily liable, with the Respondent Union
being held primarily liable. We do not agree and find
Roofing, Metal & Heating Associates distinguishable.
Roofing, Metal & Heating Associates was an unusual
case because the employer (the Fund and the RMHA)
had turned de facto control of the hiring and retention
of its training instructors over to the union. The union
then ordered the discharge of an instructor because the
instructor was going to seek the union business man-
ager’s job. The employer expressed displeasure at the
union’s directive and only reluctantly acceded to the
union’s demand. As a result, the union was found pri-
marily liable, the employer secondarily.
That is a far different situation from the present
case. Here, the Respondent Union did not control the
Respondent Employer’s hiring or retention of employ-
ees. The Respondent Union did not contact or apply
direct pressure to the Respondent Employer regarding
Suda’s discharge. Instead the Respondent Employer,
based on Suda’s advising it of the Respondent Union’s
trial board action, discharged Suda. As found by the
judge, the Respondent Employer terminated Suda in
order to avoid a perceived conflict with the Union and
it knew, or had reason to know, that the Respondent
Union’s demand that Suda leave its employ did not
have a legitimate basis. The Respondent Employer had
other options but it, nevertheless, chose to lay off
Suda. Under these circumstances, the Respondent Em-
ployer is clearly as culpable as the Respondent Union
and thus is jointly and severally liable with the Re-
spondent Union. Wolf Trap Foundation, 287 NLRB
1040 (1988).
ORDER
The National Labor Relations Board orders that the
Respondent Local 30, United Slate, Tile and Composi-
tion Roofers, Damp and Waterproof Workers Associa-
tion, AFL–CIO, Philadelphia, Pennsylvania, its offi-
cers, agents, and representatives, shall
1. Cease and desist from
(a) Informing employee-members of Local 30B that,
because they are members of the Local 30B side of the
Union, they are not permitted to seek job referrals
from any of the Union’s exclusive hiring halls.
(b) Discriminatorily failing to refer any employee-
member of Local 30B to jobs available through the
Union’s exclusive hiring halls.
(c) Assaulting any employee-member of Local 30B
because the employee is seeking a job referral from a
hiring hall operated by the Union.
(d) Imposing a fine on any employee-member of
Local 30B in circumstances in which the imposition of
such fine coerces and restrains the member in respect
to seeking job referrals through exclusive hiring halls
operated by the Union.
(e) Causing the termination of the employment of
any employee-member of Local 30B with any em-
ployer because that employee-member is not a member
of the Local 30 side of the Union.
(f) Unless its exclusive hiring halls are being oper-
ated nondiscriminatorily in respect to employee-mem-
bers of Local 30B, causing the termination of any such
member by any employer because the member ob-
tained employment other than through a hiring hall op-
erated by the Union.
(g) In any other manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Maintain and operate its exclusive hiring halls in
a nondiscriminatory manner based on written objective
criteria and standards.
1370 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
4 See fn. 3.
(b) Post the criteria and standards required in para-
graph (a) in all exclusive hiring halls operated by the
Union and mail a copy of the criteria and standards to
every employee-member of Local 30 and Local 30B.
(c) Provide copies of the criteria and standards re-
quired in paragraph (a) to the Regional Director and to
the chief court liaison officer appointed pursuant to the
decree of the United States District Court for the East-
ern District of Pennsylvania in Civil Action No. 87-
7718.
(d) Select and refer applicants for employment with-
out discrimination against the applicants by reason of
membership or nonmembership in the Union or any of
its components or Locals, or on the basis of union ac-
tivity. Any and all distinctions in referrals to roofing
employment within the jurisdiction of Locals 30 and
30B based on divisional membership are prohibited.
Membership in one division, section, or part of the
Union may not be a bar to employment in any divi-
sion, section, or part of the Union or industry.
(e) Place hiring hall referral lists in conspicuous
places within the exclusive hiring halls operated by the
Union so as to provide for easy access and inspection
by all applicants seeking job referrals.
(f) Make David Suda and other employee-members
of Local 30B and helpers whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against them, in the manner, and in respect
to the persons, set forth in sections XIII(C) and
XIV(A) of the judge’s decision and as set forth in this
decision.
(g) Maintain, for 2 years, written records of its refer-
rals from every hiring hall operated by the Union, in-
cluding information sufficient to disclose the basis of
each referral, and make the records available to the
Regional Director and to the chief court liaison officer
for examination and copying upon the request of ei-
ther.
(h) Submit quarterly reports to the Regional Direc-
tor, with copies to the chief court liaison officer, con-
cerning referrals of employee-members of Local 30B
and helpers to employers that are members of the
Roofing and Sheet Metal Contractors Association of
Philadelphia & Vicinity in the manner set forth in sec-
tion XIII(B) of the judge’s decision.
(i) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
hiring hall records, membership lists, and all other
records necessary to determine the amounts due under
the terms of this Order.
(j) Post in each of its hiring halls copies of the at-
tached notice marked ‘‘Appendix A.’’3 Copies of the
notice, on forms provided by the Regional Director for
Region 4, after being signed by the Union’s represent-
ative, shall be posted by the Union immediately upon
receipt and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to
members are customarily posted. Reasonable steps
shall be taken by the Union to ensure that the notices
are not altered, defaced, or covered by any other mate-
rial.
(k) Mail a copy of Appendix A to every member of
Local 30B and Local 30.
(l) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
B. The National Labor Relations Board orders that
the Respondents Ace Roofing & Sheet Metal, Inc. and
Tri-County Roofing, Inc., Philadelphia, Pennsylvania,
their officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Terminating the employment of any employee-
member of the Local 30B side of Local 30, United
Slate, Tile and Composition Roofers, Damp and Wa-
terproof Workers Association, AFL–CIO, because of a
demand by Local 30 that the employee leave such em-
ployment, in circumstances in which the Respondents
Ace and Tri-County know, or have reason to know,
that the demand has no legitimate basis.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer David Suda immediate and full reinstate-
ment to his former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice
to his seniority or any other rights or privileges pre-
viously enjoyed and, jointly and severally with Local
30, make him whole for any loss of earnings and other
benefits suffered as a result of the discrimination
against him, in the manner set forth in section XIV(A)
of the judge’s decision.
(b) Remove from its files any reference to the un-
lawful termination of Suda’s employment and notify
Suda that this has been done and that the termination
will not be used against him in any way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at its facilities copies of the attached notice
marked ‘‘Appendix B.’’4 Copies of the notice, on
1371TRI-COUNTY ROOFING
forms provided by the Regional Director for Region 4,
after being signed by the representatives of Ace and
Tri-County, shall be posted by Ace and Tri-County im-
mediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondents to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondents have taken to comply.
APPENDIX A
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT tell members of the Local 30B side
of our Union that they are not permitted to seek job
referrals from any exclusive hiring hall that we oper-
ate.
WE WILL NOT discriminatorily keep any member of
Local 30B from using any exclusive hiring hall that we
operate.
WE WILL NOT assault any member of Local 30B be-
cause the member is seeking a job referral from a hir-
ing hall that we operate.
WE WILL NOT impose fines on members of Local
30B in circumstances in which the imposition of the
fines coerces and restrains such members in respect to
seeking job referrals through exclusive hiring halls that
we operate.
WE WILL NOT force any member of Local 30B to
leave a job because that member is not a member of
Local 30. Unless we are operating the Local 30 hiring
halls in a way that does not discriminate against Local
30B members, WE WILL NOT force any member of
Local 30B to leave a job because that member got the
job without going through one of our hiring halls.
WE WILL NOT in any other manner restrain or coerce
you in the exercise of the rights guaranteed you by
Section 7 of the Act.
WE WILL maintain and operate our Local 30 hiring
halls in a nondiscriminatory manner based on written
objective criteria and standards.
WE WILL post these criteria and standards in all
Local 30 and Local 30B hiring halls and mail a copy
of such criteria and standards to every employee-mem-
ber of Local 30 and Local 30B.
WE WILL select and refer applicants for employment
without discrimination against those applicants by rea-
son of membership or nonmembership in the Union or
any of its components or Locals, or on the basis of
union activity. Any and all distinctions in referrals to
roofing employment within the jurisdiction of Locals
30 and 30B based on divisional membership are pro-
hibited. Membership in one division, section, or part of
the Union is not a bar to employment in any division,
section, or part of the Union or industry.
WE WILL place hiring hall referral lists in con-
spicuous places within the Local 30 and Local 30B
hiring halls for easy access and inspection by all appli-
cants seeking job referrals.
WE WILL make David Suda and the following other
members of Local 30B and helpers whole for any loss
of earnings and other benefits, with interest, that they
may have suffered since September 20, 1988, as a re-
sult of the discriminatory way we operated the Local
30 hiring halls—
Any member of Local 30B or any helper having,
at the time of the claimed loss:
At least 5000 hours of roofing experience and
who graduated from the Local 30B training pro-
gram; or
A total of at least 5000 hours of roofing experi-
ence with one or more of the following compa-
nies:
Delta Roofing
McGarvey & Sons
McMullen Roofing
Reilley Roofing
R. J. Associates
Rys Roofing Company
U.S. Roofing/J.M. Contractors
Wolfe Roofing & Sheetmetal, Inc.
Any member of the RSMCA
Any other employer that does mostly commer-
cial roofing work; or
At least 5000 hours of commercial roofing experi-
ence.
WE WILL, jointly and severally with Ace Roofing &
Sheet Metal, Inc. and Tri-County Roofing, Inc., make
David Suda whole, with interest, for any loss of earn-
ings and other benefits that he suffered as a result of
the termination of employment.
WE WILL maintain written records of referrals from
all of our hiring halls for 2 years, with those records
containing information sufficient to disclose the basis
of each referral.
WE WILL submit quarterly reports to the Regional
Director and to the chief court liaison officer concern-
ing referrals of employee-members of Local 30B and
helpers to employers that are members of the Roofing
1372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 That area includes Reading and Allentown, Pennsylvania; Wil-
mington and New Castle, Delaware; Atlantic City and Cape May,
New Jersey; and surrounding counties.
2 Numerous employees who are not members of Local 30B none-
theless have ‘‘field dues’’ deducted from their pay while they engage
in work within the jurisdiction of Local 30B for employers who
have a contractual relationship with Local 30B.
and Sheet Metal Contractors Association of Philadel-
phia & Vicinity.
LOCAL 30, UNITED SLATE, TILE AND
COMPOSITION ROOFERS, DAMP AND
WATERPROOF WORKERS ASSOCIATION,
AFL–CIO
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT terminate the employment of any
member of Local 30B, United Slate, Tile and Com-
position Roofers, Damp and Waterproof Workers As-
sociation, AFL–CIO, because of a demand by Local 30
that the employee leave such employ, in circumstances
in which we know, or have reason to know, that such
demand lacks a legitimate basis.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer David Suda immediate and full rein-
statement to his former job or, if that job no longer ex-
ists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed and, WE WILL jointly and severally
with Local 30, make him whole, with interest, for any
loss of earnings and other benefits suffered as a result
of our discrimination against him.
WE WILL remove from our files any reference to the
unlawful termination of David Suda and WE WILL no-
tify Suda that this has been done and that the termi-
nation will not be used against him in any way.
ACE ROOFING & SHEET METAL, INC.
AND TRI-COUNTY ROOFING, INC.
Carmen P. Cialino Jr. and Peter Verrochi, Esqs., for the
General Counsel.
Richard B. Sigmond and Thomas Kohn, Esqs. (Sagot, Jen-
nings & Sigmond), of Philadelphia, Pennsylvania, for Re-
spondent Roofers Local 30.
David W. Wolf, Esq., of Philadelphia, Pennsylvania, for Re-
spondents Tri-County Roofing, Inc. and Ace Roofing &
Sheet Metal, Inc.
DECISION
STATEMENT OF THE CASE
STEPHEN J. GROSS, Administrative Law Judge. The Gen-
eral Counsel’s allegations concerning the Respondent Union
center around what the General Counsel contends is the un-
lawful way the Union operates its hiring halls. As for Ace
Roofing and Tri-County, the General Counsel alleges that
they are alter egos of one another, that the Union unlawfully
demanded that an employee of Ace/Tri-County, David Suda,
leave the employ of that Company, and that Ace/Tri-County,
in response, unlawfully fired Suda.
This proceeding began with unfair labor practice charges
filed by David Suda on March 20, 1989. Suda thereafter filed
additional charges and amended charges. On January 23,
1991, a consolidated complaint issued in Cases 4–CB–5809
and 4–CB–5876. Then on February 28 another consolidated
complaint issued, in Cases 4–CB–5809, 4–CB–5876, and 4–
CB–6308 and in 4–CA–17967. The Respondent Union, Ace
and Tri-County admit that the Board has jurisdiction over
this matter, that the Respondent Union is a labor organiza-
tion, and that Ace and Tri-County are employers engaged in
commerce. Ace and Tri-County further admit that they are
alter egos of one another. But the Respondents deny that
they have violated the National Labor Relations Act (the
Act) in any respect.
The case went to hearing in Philadelphia on various dates
between April and September 1991. The General Counsel
and the Respondent Union have filed briefs as have, jointly,
Ace and Tri-County. The case stands ready for decision.
For the reasons I discuss below, my conclusion is that the
facts of record prove that the Respondents violated the Act
in the ways and to the extent alleged by the General Coun-
sel.
FINDINGS OF FACT
I. INTRODUCTION
A. Local 30 and Local 30B
An initial peculiarity is that we must first sort out whether
we are dealing with two unions, or just with one.
In 1968, at a time when the entity Local 30 was already
in existence, the Roofers Union International granted a char-
ter to ‘‘Local 30B.’’ Since then employees interested in join-
ing a roofers union in the Locals 30/30B jurisdictional area
(which is centered in Philadelphia1) must choose between
Local 30 and Local 30B. There is one membership roll for
Local 30 (with about 1200 members) and another for Local
30B (between 300 and 400 members).2 Dues are different.
Moreover various employers, including one employers’ asso-
ciation, have entered into collective-bargaining agreements
with Local 30B while, contemporaneously, another employ-
ers’ association and other employers have contracted with
‘‘Local 30.’’ And employers that have contracts with Local
30B make fringe benefit payments into funds different from
the funds that the Local 30 employers pay into.
On the other hand: (1) there is just one set of officers for
Local 30 and 30B; (2) those officers are elected in combined
Locals 30/30B elections (the ballots of the 30B members are
1373TRI-COUNTY ROOFING
3 These figures exclude fringe benefits. Local 30’s fringe benefits
are comparably higher than 30B’s.
counted together with those of the Local 30 members to get
one combined total); (3) one executive board governs Locals
30 and 30B; (4) there is just one constitution and one set of
bylaws for Locals 30 and 30B; (5) the Locals 30 and 30B
business agents are the same, so that any one business agent
is likely to handle both Local 30 and Local 30B matters; (6)
Locals 30 and 30B file one financial statement (LM-2) with
the Department of Labor; (7) Locals 30 and 30B have one
set of hiring hall rules (labeled ‘‘30/30B’’); and (8) the
Union’s trial boards (designated ‘‘Local 30/30B’’ trial
boards) have jurisdiction over the members of both Local 30
and Local 30B.
I conclude that, for the purposes of the Act, Locals 30 and
30B constitute one labor organization.
Throughout the remainder of this decision: the terms
‘‘Union’’ and ‘‘Local 30/30B’’ means the Respondent
Union—the combined Locals 30 and 30B. ‘‘Local 30’’ refers
to that one ‘‘side’’ of the Union (in the members’ termi-
nology) and ‘‘Local 30B,’’ or just ‘‘30B,’’ refers to the other
side.
B. The Union’s Hiring Halls
The Union’s main hiring halls are in Philadelphia. But the
Union operates hiring halls in various other cities and towns
within the Union’s geographic jurisdiction, such as in Tren-
ton, New Jersey, and in Kutztown, Pennsylvania.
The Union treats each of its hiring halls as though it is
two halls, one for use by the Union’s Local 30 members, and
one for its 30B members. In Philadelphia, in fact, the Union
does operate one hiring hall for its Local 30 members and
a physically distinct hiring hall for its 30B members.
All of the hiring halls used by the Union’s Local 30 mem-
bers are exclusive hiring halls by virtue of the collective-bar-
gaining agreement between the Union and an association of
employers called the Roofing & Sheet Metal Contractors As-
sociation of Philadelphia and Vicinity (RSMCA). That is, the
employer-members of the RSMCA are obligated by their
agreement with the Union to hire roofing employees only
through the hiring halls operated by the Local 30 side of the
Union, and the Union forbids its members (whether 30 or
30B) to attempt to obtain employment with RSMCA mem-
bers except through the Local 30 hiring halls.
That the Local 30 hiring halls are exclusive hiring halls is
clear not only from the Union’s agreement with the RSMCA
agreement, but also from: the Union’s hiring hall rules; a
trial board decision that is part of the record in this pro-
ceeding; and the testimony of various witnesses.
As for the 30B halls, for many years until November 1989
the Union was a party to collective-bargaining agreements
with another group of employers, the Roofing, Metal &
Heating Associates (RMHA), which collective-bargaining
agreements also provided for the operation by the Union of
exclusive hiring halls. The name the Union went by when
executing those agreements with the RMHA was the ‘‘Resi-
dential Reroofing Union, Local 30B.’’
Notwithstanding contract language and hiring hall rules by
which the 30B halls were purportedly exclusive hiring halls,
employees routinely sought employment with members of
the RMHA by applying directly with such employers, and
members of the RMHA routinely hired employees without
using the 30B hiring halls. But nothing in this proceeding
turns on the Union’s 30B halls being exclusive hiring halls.
What is relevant about the 30B halls is that the pay scale
of jobs obtainable via the 30B halls is, and always has been,
substantially lower than the pay scale of jobs obtainable
through the Local 30 halls. (For example, as of January
1987, 30B journeyman wages were $14.25 per hour, while
Local 30 wages were $20.27—more than 40-percent high-
er.3)
II. THE UNION’S POLICY OF REFUSING TO REFER 30B
EMPLOYEES TO LOCAL 30 JOBS
It is the Union’s policy that Local 30B members may not
seek employment through the Local 30 side of its hiring
halls. Union officers were notably straight-forward about this
in their testimony.
Consider, for example, this exchange between counsel for
the General Counsel and Union Vice President Jack Conway:
Q. It is true, is it not, to your knowledge, that . . .
Local 30B members have never been referred out of the
Local 30 hiring hall?
A. Not to my knowledge, never. . . .
Q. To your knowledge, then, from March 1968
[when 30B came into existence], members of Local
30B have not been referred out [of] Local 30 hiring
halls?
A. Never to my knowledge. . . .
Q. As a general matter, Mr. Conway, it is true, is it
not, that people using the 30B side of the hiring hall
know that they are not supposed to use the Local 30
side of the hiring hall?
A. Yes.
Further, the record is clear that the Union’s sole basis for re-
fusing to let 30B members use the Local 30 hiring halls is
their membership in 30B rather than Local 30. The Union
treats as beside the point the 30B members’ qualifications for
the kinds of jobs available through the Local 30 hiring halls.
No matter how well qualified, 30B members are not per-
mitted to seek work through the Local 30 halls. In fact, there
is no mechanism by which 30B members may demonstrate
their qualifications for Local 30 work. (Some of the evidence
in these regards will be further considered in sections VI and
IX, infra.)
Lack of membership in a favored union is not an appro-
priate basis for refusing access to an exclusive hiring hall.
Rather, a union’s operation of an exclusive hiring hall in that
manner violates Section 8(b)(1)(A) and (2) of the Act. E.g.,
Teamsters Local 293 (Beverages Distributors), 302 NLRB
403 (1991); Teamsters Local 519 (Rust Engineering), 276
NLRB 898 (1985); Plumbers Local 198 (Jacobs/Wiese), 268
NLRB 1312 (1984); see Breininger v. Sheet Metal Workers
Local 6, 493 U.S. 6 (1989); Teamsters Local 357 v. NLRB,
365 U.S. 667 (1961).
Nor may a union operate a hiring hall in a way that favors
one faction of its members over another. Again, such behav-
ior constitutes a violation of Section 8(b)(1)(A) and (2).
Teamsters Local 293, supra; Toledo World Terminals, 289
NLRB 670 (1988).
1374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Per union witness Donnarumma.
The General Counsel’s prima facie case thus is obvious.
Indeed, the Union’s message to the 30B members that they
are not permitted to use the Local 30 hiring halls is in itself
a violation of Section 8(b)(1)(A). Longshoreman Local 1423
(Savannah Maritime), 306 NLRB 942 (1992); Q.V.L. Con-
struction, 260 NLRB 1096 (1982).
As its defense to the General Counsel’s contention that the
Union has prevented 30B members from using the Local 30
halls, the Union relies chiefly on the argument that most of
the 30B members are not qualified for the kinds of jobs
available through the Local 30 hiring halls.
But this is not a mixed-motive case. As just indicated,
membership in Local 30B has been the sole reason that the
Union will not refer 30B members to jobs out of the Local
30 halls. That being so, the Union violates the Act any time
it refuses a 30B member access to Local 30 job referrals,
even if the 30B member is not qualified for Local 30-type
jobs. See Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983).
Moreover the Union agrees that some 30B members are
qualified for the kinds of jobs obtainable via the Local 30
hiring halls. Here is Vice President Conway again:
Q. You don’t think 30B men are qualified to do
Local 30 work?
A. Some might be. I would say a few are.
And throughout the hearing, and on brief, the Union’s coun-
sel made the same point: some small percentage of 30B
members are qualified for the jobs available through the
Local 30 hiring halls.
Let us assume, therefore, that the Union could lawfully
deny 30B members access to the Local 30 halls if no mem-
ber of 30B were qualified for Local 30 work—notwith-
standing the fact that the qualifications of the 30B members
are not the reason for the Union’s denials of access. Even
then, and based entirely on undisputed facts, the Union’s re-
fusal to permit 30B members, as a class, to use the Local
30 halls would constitute a violation of the Act. The Union,
after all, points to no theory that would permit it to refuse
all 30B members access to the Local 30 halls on the ground
that most of the 30B members are not qualified for Local 30
work.
For purposes of determining whether the Union violated
the Act, that is to say, it matters not at all how large a pro-
portion of the 30B membership is qualified to perform the
kinds of work available through Local 30 halls or, indeed,
whether any 30B members are qualified for that work. As
will be discussed in later in this decision, however, the na-
ture of the remedy to be ordered arguably hinges on the ex-
tent to which 30B members are qualified for commercial
work. In the following part of this decision, therefore, I con-
sider the job requirements of the journeyman commercial
roofer, the qualifications of the 30B members, and how the
30B members’ qualifications stack up against the qualifica-
tions of the members of Local 30.
III. TO WHAT EXTENT ARE 30B MEMBERS QUALIFIED FOR
THE KINDS OF JOBS AVAILABLE OUT OF THE UNION’S
LOCAL 30 HIRING HALLS
A. Commercial Roofing Work
As touched on earlier, the Local 30 hiring halls are exclu-
sive hiring halls by reason of Local 30’s collective-bar-
gaining agreements with the RSMCA. For the purposes of
this proceeding we can assume that the business of the
RSMCA’s members is entirely the installation of flat com-
mercial roofs and, to a much lesser extent, waterproofing.
Some of these terms require definition:
‘‘Commercial’’ roof: Any roof other than a ‘‘residen-
tial’’ roof. A residential roof is a roof on a single
family home. A commercial roof is a roof on virtually
any other kind of building—factory, store, multi-fam-
ily apartment house or condominium, office building,
church, school, warehouse, and so on.
‘‘Flat’’ roof: Any roof that is relatively horizontal.
(Technically, any roof ‘‘with a vertical rise or fall of
less than three inches per horizontal run of one
foot.’’4)
‘‘Waterproofing’’: Anything, apart from roofing, having
to do with the watertight integrity of a building. The
floors of bathrooms, for example, or the below-grade
walls of a building may require waterproofing.
Many hundreds of pages of the transcript and exhibits in
this proceeding are devoted to describing commercial roofs
and the tasks involved in installing them. But for the pur-
poses of this decision all that need be said is this: Installing
commercial roofs is difficult, exacting work because, among
other things: (1) a commercial roof can cover acres of sur-
face, sloping in different directions toward many different
drains, and with many projections (vents, stacks, air-condi-
tioning equipment, etc.) to account for—yet, like any roof,
even the tiniest error in its installation is likely to result in
a leak; (2) roofs many stories above the ground, as commer-
cial roofs often are, sometime require special techniques for
bringing equipment and materials to the roof and removing
discarded materials from the roof; and (3) the purchasers of
commercial roofs inevitably demand multiyear warranties
from the manufacturer of the roofing material (Carlisle, Fire-
stone, Johns Manville, or Owens-Corning, for example). To
protect itself, the roofing manufacturer, in turn, requires that
the roofing contractor (that is, the employer to whom the
Union’s hiring halls refer employees) wholly comply with
vast numbers of installation specifications, and the manufac-
turer often inspects the roof meticulously to insure that every
one of those specifications has been met.
Adding to the complications of commercial roof work is
the fact that there are several broad categories of roofing ma-
terial, each of which requires very different installation tech-
niques. (For example one category—‘‘built-up’’ roofing—
calls for putting down layers of hot asphalt; another uses a
single ply of unheated rubber-like material.) Expertise associ-
ated with one category does not necessarily mean expertise
1375TRI-COUNTY ROOFING
5 The evidence about the 5000-hour standard is shaky. In fact it
is susceptible to the conclusion that the standard is a fraudulent,
after-the-fact, fabrication. At best: (1) the Union’s executive board
adopted the 5000-hour standard with the expectation that it would
not be implemented until approved by the Union’s membership; (2)
the membership was never given an opportunity to vote on it; and
(3) the Union’s leadership implemented the standard anyway. As in-
dicated above, I have decided to proceed on the basis of the interpre-
tation most favorable to the Union.
6 The testimony was by witness Michael Sullivan, who on several
counts has reason to consider himself an enemy of the incumbent
officers of Local 30 and an ally of Suda, the Charging Party. I none-
theless consider Sullivan’s testimony to be credible.
with another category. Beyond that, within any given cat-
egory there are numerous variations. Yet many commercial
roofing contractors hold themselves out as able to install vir-
tually any type of roof the customer chooses.
Ideally, a journeyman commercial roofer ought to be an
expert at all of the many tasks associated with installing each
of the various types of commercial roofs. That includes ex-
pertise in operating all of the various types of machinery
needed to install a commercial roof.
Ideally speaking, again, a journeyman commercial roofer
also ought to be expert at the somewhat different tasks in-
volved in waterproofing.
Finally, a journeyman commercial roofer should be able to
work fast without allowing the need for speed to reduce the
quality of his work.
It takes a typical worker anywhere from 4 to 6 years of
experience working on commercial roofs to become a fully
qualified journeyman commercial roofer. Schooling—as in
apprenticeship training—helps, but is not necessary.
B. Residential Roofing Work
The employers’ association with which Local 30B con-
tracted, it may be recalled, is the RMHA. (The RMHA is not
to be confused with the RSMCA, which is the employer as-
sociation that contracts with Local 30.) To the extent that
RMHA members use hiring halls to obtain employees, they
use the 30B halls. Many of the RMHA members do only res-
idential roofing, not commercial roofing. Accordingly, some
of Local 30B’s members are experienced only, or primarily,
in residential roofing work. (What the record tells us about
how many of the 30B members are qualified for commercial
roofing work, and how many only for residential work, will
be considered in subsection D, infra.)
Residential roof work involves both shingling (on steeply
sloping roofs) and flat roof work although, in the geographic
area over which the Union has jurisdiction, most residences
have flat roofs.
Residential flat roof work requires less skill than does
commercial work. For one thing, many fewer types of roof-
ing materials are used on residential roofs than on commer-
cial roofs. Second, for a variety of reasons residential roofs
are inherently less complicated to install than are commercial
roofs. Third, the equipment used on residential roofs tends to
be easier to learn how to operate than the equipment used
in installing commercial roofs. Fourth, manufacturers of roof-
ing material generally do not give warranties covering resi-
dential roofs. Thus residential roofing contractors do not
have to concern themselves with manufacturers’ inspections
and the related need to comply with every one of a manufac-
turer’s sometimes idiosyncratic installation specifications.
Additionally, some not inconsequential number of residen-
tial roofing contractors, knowing that their customers are
likely to be unsophisticated in roofing matters, keep their
costs low by cutting every corner imaginable. Roofers work-
ing for such companies gain little experience useful for com-
mercial work.
C. The Qualifications of Local 30’s Members
With the exception of those few apprentices who choose
to become members of the Union, the Union deems all of
its Local 30 members to be journeyman commercial roofers.
But in respect to most Local 30 members, the record tells
us very little about what standards the Union applied in de-
termining that they had journeyman qualifications and thus
were acceptable as members.
Some Local 30 members attained that status via Local
30’s apprenticeship program. I will assume that all of the
roofers who followed this route are in fact fully qualified
journeyman commercial roofers. But only a small percentage
of Local 30’s 1200 members are in that category.
In December 1988, the Union began applying a standard
whereby a roofer must have 5000 hours of commercial roof-
ing experience in order to be admitted to Local 30 member-
ship.5 But relatively few of the current members of Local 30
have become members since December 1988.
At least some Local 30 journeymen attained their journey-
man status this way: The roofer worked for one or more
RSMCA members as a helper; then, after some period of
years, one of the roofer’s supervisors proposed to the Union
that the roofer be designated a journeyman. But the record
is silent about how many of the Local 30 journeymen at-
tained that status this way. And the record is similarly silent
about how the Union decided whether to accept a given su-
pervisor’s recommendation that a roofer be accepted as a
journeyman.
Some members of Local 30 obtained their membership
even though they had no roofing skills or experience what-
ever. As one longtime member of Local 30 testified:
‘‘There’s guys in Local 30 that came right out of the door
and started getting . . . journeyman’s money that never had
a day’s lick of roofing.’’ That testimony is undenied.6
Did any of the members of Local 30 qualify under some
other set of criteria? The record doesn’t say. In fact the
Union’s president testified that, apart from the apprenticeship
route and the 5000-hour standard, ‘‘I don’t know what hap-
pened, really,’’ in respect to how roofers became Local 30
journeymen.
There is another kind of evidence in the record about the
qualifications of Local 30’s members: the testimony of roof-
ing contractors who employ members of Local 30. That testi-
mony shows that:
1. Many members of Local 30 do possess the skills,
knowledge, and experience needed for full qualification as
journeyman commercial roofers. But some undetermined
number of the members of Local 30 in this category have
not changed employers in years and thus hardly ever have
occasion to use the Local 30 hiring halls.
2. Some substantial number of members of Local 30 are
qualified in many, but not all, respects. For example, a roofer
in this group might be expert at built-up roofing but not sin-
gle-ply roofing (or vice versa) and/or might not know how
1376 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 The record provides information on the 30B industry fund con-
tributions that those companies made during those years. Those fig-
ures yield the approximate number of hours those companies em-
ployed 30B roofers. And other data in the record show that, on the
average, roofers work about 1000 hours per year. To get roofer man-
years, I applied the percentage figures referred to above (to get com-
mercial hours) to the total yearly 30B hours of the six companies,
and then divided by 1000.
8 According to the credible testimony of witness McGarvey, com-
mercial roofing constitutes ‘‘a large majority’’ of the business of the
following RMHA roofing contractors: McMullen Roofing, Reilley
Roofing, Rise Roofing, and Delta Roofing. McGarvey’s list did not
purport to be a complete catalog of RMHA companies that install
mostly commercial roofing.
9 For example, when counsel for the General Counsel asked Suda
to estimate ‘‘what percentage of the time . . . during your career
under Local 30B contract . . . was spent on commercial flat roofs
and what percentage on residential single-family flat roofs,’’ Suda
responded: ‘‘I would say the commercial roofing was 70%.’’ That
estimate, in turn, was consistent with Suda’s lengthy testimony about
his work for numerous named roofing contractors.
to operate some of the more specialized commercial roofing
equipment.
3. Some members of Local 30 do not consistently produce
competent work or, if they do, they do not consistently work
fast enough to meet the needs of roofing contractors.
4. Some members of Local 30 are not competent roofers.
What that testimony does not tell us, even roughly, is what
percentage of the Local 30 membership falls into each of
these categories.
D. The Qualifications as Commercial Roofers of Local
30B’s Members
As noted earlier and as will be further discussed below,
many members of the RMHA (the employers association
with which Local 30B contracted) perform only residential
roofing. Thus the likelihood is that at least some of Local
30B’s members are experienced only, or primarily, in resi-
dential roofing work. I do not consider such roofers to be
qualified for most kinds of jobs available through the Local
30 halls. The questions to be considered here are how many
30B members have commercial roofing experience and, of
those 30B members with commercial experience, to what ex-
tent are they qualified journeyman commercial roofers.
The record contains four kinds of evidence in these re-
spects: testimony of officials of six roofing contractors that
routinely employ 30B members on commercial roofing work
(and RMHA records showing the total hours that such con-
tractors employed 30B members); evidence concerning the
nature of the now defunct 30B apprenticeship program; testi-
mony concerning the extent to which RMHA members, as a
group, handle commercial work; evidence concerning the oc-
casional use of 30B members by contractors that ordinarily
use only members of Local 30; and testimony of roofing
contractors concerning the qualifications as commercial roof-
ers of 30B members.
Turning first to the testimony of officials of roofing con-
tractors that routinely employ 30B members, a half-dozen
testified about the nature of their work during the period rel-
evant to this proceeding. One (Donnelly) testified that 50
percent of the work of his company that was performed by
30B members work was residential, the rest commercial. The
other such witnesses testified that virtually all of the work
of their 30B employees was on commercial roofs (ranging
from 90 percent in two cases to more than 98 percent in two
others).
The testimony of those six roofing contractors, together
with various statistics of record, show that, together, those
six companies employed the equivalent of more than 100
members of Local 30B per year on commercial roof work
each year between 1987 and 1990.7 And those companies are
by no means the only roofing contractors that extensively
employ 30B roofers on commercial roofing work.8
It is clear from the testimony of the officers of those com-
panies, moreover, that the kinds of commercial work per-
formed by such 30B employees was comparable—in terms
of types of roofs and their complexities—to the work per-
formed by members of Local 30.
As for the evidence relating to the 30B apprenticeship pro-
gram, it shows that that program was aimed almost entirely
at producing commercial roofers.
As for the evidence about the work of RMHA members
as a group, one roofing contractor who had been a director
of the RMHA stated, in the course of cross-examination by
the Union’s counsel, that the ‘‘overwhelming majority’’ of
the roofing contractors that had a contract relationship with
Local 30B handled residential roofing work exclusively. I
credit that testimony. But the record is clear that roofing con-
tractors that do only residential work tend to be very small
businesses with few employees, and that the members of the
RMHA that do commercial work exclusively, or nearly ex-
clusively, are the largest members of that association. Thus
more relevant would be the hours worked by 30B members
on commercial roofs compared to total hours worked by 30B
members.
The executive director of the RMHA, Joseph Spitzer, testi-
fied about that relationship. He estimated that more 60 per-
cent of 30B hours were performed on commercial roofs. I
credit that testimony, although I recognize that inherent in it
is a significant margin of error. I thus find that more than
half of the roofing hours worked by the Union’s 30B mem-
bers were spent on commercial work. (The Union objected
to Spitzer’s testimony in that regard. But, as discussed at the
hearing, the issue is not whether the correct figure for com-
mercial 30B hours relative to total 30B hours is 60 percent
or, say, 57 percent. All that is needed here is a rough ap-
proximation. And Spitzer was a credible witness with dec-
ades-long employment by the RMHA in a capacity that kept
him in frequent communication with the association’s mem-
ber companies. Moreover Spitzer’s testimony squares with
considerable other evidence about the large amount of com-
mercial work being done by 30B members.9 And the Union
presented no evidence that rebuts the accuracy of Spitzer’s
testimony. I note also that Spitzer’s 60-percent testimony is
comparable in nature to the ‘‘overwhelming majority’’ testi-
mony elicited by the Union concerning the proportion of 30B
roofing contractors that perform only residential work, which
testimony I also have credited. I further note that my conclu-
sions about the Union’s violations of the Act and the rem-
edies that such violations warrant would be the same whether
commercial work constituted only one-fourth of all 30B
work—surely too low a figure—or more than half.)
It is also noteworthy that at least some RSMCA members
that perform commercial roofing work exclusively and whose
1377TRI-COUNTY ROOFING
10 General Counsel’s witness Ober.
work force generally is made up entirely of members of
Local 30 will from time to time employ 30B members. Very
occasionally such 30B employment is for shingling work (a
task that Local 30 members are not qualified to handle). But
much more frequently such 30B work is on typical commer-
cial roofs. (The use of 30B roofers by RSMCA members is
further discussed in section IV, infra.)
Using Spitzer’s 60-percent figure for the moment, does
that mean that all 30B members spend 60 percent of their
time on commercial work? Or that 60 percent of 30B’s mem-
bers spend all of their time on commercial work while the
other 40 percent of 30B members perform only residential
roofing? Or is some combination of the two the case? Clear-
ly the third alternative is the correct one. But the record does
not permit a breakdown beyond that. Nonetheless, it is evi-
dent that a substantial percentage of the Union’s 30B mem-
bers have considerable commercial roofing experience. Still,
the question that remains is what is the range of competency
at commercial roofing work of the 30B members as a group.
A witness who had recently been employed by a large
roofing contractor that permanently employs both Local 30
crews and 30B crews testified that the contractor’s 30B
crews were not as productive as its best Local 30 crews but
better than its worst Local 30 crews. Thus the 30B crews
‘‘rated somewhere in the middle of the pack.’’10
The head of an RMHA roofing contractor that perma-
nently employs 30B members and that occasionally uses
Local 30 roofers obtained from the Local 30 hiring halls
credibly testified that its 30B employees are far superior (as
commercial roofers) to the Local 30 employees it employed.
(One must be cautious when generalizing from such testi-
mony. As a roofing contractor hits slack periods, its manage-
ment tends to keep the best employees and lay off the rest.
After several cycles, the contractor ought to have assembled
a very superior group of employees for its permanent staff.
Thus an RSMCA roofing contractor that permanently em-
ploys members of Local 30 and that occasionally uses 30B
roofers obtained from the 30B hiring halls testified that the
30B roofers were unsatisfactory employees. Still, the experi-
ence of that RMHA company makes plain that some 30B
members are far more qualified as commercial roofers than
the run-of-the-mill member of Local 30.)
All of the evidence about the qualifications of 30B mem-
bers as commercial roofers points in this same direction. As
is the case with the members of Local 30: some 30B mem-
bers are exceedingly well qualified commercial roofers; some
are only partially qualified; some are not competent commer-
cial roofers; and the record does not tell us what percentage
of the 30B membership falls into each of these categories.
It is evident, nonetheless, that some substantial number of
30B members are competent commercial roofers.
I referred earlier to waterproofing work. The RSMCA’s
members do perform waterproofing. Concomitantly, a fully
qualified member of Local 30 ought to be familiar with wa-
terproofing. Thus the subject is taught, albeit briefly, in the
Local 30 apprentice program. Local 30B’s members appar-
ently only rarely do any waterproofing work. But as touched
on earlier, waterproofing amounts to only a small percentage
of the RSMCA’s work, and the record compels the conclu-
sion that inexperience at waterproofing work does not render
an otherwise qualified employee unqualified to seek referrals
from Local 30 hiring halls.
IV. A NOTE ON THE NATURE OF THE UNION’S DEFENSE
Throughout the hearing, and then again on brief, the Union
urged that what is involved here is, on the one hand, a union
of commercial roofing specialists (Local 30) and, on the
other, one of residential roofers (30B). True, because of in-
formation gained in the course of the hearing (so a Union
representative said), the Union now recognizes that there are
a few 30B members who are qualified to work on commer-
cial roofs. But apart from those few exceptions, the Union
contends, the Local 30/commercial versus Local 30B/-resi-
dential dichotomy remains.
But even ignoring the testimony about 60 percent of the
30B hours being on commercial roofs, the uncontroverted
testimony of contractors that were parties to the RMHA-30B
contract (and related statistics) shows that a substantial pro-
portion of the work of RMHA members and, therefore, 30B
members, is commercial roofing work.
Additionally, the Union’s leadership had to have known of
the nature of the now defunct 30B apprenticeship program.
And that program was directed almost exclusively at teach-
ing commercial roofing techniques.
But let us ignore even those kinds of evidence and con-
sider just this:
In the mid-1980’s the then head of Local 30, Business
Manager Steve Traitz Jr., called the members of the RMHA
(that is, the employers who employ 30B members) to a meet-
ing. In that meeting Traitz invited those contractors to be ag-
gressive in competing for commercial roofing contracts being
bid on by nonunion contractors.
About the same time (January 1986), Traitz called a meet-
ing of the RSMCA members. As an official of the RSMCA
testified, ‘‘the essence’’ of Traitz’ speech to the RSMCA
members ‘‘was to encourage Local 30 contractors to start
30B operations to begin to compete against non-union com-
petition in the outlying areas of the Union’s territory.’’ In
other words, if, because of nonunion competition, an
RSMCA member needed lower labor costs to win a commer-
cial roofing contract, the company could, with the Union’s
blessing, employ 30B roofers at 30B wage rates. Out of that
speech grew an elaborate system—still in place—whereby
members of the RSMCA apply to the Union for the right to
use 30B members on commercial roofing work (always at
30B rates) where nonunion competition may preclude the
employment of members of Local 30 (at Local 30 wage
rates). As a result, it is altogether routine for RSMCA roof-
ing contractors to employ 30B members whom they obtain
via 30B hiring halls.
We thus have a situation in which the Union’s leadership
has, for years, followed a policy of urging both RSMCA
members and RMHA members to employ members of Local
30B on commercial work whenever competitive cir-
cumstances preclude the use of members of Local 30 and in
which, on a day-in-day-out basis, the Union’s officers act
pursuant to the system that was created to implement such
policy.
In the very least these circumstances call into question the
authenticity of the astonishment that the Union voiced at the
hearing about the news that some 30B members are com-
petent commercial roofers.
1378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 I thus am giving collateral estoppel effect to Judge Bechtle’s de-
cision. At the hearing I asked for the parties’ views about the appro-
priate use to be made of that decision. The General Counsel noted
that the Union opted to include Judge Bechtle’s decree in the record
in this proceeding as U. Exh. 1, which decree specifies that it was
entered in accordance with ‘‘the court’s Findings of Fact and Con-
clusions of Law.’’ And the General Counsel’s brief assumes that I
may rely on Judge Bechtle’s findings. But otherwise the parties did
not respond to my inquiry.
More importantly they further demonstrate that the
Union’s refusal to permit any 30B members to use the Local
30 hiring halls has little if anything to do with various jus-
tifications put forth by Union representatives during the
course of this proceeding—justifications like the contention
that 30B members should not be referred out to commercial
jobs because such 30B members, being inexperienced at
commercial work, would be a danger to themselves and
those working with them.
V. THE EFFECT ON THE LOCAL 30B MEMBERS OF THE
UNION’S DISCRIMINATION AGAINST THEM
Local 30B member David Suda applied for job referral
from a Local 30 hall in June 1989. As far the record here
indicates, that was the only time any 30B member ever ap-
plied for a referral from a Local 30 hall even though, as al-
ready discussed: Local 30 jobs pay substantially more than
do 30B jobs; and the likelihood is that many 30B members
are qualified for Local 30 work.
The question is why only one 30B member has been will-
ing to take that step.
The most obvious answer is that, as discussed earlier, the
Union has made it known that 30B members are not per-
mitted to use the Local 30 halls. And, indeed, I conclude
that, prima facie, 30B members qualified for Local 30 work
would have applied for work at the Local 30 halls had the
Union not communicated the message that the Local 30 halls
were off-limits to 30B members.
The Union argues, in response, that the only 30B members
who are qualified as commercial roofers already have good
jobs (albeit at 30B pay rates) as members of the permanent
staffs of roofing contractors. The reason they have not used
the Local 30 hiring halls, this argument continues, is that
they prefer their present positions. But the argument is spu-
rious for two reasons. The first is that it is wholly specula-
tive. It would have been a simple matter for the Union to
have called some of those 30B members to the witness stand
in order to determine whether the hypothesis was accurate.
The Union chose not to do that. The second is that, as the
discussion in section III shows, I do not agree with the
Union that the only 30B roofers qualified to do commercial
work are those on the permanent staffs of roofing contrac-
tors.
I need go no further to conclude, as I do, that it has been
the Union’s discrimination that has caused the 30B members
not to seek work through the Local 30 hiring halls.
But there are two sets of facts not yet discussed that are
worth some attention in this respect.
One has to do with Suda’s entry in the Philadelphia Local
30 hall in June 1989. As will be discussed in the next part
of this decision, that effort on Suda’s part resulted in his
being told that in no event would he be referred out of the
Local 30 hall, being cursed at and otherwise verbally at-
tacked, getting punched, and getting pushed out of the hall.
It is altogether unlikely that that episode went unnoticed
among the 30B membership, and it alone would explain the
absence of 30B members in the Local 30 hiring halls since
June 1989.
The second set of facts are those set out in a decision by
District Judge Louis C. Bechtle in a civil RICO action
against Local 30 and 13 individuals, all of whom were either
officers or employees of Local 30. U.S. v. Roofers Local 30,
686 F.Supp. 1139 (E.D.Pa.1988), affd. 871 F.2d 401 (3d Cir.
1989), cert. denied 110 S.Ct. 363 (1989).11
Judge Bechtle found that on numerous occasions in the 20-
year period 1968 through 1987, members of Local 30, or
persons operating on their behalf:
- firebombed and otherwise violently destroyed the
property of roofing contractors who, for one reason or
another, had disagreements with the Union. On one oc-
casion the destruction was effected via the massed ef-
forts of about 1,000 men.
- savagely beat individuals associated with such compa-
nies (sometimes their owners, sometimes their employ-
ees), on occasion with rocks, clubs, axes, and/or mon-
key wrenches. The injuries resulting from such beatings
included broken facial bones, broken ribs, punctured
eardrums, and permanent neurological damage.
- threatened disfavored roofing contractors and employ-
ees with death and/or grave physical injury and with
destruction of their property.
The Union’s membership often made it clear that it sup-
ported these methods of persuasion. For instance:
- the Union paid for and installed a plaque at the Union
hall that honored eleven members convicted of destroy-
ing a non-union contractor’s property.
- when union members were convicted and imprisoned
for some of the above activities, the Union made pay-
ments to them and/or their families during their periods
of incarceration.
- the Union’s membership voted to allow some of the
union’s business agents accused of such conduct to
keep their union-supplied automobiles ‘‘if trial goes
against them.’’
Based on the facts outlined above, along with many others
spelled out in his decision, Judge Bechtle found that—
many members of the Union as well as many contrac-
tors and subcontractors . . . fear attending meetings at
the Union Hall. Their fear is that if they go to the
Union Hall to resolve a dispute or problem or to nego-
tiate a contract they will be outnumbered, intimidated,
threatened with physical violence and/or physically
beaten.
The court finds that such fear is actual, legitimate,
and well-founded.
Such fear stems from, inter alia, (1) the undemo-
cratic and brutal policies and practices of the former of-
ficers of the Union; (2) the perception that at least some
1379TRI-COUNTY ROOFING
12 In this regard, see sec. VIII, infra, regarding the power of
exunion head, Steve Traitz, well after he had left union office and
had been convicted of numerous felonies.
13 See, e.g., fn. 17, infra.
14 The Union does not deny that Lowry and Conway are its agents.
The Union does claim that Hamilton was not an agent of the Union
and that in Lowry’s altercation with Suda, Lowry was not acting in
his capacity as an agent. I do not consider the Union’s contention
regarding Lowry to be a serious one. As for Hamilton, the Union
placed him in immediate charge of the process by which job appli-
cants signed in. As such, the Union cannot escape responsibility for
statements made by Hamilton to a job applicant, Suda, as Suda was
signing in and that related to the signing in process.
of the former officers are still running the Union;12 (3)
the failure of the newly elected officials and appointed
business agents to repudiate the physically violent and
otherwise coercive policies and practices of the Union’s
corrupt former officers; and (4) in some cases, the per-
manent physical and mental scars of outnumbered per-
sons who suffered physical beatings at the hands of
hired goons and trained boxers at the Union Hall.
None of the violence described by Judge Bechtle stemmed
from hiring hall incidents. But recall Judge Bechtle’s finding
that—
many members of the Union . . . fear . . . that if they
go to the Union Hall to resolve a dispute or problem
. . . they will be outnumbered, intimidated, threatened
with physical violence and/or physically beaten.
All of the violence described by Judge Bechtle occurred
prior to the time period of concern to us here, and, even tak-
ing into account the treatment of Suda at the Local 30 hiring
hall, I make no finding that the Union continued, in the years
after 1987, to consider violence to be an acceptable way of
gaining its objectives.
On the other hand, Judge Bechtle found that the union of-
ficers who took office in 1987 had close ties to the exofficers
who had been convicted of numerous crimes.13 Most of the
officers who were elected in 1987 remain the Union’s offi-
cers.
Given the Union’s past predilection for using axes, mon-
key wrenches, and the like on persons who did not heed the
wishes of the Union’s officers, given the close relationship
between many of the current officers of the Union and the
persons whom Judge Bechtle found to have so violently vio-
lated the law, and given the Union’s message to the effect
that 30B members are not to use the Local 30 halls, it is no
surprise—to say the least—that 30B members have stayed
away from the Local 30 halls.
VI. DAVID SUDA’S ATTEMPT TO USE A LOCAL 30 HALL
Suda began working as a roofer in 1973 and has been a
journeyman member of Local 30B since 1979. In keeping
with the way things are done at the Union, until June 29,
1989, whenever Suda sought a job referral through the
Union’s hiring halls, he used the 30B hiring halls. But on
that day, in an act of stunning courage, Suda walked into the
Local 30 hiring hall in Philadelphia, approached the hall’s
dispatcher, Thomas Hamilton, and asked to to sign the work
list.
Hamilton initially refused to allow Suda to do so, telling
Suda to use the 30B hall. When Suda insisted, Hamilton did
allow Suda to sign the list. But Hamilton stated to Suda that
whether or not Suda’s name was on the list, Suda was not
going to be referred out of the Local 30 hall to a job.
Hamilton did not inquire into Suda’s qualifications as a
commercial roofer. He did not ask Suda about his job his-
tory. Rather, the only fact that he focused on was that Suda
was a member of 30B, not of Local 30.
Notwithstanding Hamilton’s statements to him, Suda re-
mained in the Local 30 hiring hall, sitting quietly.
About a half hour later Union Business Agent Thomas
Lowry arrived at the hall and saw Suda, whom Lowry knew
to be a 30B member and a political opponent of the union
officers to whom Lowry owed allegiance. Lowry’s response
was to stride rapidly over to where Suda was sitting, stop
within 2 or 3 feet of Suda, and in an expletive-filled shout,
order Suda to get out of the Local 30 hiring hall and to ‘‘go
back to 30B where you belong.’’
Suda snarled back that he had as much right to be there
as anyone else and that if Lowry wanted him out of the hall
Lowry would have to put him out. Suda then jumped to his
feet, bumping into Lowry (because Lowry had placed him-
self so close to Suda). Suda’s response was as filled with
expletives as Lowry’s had been.
A short-lived fight began. As usual in such circumstances,
it is impossible to be sure exactly what happened next. But
based on my evaluation of the witnesses and of the record
as a whole, the likelihood is that Lowry, reacting to the
bump from Suda and to Suda’s words and tone of voice,
socked Suda in the jaw, hard. Suda responded by tackling
Lowry, and the two crashed against a wall, then onto the
floor, where they continued to fight.
The other men in the room (who were there awaiting job
referrals) quickly stepped in and separated Suda and Lowry.
At that point, with the fight stopped, Union Vice President
Conway, who had been in the Union’s office (the next room)
stepped over to Suda and told Suda to get out of the Local
30 hall and that job referrals were available to Suda out of
the 30B hall. Conway interspersed those words with
expletives.
The episode at the hall ended with Lowry and Conway,
and perhaps others, pushing Suda out of the Local 30 hall.14
The Union presented a half-dozen reasons why it’s agents’
behavior toward Suda was justified.
One contention of the Union is that it was Suda who start-
ed the fight, not Lowry, so that it was appropriate to throw
Suda out of the hall. But I have found that it was Lowry
who started the fight. First, by rushing at Suda while loudly
voicing the (unlawful) demand that Suda leave the Local 30
hiring hall. And second, by punching Suda.
Second, the Union argues that Suda’s motivation for enter-
ing the Local 30 hall was to cause trouble, not to obtain a
job. The Union points out, in this respect, that Suda had run
for union office and that he had just learned (through a bal-
lot-count on June 28) that he and the other candidates on his
slate had lost. But Suda’s motivation for asking for a job re-
ferral is irrelevant to the question of whether the Union could
lawfully refuse Suda access to the Local 30 hiring hall. Con-
sidering Suda’s motivation anyway, the probability is that
Suda sought a job referral from the Local 30 hall not because
he expected to get one; rather, his intent was to make evident
1380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 Suda appealed to the International from the trial board’s deci-
sion, paying a deposit of $250 pending disposition of the appeal.
The International has not acted on Suda’s appeal.
(and thus amenable to proof at a hearing) what the Union’s
members already knew—that the Union had a policy of not
permitting its 30B members to use the Local 30 hall. That
motive on Suda’s part, however, is hardly one that the Board
should condemn.
The Union’s other claims concerning the response of its
agents toward Suda at the hiring hall are that Suda did not
present his qualifications to Hamilton when Suda asked to
sign the job referral list, that Suda is not qualified as a com-
mercial journeyman roofer, and that Suda’s job history shows
him to be an unsatisfactory employee.
But neither Hamilton, nor Lowry, nor Conway asked Suda
for proof of his qualifications or said that Suda would not
be referred out because of his lack of knowledge of or expe-
rience at commercial roofing or referred to Suda’s job his-
tory. Rather, the record is utterly clear that their sole reason
for refusing Suda access to Local 30 jobs and ordering Suda
to leave the hiring hall was that Suda is a member of the
Union’s 30B side rather than its Local 30 side and, possibly
(in Lowry’s case), that Suda was a political opponent of the
Union’s incumbent officers.
I nonetheless will consider the substance of the Union’s
contentions in these respects.
As far as Suda not submitting qualifications to Hamilton,
as indicated earlier, the General Counsel proved that Ham-
ilton did not ask Suda for evidence of his qualifications. And
the Union has not proved that the way that Suda checked in
at the hiring hall was any different from any other of the job
applicants.
As for Suda’s qualifications as a commercial roofer, his
testimony in this proceeding, and that of several other wit-
nesses, shows that Suda is an expert commercial roofer.
Finally, there is the matter of whether Suda’s job history
shows him to be an unsatisfactory employee. The record
does show that, while Suda is an expert, hard working em-
ployee, he insists on doing things his way. When Suda’s way
is different from that of his employer, conflicts result. A con-
sequence of that is that Suda tends not to remain in any com-
pany’s employ for a long time. But that does not add up to
a record that makes Suda unemployable. And the Union has
not shown that it has a practice of refusing to refer out of
the hiring hall employees with records comparable to Suda’s.
I conclude that the Union refused to give Suda access to
the Local 30 exclusive hiring hall in Philadelphia solely be-
cause Suda is a member of 30B and not of Local 30. The
Union thereby violated Section 8(b)(1)(A) and (2). Teamsters
Local 293, supra; Teamsters Local 519, supra; Plumbers
Local 198, supra.
In addition, Lowry’s assault on Suda separately constitutes
a violation of Section 8(b)(1)(A)—whether the reason for the
assault was solely because Suda was seeking a job referral
out of the Local 30 hiring hall or because, in addition, Suda
was a political opponent of the Union’s leadership.
VII. THE UNION’S IMPOSITION OF A FINE ON SUDA
Suda’s attempt to gain a job referral from the Local 30
hall, and the ensuing fight, occurred on June 29, 1989. On
the following day, June 30, a political ally of Suda’s, Local
30 member Michael Sullivan, sent a letter to the Union
charging that the actions of Hamilton, Conway, and Lowry
violated the Union’s constitution and bylaws in various re-
spects.
On July 18 Lowry filed intraunion charges against Suda,
claiming that Suda attacked Lowry and that Suda’s attack
was ‘‘totally unjustified and made without any cause whatso-
ever.’’
The Union’s recording secretary responded to both sets of
charges by setting August 29 as the date of a hearing before
the Union’s trial board.
Suda did not appear at the intraunion hearing. Nor did
anyone on his behalf. (At the hearing in this proceeding Suda
testified that he was afraid that, had he appeared before the
trial board, he would have been attacked. I credit that testi-
mony.)
Lowry, and others on Lowry’s behalf, did appear at the
intraunion hearing. And on September 15 the trial board
issued its decision. The trial board concluded that Suda’s
charges had to be dismissed, since there was no evidence to
support them, and that Lowry’s charges had been proven.
Specifically, the trial board found that ‘‘Brother Suda insti-
gated the altercation with Brother Lowry and that Brother
Lowry did not engage in physical assault upon Brother Suda,
but rather was attacked by Brother Suda.’’ The trial board
went on to impose a $1000 fine on Suda.15
The General Counsel claims, and I agree, that by imposing
that court-collectible fine on Suda, the Union violated Sec-
tion 8(b)(1)(A).
My conclusion in this respect hinges on Lowry’s
intraunion charge. For it is clear that a union violates the Act
if its agent files an intraunion charge against a fellow union
member where a basis of that charge is activity by that fel-
low union member that is protected by the Act. E.g., Mine
Workers Local 1058 (Beth Energy), 299 NLRB 389 (1990),
revd. on other grounds 957 F.2d 149 (4th Cir. 1992).
I will assume, for purposes of this part of the decision,
that Lowry could honestly believe: that in telling Suda to
leave the hiring hall, Lowry spoke in modulated, nonaggres-
sive tones (as Lowry testified at the hearing in this pro-
ceeding); and that it was Suda, not Lowry, who struck the
first blow. But it is undisputed, even by Lowry, that it was
Lowry who approached Suda, not the other way around; that
Lowry did so in his role as business agent; and that Lowry
told Suda that Suda belonged in the 30B hiring hall, not the
Local 30 hall.
Under these circumstances, it is evident—notwithstanding
the pro-Lowry assumptions—that the Lowry-Suda incident
occurred only because Lowry, an agent of the Union, told
Suda to leave the Local 30 hiring hall, thereby violating
Suda’s Section 7 rights.
Thereafter Lowry filed his charge against Suda, claiming
that, as noted above, Suda’s attack was ‘‘totally unjustified
and made without any cause whatsoever.’’ The resulting trial
board ruling referred to Suda’s attack on Lowry, said nothing
about Lowry’s violation of Suda’s Section 7 rights, and im-
posed a hefty fine on Suda.
The net effect of the Union’s action clearly was to restrain
and coerce employees in the exercise of their Section 7
rights, and thus violate Section 8(b)(1)(A). Indeed, any
intraunion action that purported to be an investigation into
the Lowry-Suda incident and that did not explicitly notify
1381TRI-COUNTY ROOFING
16 The events under consideration here occurred prior to Suda’s at-
tempt to obtain employment at the Local 30 hiring hall in Philadel-
phia. I have presented the events out of chronological sequence in
the hope that the facts presented in this order may be somewhat easi-
er for the reader to follow than a strictly chronological version.
17 Soliciting kickbacks, embezzlement from an employee benefit
plan and from the Union’s prepaid legal services fund, bribery of
public officials, extortion, collecting unlawful debts for an organized
crime family, mail fraud, and a RICO violation.
Suda that Lowry, as an agent of the Union, was wrong in
telling Suda to leave the Local 30 hiring hall and that did
not assure Suda of his right to use the Local 30 hiring hall
for job referral purposes, would be a violation of Section
8(b)(1)(A). That is because any ruling that did not do so
would inevitably restrain Suda and similarly situated employ-
ees from seeking employment through the Local 30 hiring
halls.
I need not reach the question of whether, had the trial
board assured Suda of his right to use the Local 30 hall, the
trial board could have lawfully disciplined Suda for what it
found to be Suda’s assault on Lowry.
VIII. LOCAL 30’S ROLE IN ACE/TRI-COUNTY’S DISCHARGE
OF SUDA16
A. The Facts
When the circumstances that are about to be discussed
began, the Employer whose actions we are concerned with
was named Tri-County Roofing. But Ace Roofing & Sheet
Metal purchased Tri-County’s assets in December 1988. Be-
cause Ace and Tri-County admit that they are alter egos of
one another, there is no need to identify which acts were un-
dertaken by Tri-County, which by Ace. I accordingly will
refer to ‘‘Ace/Tri-County.’’
Ace/Tri-County has long been a party to collective-bar-
gaining agreements with Local 30. In August 1988 Suda was
hired by Ace/Tri-County, notwithstanding the fact that Suda
is a 30B journeyman. Late in December the Union ordered
Suda to leave the employ of Ace/Tri-County. A few days
later Ace/Tri-County laid off Suda and has never recalled
him. The General Counsel contends, and I agree, that the
Union’s demand that Suda leave Ace/Tri-County was unlaw-
ful, that it was the Union’s demand that Suda leave Ace/Tri-
County that caused that employer to lay off, and not recall,
Suda; and that Ace/Tri-County thereby violated Section
8(a)(3) and (1).
John Traitz is an Ace/Tri-County foreman and an admitted
supervisor. His wife is a part-owner of the company. As we
shall see, Suda’s stint at Ace/Tri-County is connected to the
fact that John’s brother is Steve Traitz Jr.
Until 1987 Steve was the business manager of Local 30
and, therefore, its chief executive. (See sec. IV, supra, for
further reference to Steve Traitz.) But in November 1987
Steve was convicted of an array of crimes17 and was sen-
tenced to, inter alia, 15 years imprisonment. In December
1987 Joseph Crosley succeeded Steve as business manager.
Crosley remains in that position.
In August 1988 an altercation erupted between John’s side
of the family and Steve’s. Steve responded by telling John
that John’s roofing business was about to come to an end.
Sure enough, notwithstanding the fact that Steve no longer
held any position with the Union, and notwithstanding the
fact that Steve was a convicted felon, most of Ace/Tri-Coun-
ty’s roofing crew forthwith left Ace/Tri-County’s employ.
Moreover the Company was unable to obtain replacements
through the Union’s hiring halls.
In the 1987 election Local 30 member Michael Sullivan
had unsuccessfully sought union office at the head of a slate
opposed to the Joseph Crosley slate. John Traitz, who was
desperate for roofing employees for his company, heard
about Sullivan and asked Sullivan for help in providing
Ace/Tri-County with roofers. (Henceforth my references to
‘‘Traitz’’ will be to John Traitz.) Suda had supported Sul-
livan. Sullivan got in touch with Suda and three other roof-
ers, all four of whom went to work for Ace/Tri-County early
in September 1988. (Suda was the only 30B journeyman of
the four. The other three held Local 30 books. Ace/Tri-Coun-
ty knew of Suda’s 30B membership.) The Union’s hiring
halls, of course, were not used to effect the employment.
In November 1988 Ace/Tri-County laid off the three roof-
ers who had came to the Company when Suda did. The rea-
son for their layoff: The three were, in Traitz’ view, incom-
petent, and work had slowed for the Company. Suda contin-
ued in the Company’s employ.
But about that same time a member of the Union filed
intraunion charges against Suda. The charges focused on the
fact that Suda obtained employment at Ace/Tri-County with-
out going through Local 30’s hiring hall. Suda told Traitz
about the charges and also told another of the Company’s su-
pervisors, Tom Cinaglia. Traitz told Suda not to worry about
the charges, that he, not the Union, did the hiring and firing
at Ace/Tri-County.
A union trial board held a hearing in the matter on No-
vember 21, at which Suda testified. On December 29 the trial
board issued its decision, ruling that Suda violated union re-
quirements by, as a 30B journeyman, taking a Local 30 job
and by obtaining the job other than through the Union:
as a member of Local 30B, Brother Suda had no right
to solicit or obtain his own employment on a Roofers
Local 30 job. The effect of his actions was to deprive
members of Roofers Local 30 of an employment oppor-
tunity.
In the future, the decision continued, Suda ‘‘must comply
with the distinction between Roofers Local 30 and Roofers
Local 30B and must also comply with the provisions of the
collective-bargaining agreement requiring members to use the
Union’s hiring hall.’’ Suda was fined $200.
Ace/Tri-County laid off Suda a day or two after the trial
board handed down its decision.
There is no doubt that the trial board decision was a rea-
son for Ace/Tri-County’s termination of its employment of
Suda.
When Suda received the trial board’s decision in the mail
(on the last day or so of December or early in January), he
telephoned Cinaglia (the Ace/Tri-County supervisor), told
Cinaglia what the trial board had ordered, and asked
Cinaglia, ‘‘what are we going to do?’’ Cinaglia responded,
essentially, that: Ace/Tri-County has ‘‘got to go by the
[Union’s] decision’’; Suda would thus have to cease doing
commercial roofing for the Company; while the Company
might perhaps have a little shingling work for Suda (as noted
earlier in this decision, the Union considers shingling to be
1382 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 Regarding burden of proof issues, see Wright Line, 251 NLRB
1083, enfd. 662 F.2d 899 (1st Cir.), cert. denied 455 U.S. 989, ap-
proved in NLRB v. Transportation Management Corp., 462 U.S.
393.
30B work), Suda had better go back to the 30B hiring hall
for a job referral; and Cinaglia would call Suda back with
more information. But neither Cinaglia nor anyone else from
the company ever again contacted Suda or responded to
Suda’s calls to the Company.
It should be noted that Cinaglia is a member of Local 30
and is entirely familiar with the Union’s practice of pre-
cluding 30B members from using the Local 30 hiring halls.
The question is whether Ace/Tri-County would have ter-
minated Suda even had the Union not ordered Suda to leave
Ace/Tri-County’s employ.
John Traitz testified that he was the one who decided to
lay off Suda and that he made that made that decision solely
for two work-related reasons. One, said Traitz, was that the
Company was entering a slow period. The other reason,
Traitz testified, had to do with Suda’s attitude—Suda simply
would not follow certain types of orders.
I conclude that Ace/Tri-County failed to prove that it
would have terminated Suda’s employment even absent the
Union’s demand that Suda leave Ace/Tri-County.18
Turning first to the amount of work needed to be done at
Ace/Tri-County, winter does tend to be a slow time for roof-
ing contractors, and Ace/Tri-County’s records show that the
number of hours worked by its roofing employees fell to a
low point the week that Suda was terminated. But the Com-
pany failed to call as a witness the only member of its man-
agement knowledgeable about what projects Ace/Tri-County
had scheduled at the time Suda was terminated. Beyond that,
within days after Ace/Tri-County terminated Suda, it began
to hire new employees. (Ace/Tri-County and the Union had
just reached a rapprochement and the Union was once again
making its Local 30 hiring halls available to Ace/Tri-Coun-
ty.) The Company made no attempt to show that it had rea-
son to believe that all of those new employees could handle
the available work better than Suda could.
As for Suda’s attitude, it is clear that, as noted earlier,
Suda likes to do things his way, rather than his foreman’s—
that sometimes, indeed, Suda virtually insists on doing things
his way. In particular, Suda repeatedly squabbled with his
foremen at Ace/Tri-County over the fact that Suda refused to
wear gloves even though the roofing material that Ace/Tri-
County uses (a kind of asphalt) is heated to nearly 500 de-
grees Fahrenheit. On the other hand, Suda is a smart, knowl-
edgeable, and experienced roofer who works hard and fast.
The record specifically shows that Traitz knew that Suda
‘‘really hustle[d]’’ as a Ace/Tri-County employee. Recall,
moreover, that as of the end of December 1988, Suda had
been with Ace/Tri-County for about 4 months. And the
record fails to show that Suda’s attitude changed for the
worse just before it laid him off.
Suda appealed to the Roofers Union International from the
trial board’s decision. On March 1, 1989, the International
overturned the trial board’s imposition of a fine.
B. Conclusion—Local 30’s Role in Ace/Tri-County’s
Discharge of Suda
The Union violated the Act in two obvious respects. The
first was in ordering Suda to comply with an unlawful prohi-
bition—that 30B members may not take Local 30 jobs. The
second was in ordering Suda to comply with exclusive hiring
hall requirements in circumstances in which the hiring hall
was being operated unlawfully.
Did the Union cause Suda to lose his job with Ace/Tri-
County? The Union argues that it did not, pointing to the ab-
sence of any evidence of communications by the Union to
Ace/Tri-County regarding Suda. But the Union wanted Suda
to leave his job with Ace/Tri-County and, in fact, ordered
him to do so. Had Suda left pursuant to that order, the Board
would hold the Union responsible for his departure: Iron
Workers Local 111 (Steel Builders), 274 NLRB 742 1985;
Sachs Electric Co., 248 NLRB 669 (1980). The Union can
hardly be deemed less responsible where the employee, pre-
dictably concerned about the Union’s order, discusses it with
his employer who then fires the employee.
As for Ace/Tri-County, it terminated Suda’s employment
in order to avoid what its management perceived would oth-
erwise be a conflict with the Union. Since Ace/Tri-County
knew, or had reason to know, that the Union’s demand that
Suda leave Ace/Tri-County was an unlawful one, Ace/Tri-
County thereby violated Section 8(a)(3) and (1). Wolf Trap
Foundation, 287 NLRB 1040 (1988); DuBose Masonry, 279
NLRB 909 (1986).
Local 30 and Ace/Tri-County are accordingly jointly and
severally liable for Ace/Tri-County’s discriminatory dis-
charge of Suda. E.g., Wolf Trap Foundation, supra.
IX. THE ABSENCE OF OBJECTIVE STANDARDS FOR
REFERRAL FROM THE HIRING HALL
The Union deems all members of Local 30 to have the
qualifications necessary to be referred from the Local 30 hir-
ing hall. The Union also apparently deems any journeyman
member of another Roofers local union (not including 30B)
to be qualified. And any participant in the Local 30 appren-
ticeship program is eligible to referred out of the hall (to ap-
prentice positions, of course), whether or not the participant
is a member of the Union.
But the Union maintains no standards by which any other
roofer might qualify for referral from any Local 30 hiring
hall. There is no real dispute about that. For example, here
is yet another exchange between counsel for the General
Counsel and Union Vice President Conway:
Q. Mr. Conway, it is true, is it not, that there is no
mechanism by which a Local 30B member can dem-
onstrate his or her qualifications to work on commercial
jobs so as to be able to get referrals out of the Local
30 hiring hall?
A. Not at the present there isn’t.
Q. And there hasn’t ever been during the time that
you have been involved?
A. Not to my knowledge.
As discussed earlier, since December 1988 the Union has
maintained a 5000-hour standard for acquiring journeyman
1383TRI-COUNTY ROOFING
19 The only arguably relevant allegation (in par. 13 of the com-
plaint) reads:
Since on or about September 20, 1988, and continuing to the
present time, the Respondent Union has conditioned referral of
employees for employment as commercial roofers or residential
roofers to employer-members of the RSMCA or RMHA, respec-
tively, on the membership status of the employees in the Re-
spondent Union and on arbitrary and discriminatory consider-
ations.
20 See the previous footnote.
membership in the Union. But that is a standard for quali-
fying for membership in the Union, not for referral from
Local 30 halls. That is apparent from the language of the
union executive board resolution that created the 5000-hour
rule:
Regardless of previous practices and without any ex-
ceptions, 5000 hours will be required for consideration
to receive a union book in both unions [i.e., Local 30
and 30B].
(As discussed in the previous parts of this decision, a 30B
book entitles the holder to use only the 30B hiring halls, not
the Local 30 halls.)
Local 30’s president, Thomas Pedrick, did testify that the
Union would use the 5000-hour rule as a way of qualifying
30B members to use the Local 30 hiring halls. But: (1) the
resolution does not say that; (2) no 30B member has ever
been qualified via that route for a Local 30 job; and (3) as
just indicated, Conway’s testimony shows that there is ‘‘no
mechanism by which a Local 30B member can demonstrate
his or her qualifications to work on commercial jobs so as
to be able to get referrals out of the Local 30 hiring hall.’’
In any case, even taking Pedrick’s testimony at face value,
the standard would hardly be objective. That testimony
shows that while all hours worked by members of Local 30
automatically go toward the 5000-hour requirement, the
Union presumes that 30B hours involve residential work, not
commercial. So any 30B members wanting access to the
Local 30 halls would have carry a ‘‘burden of proof,’’ as
Pedrick put it, in order to convince the Union that they had
spent their roofing hours on commercial work.
In sum, it appears that the Union has no objective stand-
ards whatever for determining eligibility for referral from the
Local 30 hall (except for the aforesaid membership in Local
30, membership in other Roofers locals (not including 30B),
and participation in the Local 30 apprenticeship program).
This lack of objective standards constitutes a violation of
Section 8(b)(1)(A) and (2):
In considering whether an exclusive hiring hall is op-
erated in an arbitrary manner, the absence of written
rules, although not alone determinative, is evidence of
the unfairness of the system . . . . But the absence of
any standards, written or otherwise, normally will result
in a violation of 8(b)(1)(A) and (2) of the Act for it es-
tablishes a breach of the Union’s duty of fair represen-
tation which causes an employer to discriminate against
referral applicants. [Longshoremen ILA Local 1426
(Wilmington Shipping), 294 NLRB 1152, 1156 (1989).]
The only real issue, in this respect, is whether the matter
has been litigated. The complaint does not specifically ad-
dress the Union’s lack of hiring hall standards in those para-
graphs alleging violations of the Act.19 And while the Gen-
eral Counsel did frequently refer to this lack of standards
throughout the hearing, and on brief, the thrust of those ref-
erences was to show that the Union discriminates against its
30B members in the operation of its Local 30 hiring halls
(as I have found to be the case).
But the complaint not only alleges violations of the Act;
it also proposes remedies for those violations. And one of
those remedies is that the Union be required to ‘‘maintain
and operate the exclusive job referral system in a non-
discriminatory manner based on objective standards and cri-
teria.’’ (Emphasis added.)
In view of the repeated discussion during the hearing
about the lack of criteria and standards for qualifying em-
ployees for referral from the Local 30 hiring halls, and in
view of the fact that the Union was on notice that the Gen-
eral Counsel would urge, as a remedy, that the Board require
the Union to adhere to ‘‘objective standards and criteria,’’ I
conclude that the Union had ample reason and opportunity
to respond to the evidence adduced by the General Counsel
concerning the lack of standards and criteria.
X. OTHER MATTERS
A. Discrimination Against Nonunion Employees
As discussed above, the record shows that the Union con-
siders only three categories of employees to be eligible for
referral out of the Local 30 halls: Local 30 members; partici-
pants in the Local 30 apprenticeship program; and members
of other Roofers local unions. The General Counsel’s effort
in this proceeding has been to show that that is so, and to
show that, as a result, the Union has discriminated against
its 30B members. But that same evidence suggests an addi-
tional conclusion: that the Union also discriminates against
employees who are not members of any Roofers union. And,
needless to say, if the Union has discriminated against non-
union employees in the operation of the Local 30 hiring
halls, it has thereby violated Section 8(b)(1)(A) and (2) of
the Act. E.g., Longshoreman ILA Local 1423, supra.
A paragraph of the complaint does arguably cover hiring
hall discrimination by Local 30 against nonunion employ-
ees.20 And the Union has nowhere even hinted that nonunion
employees have access to the Local 30 hiring halls. But at
no time in this proceeding has the General Counsel con-
tended that the Union discriminates against nonunion em-
ployees in the Local 30 hiring halls, and the General Counsel
has not adduced any evidence specifically pointing in that di-
rection.
I accordingly do not consider myself in a position to con-
clude that the Union has violated the Act by discriminating
against nonunion employees in the operation of the Local 30
hiring halls.
B. Local 30’s Policy of not Permitting Members of
Local 30B to Work on the Same Crews with Members
of Local 30
The installation of commercial roofs is done by crews of
roofers. (Commercial roofing crews range in size from 5 em-
ployees to 25, with the typical crew made up of between 7
and 12 roofers.) It is Local 30’s policy not to permit mem-
bers of Local 30 and 30B to work on the same crew.
1384 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Here, again, is counsel for the General Counsel ques-
tioning Conway:
Q. So what you are saying then is, even if Local 30B
men were qualified to [work for RSMCA employers],
you can’t see any way in which the 30B men could be
mixed with the 30 crews?
A. None at all.
The Union has made that policy known to employers with
which the Union has contractual relationships. Here, for ex-
ample, is the testimony of Gary Wolfe, of Wolfe Roofing
and Sheetmetal, Inc. (Wolfe Roofing employs both Local 30
and 30B roofers.)
Q. Now, does the company have a policy regarding
mixing Local 30 and Local 30B roofers in the same
work crew?
A. The company does not have a policy.
Q. Well, is it something that you do or do not do?
A. We do not mix them.
Q. And, why is that?
A. We’ve been told not to by representatives from
Local 30 and 30B.
A union policy of that nature would appear to be inher-
ently arbitrary, invidious and discriminatory, and would ap-
pear necessarily to restrain and coerce employees in the exer-
cise of their Section 7 rights. Again, however, the matter
does not seem to me to have been litigated, and thus I am
not in a position to conclude that, because of this policy, the
Union has violated the Act.
XI. MISCELLANEOUS UNION DEFENSES
A. Laches
Both the Union and Ace/Tri-County raise, in their an-
swers, the defense of laches, citing the 23-month period be-
tween the filing of the original unfair labor practice charge
and the issuance of a complaint. But ‘‘laches do not lie
against the General Counsel for negligent delay.’’ Consoli-
dated Casinos Corp., 266 NLRB 988, 992 (1983). Accord:
Merril M. Williams, 265 NLRB 506, 508 (1982).
I have considered, nonetheless, whether, for some reason,
either the Union or Ace/Tri-County was prejudiced by the
delay. But no facts showing this to be the case have been
either pleaded or proven.
It is true that one of the Union’s possible witnesses,
Thomas Hamilton (the Local 30 hiring hall dispatcher), died
in the interval between the filing of the charge and the hear-
ing herein. But the Union’s answer (the same one that raises
the laches defense) states that Hamilton died in August 1989,
just 5 months after the original unfair labor practice charge
was filed and, in a case as complex as this one, before the
hearing could have reasonably been held.
B. The Supervision of the Union’s Hiring Halls by a
U.S. District Court
The answers of the Union and Ace/Tri-County also raise
as an affirmative defense that the ‘‘Union’s hiring hall is
being operated under the supervision of the United States
District Court for the Eastern District of Pennsylvania pursu-
ant to a decree entered by that Court on May 23, 1988, in
an action captioned as ‘‘U.S. v. Roofers Local 30.’’
The facts thus pleaded are accurate. In section V, supra,
I discussed at some length the findings of Judge Bechtle in
a civil RICO case against, inter alia, Local 30. In that case
Judge Bechtle, by decree, imposed a ‘‘decreeship’’ upon the
Union and appointed a chief court liaison officer (CCLO) to
‘‘serve as the principal liaison officer of all provisions of the
Decree.’’ In March 1991 the CCLO asked the district court
for an order covering the Union’s hiring hall referrals. The
court ordered a hearing on this proposal for May 29, 1991.
(At the Union’s urging, I responded to that order of the dis-
trict court by postponing the hearing in this proceeding.) But
that district court hearing was postponed (because the Union
changed counsel), and I ordered the hearings in this pro-
ceeding to get underway. Thereafter the district court hear-
ings were postponed indefinitely.
Unquestionably there is considerable overlap in the juris-
diction of the Board and of the district court in respect to
the matters under consideration in this proceeding, and, also
unquestionably, the CCLO has expressed his concern to the
district court (pursuant to the decreeship) about many of the
matters under consideration here. But it is not apparent to me
why that calls for the dismissal of, or even a halt to, this pro-
ceeding. Further, the Respondents could have, but (so far as
I have been informed) did not, raise this contention with
Judge Bechtle.
CONCLUSIONS OF LAW
1. The Respondents Tri-County Roofing, Inc. and Ace
Roofing & Sheet Metal, Inc., are alter egos of one another
and are employers engaged in commerce within the meaning
of the Act.
2. Roofers local unions 30 and 30B together constitute one
labor organization.
3. The Union operates exclusive hiring halls by virtue of
its collective-bargaining relationship with an association of
employers, the RSMCA.
4. By informing David Suda and other members of Local
30B that, solely because they were members of 30B and not
of Local 30, they were not permitted to seek job referrals
from Local 30 hiring halls, the Union violated Section
8(b)(1)(A) of the Act.
5. By preventing David Suda and other employee-members
of Local 30B from obtaining jobs with members of the
RSMCA because such employees were members of Local
30B and not of Local 30, the Union violated Section
8(b)(1)(A) and (2) of the Act.
6. By assaulting David Suda, through its agent Thomas
Lowry, because Suda sought a job referral from a Local 30
hiring hall, the Union violated Section 8(a)(1)(A) of the Act.
7. By imposing a fine on David Suda in circumstances in
which the imposition of that fine coerced and restrained Suda
and other members of 30B in respect to seeking job referrals
at Local 30 hiring halls, the Union violated Section
8(b)(1)(A) of the Act.
8. By causing the termination of Suda’s employment at
Ace/Tri-County because Suda was not a member of Local 30
and because Suda did not obtain such employment via Local
30 exclusive hiring halls, which hiring halls were operated
in an unlawful manner, the Union violated Section 8(b)(1)(A)
and (2).
1385TRI-COUNTY ROOFING
21 The RSMCA and the RMHA have proposed a plan to Judge
Bechtle pursuant to apprentice which ‘‘all current voting members
of Local 30 and 30B shall be deemed qualified journeyman roofers’’
(G.C. Exh. 61.) But that provision is part of a package that includes
terms that the General Counsel does not claim that the Board should,
or even could, order.
22 A possible cause for concern, in fact, is that RSMCA members
often obtain employees from the Local 30 hiring halls by having
their foremen select from among those employees awaiting job refer-
rals at the halls. Particularly since such foremen are often members
of Local 30, that procedure could result in a continuation of the dis-
criminatory treatment of 30B members even after merger of the
Local 30 and 30B lists.
9. By terminating Suda’s employment because of the
Union’s demand that Suda leave Ace/Tri-County in cir-
cumstances in which Ace/Tri-County knew, or had reason to
know, that the Union’s demand coerced and restrained Suda
in the exercise of his Section 7 rights, Ace/Tri-County vio-
lated Section 8(a)(3) and (1) of the Act.
10. Each of the foregoing unfair labor practices affected
commerce.
Remedying Local 30’s Discriminatory Exclusion of
Eligible 30B Members from the Local 30 Hiring Halls
The Union’s operation of its Local 30 hiring halls has vio-
lated the Act in blatant and wholesale fashion. This part of
the decision deals with the difficult questions of how to rem-
edy past wrongs in this respect and what steps would have
the best chance of ensuring that such violations cease.
A. Specifying Which 30B Members Should be Deemed
Qualified for Referral from the Local 30 Hiring Halls
The General Counsel urges that the Board order an end to
separate hiring halls for Local 30 members and 30B mem-
bers. Or, in the General Counsel’s words, the Board should
require the Union to ‘‘merge the work referral lists under the
RSMCA and RMHA contracts and maintain only one referral
list for all applicants seeking referrals for employment oppor-
tunities.’’
There are two significant problems with the General Coun-
sel’s proposal.
One is that there undoubtedly are some 30B members, per-
haps many, who are not competent commercial roofers.
A second is that, as far as the record in this proceeding
shows, the maintenance of a system providing for two dis-
tinct rates of remuneration (one for jobs out of the Local 30
halls, another for jobs out of the 30B halls) has served useful
purposes. It is not wholly clear that such a system could be
maintained if the Local 30 and 30B lists were merged. In
particular the 30/30B system provides the benefits of hiring
halls and a pool of skilled labor to employers whose business
is such that they might ordinarily have neither. (I refer to
roofing contractors operating in areas in which non-union
competition is strong.) Similarly, an end to the 30/30B sys-
tem might mean a net decline in the income of the Union’s
membership. I note, in these regards, that the record contains
no useful testimony about the possible effects of a merger of
the Local 30 and 30B lists on the shape and health of the
roofing industry in the geographic area in which the Union
operates.21
I nonetheless am adopting the General Counsel’s proposal
because so many considerations argue in its favor.
First, the extraordinary facts of this case demand equally
extraordinary remedial action by the Board. It is clear that
drastic steps are needed to remedy the many years of hiring
hall discrimination practiced by the Union, particularly in
view of the Union’s history of violence.
Second, in establishing nondiscriminatory standards for
qualifying employees for referral from its hiring halls (as the
recommended order requires the Union to do), the Union
can, and undoubtedly will, do so in a way that categorizes
its members for job referral purposes. Thus the problem of
referring to RSMCA members roofers who are incompetent
to handle commercial roofing tasks will cease just as soon
as the Union sees its way to adopting such nondiscriminatory
standards.
Third, other unions have been able to establish two or
more distinct rates of remuneration (depending upon the type
of work and/or the extent of nonunion competition), without
having to resort to a system that discriminates in wholesale
fashion against many of their own members.
Fourth, the Union’s own past actions make its predictions
of doom less than altogether persuasive. In particular: (1) the
Union has permitted some wholly inexperienced individuals
to become journeyman members of Local 30 and thus eligi-
ble for referral from its Local 30 hiring halls; and (2) the
Union has itself encouraged both RMHA and RSMCA em-
ployers to utilize 30B members for commercial roofing work
(in circumstances in which nonunion competition precludes
the use of Local 30 pay rates).
Fifth, roofing contractors needing 30B roofers for commer-
cial work routinely obtain these roofers via the 30B hiring
halls. Nothing in the record indicates that, even though some
30B members may have no commercial experience, any sig-
nificant problems thereby arise.
Sixth, while much commercial roofing work requires con-
siderable skill and experience, there is also a substantial
amount of unskilled and semiskilled work to do on any com-
mercial roofing project. (Pushing wheelbarrows, cleaning,
screwing down pads of insulation, and the like.) Should the
merged hiring hall lists result in an employer getting a roofer
who is inexperienced in commercial work, to some extent the
employer can deal with it by assigning those kinds of tasks
to that roofer.
Seventh, some residential roofing experience is transfer-
able to commercial roofing work.
Eighth, RSMCA members routinely: (1) ask for specific
employees when they call a Local 30 hiring hall; (2) advise
the hiring halls that they will not accept certain Local 30
members; and (3) promptly fire any members of Local 30 the
employers determine to be incompetent or otherwise incom-
patible with their work forces. Each of these procedures
ought to enable employers to avoid hardship stemming from
unqualified employees being eligible for referral from the
Union’s hiring halls as a result of a merger of the Local 30
and 30B lists.22
Ninth, more than half of the work of the 30B membership
is on commercial roofs. Thus it is not as though the General
Counsel is proposing to merge a roster of essentially residen-
tial roofers with one of commercial roofers.
And 10th, throughout the many months of this proceeding
the Union could have put forth a method for consideration
1386 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 See sec. IX, supra.
24 The General Counsel argues that backpay should be accorded
not only 30B journeymen but, in addition, 30B helpers for whom
field dues have been deducted. But the record fails to prove that
such 30B helpers would have been entitled to seek job referrals from
the Local 30 hiring halls even had the Union not discriminated
against its 30B side. I accordingly limit backpay to those 30B jour-
neymen described below.
by the Board by which its Local 30 hiring halls could be op-
erated nondiscriminatorily and which would obviate the Gen-
eral Counsel’s entirely appropriate concerns. In fact the
Union was invited to do so. But except for Pedrick’s obvi-
ously discriminatory 5000-hour proposal,23 the Union merely
dragged its heels.
B. Other Forward-Looking Affirmative Remedies
Regarding Operation of the Local 30 Hiring Halls
The General Counsel proposes that the Union be required
to maintain and operate its exclusive hiring hall system in a
nondiscriminatory manner based on objective criteria and
standards. In view of the Union’s violation of the Act in this
respect, that requirement is plainly an appropriate one. To it
I will add the requirement that such criteria and standards be
written and that upon their adoption they be posted in all of
the Union’s Local 30 hiring halls and that copies be mailed
to the Union’s 30B members and provided to the Regional
Director for Region 4 and to the chief court liaison officer
appointed pursuant to the decreeship discussed in section
XI,B, supra. (I am recommending that the hiring hall stand-
ards and criteria be mailed to the 30B members because of
my concern that the Union’s hiring hall discrimination
against its 30B members has become so institutionalized that
special steps are needed to make it clear to those members
that things have changed. I am also concerned that some 30B
members may be reluctant to visit any union facilities.)
The Union also will be required to:
(1) Maintain written records of its referrals from its Local
30 hiring halls for 2 years, with such records containing in-
formation sufficient to disclose the basis of referrals. The
recommended order requires the Union to make documents
available to the Regional Director and to the chief court liai-
son officer on the request of either.
(2) Submit four quarterly reports to the Regional Director,
due 10 days after the close of each calendar quarter subse-
quent to the issuance of this decision, with copies to the
chief court liaison officer, concerning referrals of 30B mem-
bers to employers that are members of the RSMCA; such re-
ports shall include the dates and numbers of applications
made by 30B members in Local 30 hiring halls.
(3) Place the referral lists in conspicuous places within the
Local 30 hiring halls for easy access and inspection by all
applicants seeking referrals for employment opportunities.
C. Backpay
The likelihood is that, for Suda and other 30B members,
the Union’s many years of hiring hall discrimination resulted
in losses in pay. The General Counsel proposes, in this re-
gard, that the back pay period be limited to the period begin-
ning September 20, 1988, which is 6 months prior to the fil-
ing of the first unfair labor practice charge in this pro-
ceeding. That, of course, is appropriate. The General Counsel
also proposes that the Board require the Union to make
whole Suda and all other employee-members of 30B that
have experience in performing commercial roofing work for
the losses suffered by reason of discrimination against
them.24 But if the General Counsel is thereby proposing that,
for back pay purposes, any 30B member with commercial
roofing experience be deemed to be eligible for referral from
Local 30 halls, that standard is too broad. On the other hand,
if the General Counsel means to leave to the compliance
stage the determination of eligibility for referral, that would
seem to burden that stage unnecessarily.
I thus recommend that, for the period beginning September
20, 1988, the Union be required to make whole David Suda
and the below-listed other employee-members of Local 30B
for the loss of earnings and other benefits they may have suf-
fered by reason of the Union’s discriminatory operation of its
Local 30 hiring halls. Such loss of earnings shall be com-
puted on a quarterly basis, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
Any employee-member of Local 30B having, at the time
of the claimed loss:
At least 5,000 hours of roofing experience and who
graduated from the 30B apprentice program; or
A total of at least 5,000 hours of roofing experience
with one or more of the following companies:
- Delta Roofing
- McGarvey & Sons
- McMullen Roofing
- Reilley Roofing
- Rise Roofing
- R. J. Associates
- Rys Roofing Company
- U.S. Roofing/J.M Contractors
- Wolfe Roofing & Sheetmetal, Inc.
- Any member of the RSMCA
- Any other employer whose commercial roofing
work constitutes more than half of its total roofing
work, measured in employee-hours; or
At least 5,000 hours of commercial roofing experi-
ence.
My reason for recommending these criteria are—
Graduation and 5000 hours from the 30B apprenticeship
program: Reference to the 30B apprenticeship program re-
flects the twin facts that the program was designed to
produce commercial roofers and that almost all of the partici-
pants in that program were employed by companies engaged
in commercial roofing work. The 5000-hour requirement re-
flects the Union’s own standard and evidence that, appren-
ticeship or no, on-the-job experience is important in becom-
ing a competent roofer.
Experience of 5000 hours with the listed employers: The
record shows that at least the majority of the roofing work
of all of the named employers is commercial work. And, of
course, virtually all the roofing work of the RSMCA mem-
bers is commercial. It is unlikely that an employee could
have 5000-hours experience with such companies and not
have the skills of a commercial journeyman roofer. In addi-
tion, there are undoubtedly roofing companies other than
1387TRI-COUNTY ROOFING
25 See sec. III,D, supra.
26 See Roofing, Metal & Heating Associates, 304 NLRB 266
(1992), for yet another instance of a violation of the Act by the
Union.
those named whose work is mostly commercial. The rec-
ommended criteria permit an investigation, at the compliance
stage, into the identities of such companies.
Commercial roofing experience of 5000 hours. The record
is clear that 30B members do a substantial amount of com-
mercial roofing work for companies whose business is at
least 50 percent residential—John P. Donnelly Roofing Com-
pany, for instance.25 There may be 30B members who are
able to show that they performed 5000 hours of commercial
roofing work for such companies. Even under Pedrick’s pro-
posed standard, such employees would qualify as journeyman
commercial roofers.
Other Remedial Provisions
A. Suda’s Discharge From Ace/Tri-County
Respondent Ace/Tri-County, having unlawfully terminated
the employment of its employee David Suda, must offer him
reinstatement. Ace/Tri-County and the Union shall jointly
and severally make Suda whole for any loss of earnings and
other benefits he suffered by reason of Ace/Tri-County’s ter-
mination of his employment. Such losses shall be computed
on a quarterly basis from the date of the termination of his
employment to the date of proper offer of reinstatement by
Ace/Tri-County, less any net interim earnings, as prescribed
in F. W. Woolworth Co., supra, plus interest as computed in
New Horizons for the Retarded, supra.
B. The Need for a Broad Form of Remedial Order
The recommended order requires that the Union cease and
desist from all of the various violations of the Act I have
concluded that it committed. The issue here is whether the
Union should further be ordered to cease and desist from
violating the Act ‘‘in any other manner’’ rather than the
usual ‘‘in any like or related manner.’’
Because the Union has continued to show itself to be un-
willing to comply with the requirements of the Act, because
the facts discussed in this decision show that the Union has
a proclivity to violate the Act,26 and because theUnion ‘‘has
engaged in such egregious . . . misconduct as to demonstrate
a general disregard’’ for its 30B members’ ‘‘fundamental
statutory rights,’’ I have concluded that a broad form of
order is necessary and appropriate. Hickmott Foods, 242
NLRB 1357 (1979); see also Boilermakers Local 374 (Con-
struction Engineering) v. NLRB, 284 NLRB 1382 (1987),
enfd. 852 F.2d 1353 (D.C. Cir. 1988).
[Recommended Order omitted from publication.]