Local Union 633, Plumbers

LOCAL UNION 633, PLUMBERS 67 Local Union 633, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (B & W Construction Company) and Bruce Dale Wade, Lynn. L. Himes, A. C. McBride, Ernest Ray Brown, and Plumbing, Heating, Piping and Air Conditioring Contrac- tors of Owensboro and Vicinity, Party to the Contract. Case 25-CB-3681, 25-CB-3722-1, and 25-CB-3722-2, 25-CB-3730 April 25, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On February 8, 1980, Administrative Law Judge J. Pargen Robertson issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief; the General Coun- sel filed a copy of his brief to the Administrative Law Judge and a supporting letter.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings,2 find- ings,3 and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.4 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Local Union 633, United Association of Journey- men and Apprentices of the Plumbing and Pipefit- I The General Counsel was granted special leave to file his brief beyond the due date due to special circumstances. 2 At the hearing, Respondent objected to the Administrative Law Judge's ruling permitting the sequestration of witnessess on a motion of a Charging Party which was made after the General Counsel's first witness had completed his direct testimony. The determination whether witnesses should be excluded from a hearing is a matter within the discretion of the Administrative Law Judge. We find no abuse of discretion here, as Re- spondent has not offered to demonstrate the manner in which the ruling has prejudiced its case. a For the reasons expressed in his dissent in Interstate Electric Comrnpa- ny, 227 NLRB 1996 (1977), enforcement denied 597 F2d 1331 (lOth Cir 1979), Member Jenkins would find unlawful the hiring hall procedure adopted on March 23, 1979. under which preference is given to appli. cants represented by Local 633 or a sister local at prior places of employ- ment. ' On the basis of Hickmott Foods. Inc., 242 NLRB No 177 (1979). the broad order recommended by the Administrative Law Judge is not ar- ranted Accordingly, we shall modify the recommended Order in this re- spect. 249 NLRB No. 11 ting Industry of the United States and Canada, AFL-CIO, Owensboro, Kentucky, its officers, agents, and representatives, shall take the action set forth in the said recommended Order, as so modi- fied: 1. Substitute the following for paragraph (d): "(d) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL operate our hiring hall in a non- discriminatory manner, referring applicants without regard to whether they are members of Local Union 633, or any other Union. WE WILL refer to employment Bruce Dale Wade, Lynn L. Himes, A. C. McBride, and Ernest Ray Brown at the next opportunity without regard to their nonmembership in this or any other Union. WE WILL make whole, by the payment of backpay, Bruce Dale Wade, Lynn L. Himes, A. C. McBride, and Ernest Ray Brown, for any loss of wages they have suffered due to our discriminatory refusal to refer them to em- ployment because of their not being members of Local 633. WE WILL notify all employers signatory to our collective-bargaining agreement, including B & W Construction Company, Industrial Contracting, Inc., and J. M. Foster, Inc., of our revision in the manner in which we oper- ate our exclusive referral procedure. WE WILL NOT cause or attempt to cause B & W Construction Company, Industrial Con- tracting, Inc., and J. M. Foster, Inc., or any other employer, to discriminate against any employee in violation of Section 8(a)(3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of LOCAL UNION 633, PLUMBERS 67 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the rights guaranteed them by Section 7 of the National Labor Relations Act, as amended. LOCAL UNION 633, UNITED ASsoCI- ATION OF JOURNEYMEN AND AP- PRENTICES OF THE PLUMBING AND PIPEFITtING INDUSTRY OF THE UNITED STATES AND CANADA, AFL- CIO DECISION STATEMENT OF THE CASE J. PARGEN ROBERTSON, Administrative Law Judge: This case was heard in Owensboro, Kentucky, on Sep- tember 5 and 6, 1979. The complaint in Case 25-CB- 3681 issued on April 27, 1979, and was amended on July 20, 1979. On May 31, 1979, a consolidated complaint issued in Cases 25-CB-3722-1, 25-CB-3722-2, and 25- CB-3730. All four cases were consolidated by order dated July 20, 1979. During the hearing motions to amend the complaints and answers were granted. The charges in Cases 25-CB-3681, 25-CB-3722-1, 25- CB-3722-2, and 25-CB-3730 were filed on March 12, April 23, and April 30, respectively. The consolidated complaint alleges that Respondent violated Section 8(b)(1)(A) and (b)(2) of the National Labor Relations Act, as amended, by refusing to refer the various Charging Parties to employment. During the hearing, the General Counsel, Respondent, and Charging Parties Himes, McBride, and Brown were represented by attorneys. All were given full opportunity to examine and cross-examine witnesses. Briefs were sub- mitted following the hearing by the General Counsel and Respondent. Upon the entire record,' including the briefs which have been duly considered, and my observation of the witnesses, I hereby make the following: Findings and Conclusions 1. The employers The General Counsel alleges that at material times Re- spondent has been party to a collective-bargaining agree- ment with various employers in the Owensboro, Ken- tucky, vicinity. Respondent originally admitted some of the employer jurisdictional allegations and denied others. However, at the hearing, Respondent amended its answer to admit that B & W Construction Company, In- dustrial Contracting, Inc., and J. M. Foster, Inc., are and have been employers that satisfy the Board's jurisdiction- al standards. Therefore, I find that during the 12-month period preceding the issuance of the complaints, a repre- i The General Counsel made two motions in his brief At fin 10 of his brief, the General Counsel moved that I reconsider my granting Re- spondent's motion to strike testimony of Steward George Himes regard- ing a possible role of Respondent in Ernest Brown's layoff at J. M Foster, Inc The General Counsel's motion for reconsideration of that ruling is hereby denied for the same reason given at pp 379 and 380 of the transcript At fn 16 of his brief. the General Counsel moved that the transcript be corrected at p 138, I 10, to substitute the name Bryant for Bros n. That motion appears to be well taken and is hereby granted. sentative period, B & W Construction Company, Indus- trial Contracting, Inc., and J. M. Foster, Inc., in the course of their business operations, each purchased, transferred, and delivered to its jobsites in various States of the United States goods and materials valued in excess of $50,000 which were transported to said jobsites direct- ly from States other than the State wherein each jobsite was located. Also, during the same 12-month period, B & W, Industrial, and Foster, in the course of their busi- ness operations, each performed services valued in excess of $50,000 in States other than the State of Indiana wherein each of the three named employers are located. Upon the foregoing facts, Respondent admits, and I find, that B & W Construction Company, Industrial Contract- ing, Inc., and J. M. Foster, Inc., are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Respondent Local Union 633, United Association of Journeymen and Apprentices of the Plumbing and Pipe- fitting Industry of the United States and Canada, AFL- CIO, admitted, and I find, that it is a labor organization within the meaning of Section 2(5) of the Act. 3. The evidence Respondent admitted, and I find, that since September 13, 1978, it has maintained an exclusive hiring procedure with various employers in the Owensboro vicinity in- cluding those which I have hereinabove found to be em- ployers. Throughout much of 1978 work was plentiful in the Owensboro vicinity. Apparently Respondent's members were fully employed during that period. The Charging Parties were all employed at various times during 1978 by employers signatory to the collective-bargaining agreement with Respondent. In compliance with the union-security provision of that contract, Charging Par- ties Himes, McBride, and Brown submitted applications for membership to Respondent during 1978. Charging Party Wade submitted an application for membership in 1979. However, none of the Charging Parties was ad- mitted to membership. The difficulties which gave rise to this litigation had their genesis in a November 17, 1978, union meeting. Ac- cording to the testimony of former business agent, Charles Staves, Respondent's members adopted a resolu- tion on November 17 that applicants and permit men would not be referred to jobs until they passed "the ex- amination." Staves testified that by "the examination" they meant the examination that was required for anyone to become a member of Respondent. The General Counsel contends that all the Charging Parties sought referrals from Respondent, but that after its November meeting Respondent refused to refer them to jobs because of their nonmembership. Respondent again amended its referral procedure on March 23, 1979. The March 23 change was incorporated by amendment into Respondent's collective-bargaining LOCAL UNION 633, PUMBERS 69 agreement. 2 The General Counsel contends that follow- ing its March change in the referral procedure, Respond- ent continued to fail to refer the Charging Parties in vio- lation of the Act. Charging Party Bruce Wade worked for Babcox and Wilcox 3 at a jobsite in Sebree, Kentucky, until he was terminated for absenteeism on February 2, 1979. Babcox and Wilcox was signatory to the collective-bargaining agreement with Respondent. Wade was referred to the Babcox job by Respondent. He worked there for 15-1/2 months in the pipefitter-welder position prior to his Feb- ruary 28 discharge. Wade testified that he went down to the union hall on the day after his discharge and talked with Assistant Business Agent Red Collins. According to Wade, he asked Collins "[I]f I could get back out to work as soon as possible because I knew B & W was hiring people that day in fact, and it was just a matter of giving me another referral and going back to the job." Collins told Wade that he could not refer him because he was a permit man.4 Wade testified that he left but subse- quently, on several dates, returned to the union hall and requested referral. On each such occasion Wade was told that he could not receive a referral because he was a permit man. On one of those visits, which Wade recalled occurred in late March, Wade talked with Business Agent Charles Staves. Wade testified that he asked Staves to put him on a job and Staves told him no. Wade then asked if he could sign the out-of-work list and Staves told him that he was not going to sign anything. z That amendment reads (in part) That parties hereto agree to the following system of referral em- ployment: Section . The Union shall be the sole and exclusive source of re- ferral of applicants for employment. The contractor shall submit re- quests of specified numbers of individuals for employment not less than 48 hours (excluding Saturdays, Sundays, and recognized holi- days) before the time the contractor wishes them to report for work. The contractor at that time shall indicate any special qualifications of the individuals, the location of the job, and the reporting date and time. Section 2. The Union shall then refer individuals for employment with the requesting contractor on a non-discriminatory basis, giving priority to the following categories of individuals in the following order: (a) Individuals who have worked four or more years under the Working Agreement between the Plumbing and Heating Contrac- tors of Owensboro, Kentucky, and all counties within the jurisdic- tion of Local 633 and Local Union No. 633, as journeymen plumb- ers or pipefitters. (b) Individuals who have worked two or three years under the Working Agreement between the Plumbing and Heating Contrac- tors of Owensboro, Kentucky, and all counties within the jurisdic- tion of Local 633 and Local Union No. 633 as journeymen plumb- ers or pipefitters. (c) Individuals who have been employed as journeymen plumb- ers or pipefitters under the collective bargaining agreement of a sister local union of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, of the United States and Canada, AFL-CIO, or who have worked under the Working Agreement between the Plumbing and Heating Con- tractors of Owensboro, Kentucky, and all counties within the ju- risdiction of Local Union No 633, but have done so less than 2 years (d) All other applicants 3 Also known as B & W Construction Company Collins did not deny telling Wade that he could not he referred out because he was a permit man. I found Wade to be a straightforward wit- tess and I credit his testinllo Staves recalled a conversation with Wade around the first of the year during which Wade was looking for work. Staves testified that he did not recall whether Wade asked to sign an out-of-work list or not on that oc- casion. However, Staves did recall that he tipped Wade off to the availability of a job at TVA through Local 40 of the Boilermakers. Wade testified that he did go to work on the TVA job on March 12, 1979. Wade worked on the TVA job for 28 days then quit. Wade filed an application for membership in Respond- ent in early April. However, since he was not accepted into the membership, his status remained that of a permit man. Wade testified that on a subsequent visit to the union hall which he recalled as being 2 days before Memorial Day, he was permitted to sign the out-of-work register. The register, which was received into evidence, does not indicate the date he signed. However, on July 31, 1979, Wade signed the out-of-work register the second time. On both occasions Wade was placed on the register in category "(d) All other applicants." 5 Wade was never referred to work by Respondent. However, the present business agent, Norman Cole, testi- fied that shortly after he became business agent on July 1, 1979, Wade came into the office looking for work. Cole testified that he told Wade that he had a "6G Welding" position and he asked Wade if he could do the job. According to Cole, Wade refused the job. Wade denied that he was offered a job by Cole. According to Wade, Cole asked if he could pass an "Arkansas 45 bell hole with a chill ring" test. Wade told Cole that he could pass that particular test. Cole then asked Wade if he could perform another welding test and Wade told him that he could not. I found Cole's testimony was somewhat vague. He never identified the job which he claimed would have been Wade's if Wade could have qualified. Furthermore, Cole was unclear in his testimo- ny as to whether Wade told him that he could or could not pass the test. I credit Wade's testimony that Cole did not offer him a job. Lynn L. Himes testified that he holds both a master's and a journeyman's plumbers license. Himes had worked on various plumbers' jobs, usually in the Owensboro vi- cinity, since 1965. Himes was called by the Local 633 steward6 on the Industrial Contracting, Inc., "Ana- conda" job on October 15, 1978, and asked if he would go to work there at Anaconda. Himes asked the steward if there was enough work to keep him busy a good long time. The steward checked into the matter and called Himes and told him that there was enough work to keep him busy for a long time. Himes started to work for In- dustrial immediately. Shortly thereafter, Himes submitted an application for membership to Respondent.7 On January 23, 1979, Himes was laid off his job at In- dustrial. Approximately 2 weeks after his layoff, Himes ' See fn. 2, supra. Himes identified the Industrial steward as James Stratton. However Himes' brother George Himes, who was the Industrial steward shortly before Oclober 15, testified that James Patton succeeded him as steward 7 Staves admitted that following the November 17, 1978. meeting, hi policy was not to refer nonmembers of Respondent until they were ad mitted into menmbership by passing the test. LOCAL UNION 633, PLUMBERS 69 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD went to Respondent's hall and talked with Assistant Business Agent Red Collins. Himes told Collins that he was out of work and would like to be put "on the list." Collins replied that he did not have a list for Himes and that Himes should check back in 2 weeks. Himes re- turned in 2 weeks but Collins again told him that he did not have anything and that he should check back in an- other 2 weeks. During March, Himes, along with Charg- ing Party A. C. McBride, visited Business Agent Staves at Staves' home. Staves told Himes and McBride that he could not send them to a job because there had been a motion made that he could not send anymore permit men out until after they had been tested. Himes and McBride told Staves that they were going to see a lawyer. On April 6, Himes and McBride took the examination for admission into Respondent's membership before Re- spondent's examining board. Both Himes and McBride failed the examination. Respondent did not refer Himes to any jobs after his January layoff from Industrial. A. C. McBride testified that he has worked as a pipe- fitter since 1948 when he started as an apprentice in Ev- ansville, Indiana. He worked in Evansville until 1959. Since 1959 McBride has worked for various employers in the Owensboro vicinity. During August 1978, McBride went to Respondent's hall and talked with Busi- ness Agent Staves. Staves knew of McBride's experience. Staves told McBride that work was plentiful. McBride asked Staves for an application form and Staves gave him one. McBride completed the application for mem- bership in Respondent and turned it in to Stave's secre- tary. On September 6, 1978, McBride was called by the then Industrial Contracting, Inc., steward, George Himes. Himes told McBride that Industrial needed per- sonnel and he asked McBride if he would like to go to work there. McBride asked Himes if there was going to be permanent employment because he did not want to quit his present job otherwise. Himes told McBride that he had discussed that with Mr. Staves and there would be no problem. Himes said that Staves had told him that in the event of layoffs at Industrial there would be other jobs available. McBride accepted the job at Industrial. In early November 1978, McBride, after determining that Respondent was agreeable to his transfer, transferred to a job with Morsey, Incorporated. On January 9, 1979, McBride was laid off. On the evening of January 9, McBride called Charles Staves and asked if he could be referred to another job. Staves told him that he could not refer him since the members had voted not to send out anymore permit men until they had taken their test and had become a member. McBride told Staves that he had been assured nothing like this would happen. Staves said there was nothing he could do. On March 12, 1979, McBride, along with Charging Party Lynn Himes, went to Staves' home. Again, Staves said that he could not refer permit men until they took their test. McBride took Respondent's test on April 6, but failed. McBride has not received a job referral from Re- spondent since his January layoff. Ernest Ray Brown had been a licensed plumber since 1976. However, Brown has worked in the plumbing trade since 1967. During July 1978, Brown talked with Respondent's Financial Secretary Herbert Cook. Brown picked up an application for membership from Cook. On August 5, 1978, Brown was called by the union steward at Industrial Contracting, Inc., George Himes. Himes told Brown that he had talked with Charles Staves and that it was okay for Brown to go to work at Industrial. Thereafter, Brown went to the Industrial job where he met George Himes. Himes took him onto the job and in- troduced Brown to the foreman. Himes told the foreman that Brown was starting to work. In early November George Himes suggested that Brown transfer to J. M. Foster because work was getting slow at Industrial. Himes said he would clear the transfer with the Union. Brown transferred to J. M. Foster on November 7. The Foster jobsite was the same as Industrial's site. On March 16, 1979, Union Steward George Himes told Brown that there was going to be a reduction in force. Himes said he was going to go around and ask some of the travelerss if they wanted to leave. Himes told Brown that Brown would be laid off unless enough travelers volunteered. Himes said Brown would be one of the first to go since he was a permit hand. Himes returned later and told Brown that he would be laid off and that was9 his last day. On March 19, Brown went to Respondent's hall and talked with Red Collins. Brown told Collins that he had been laid off and was looking for another job.Collins re- plied that he did not have anything at the moment for a permit man. On April 20, Brown took Respondent's test but he also failed. Brown has not been referred to any other jobs by Respondent. 4. Analysis a. The November 17 resolution Through hiring halls, unions have assumed a position of responsibility to both potential employees and to the employers that are party to the hiring hall arrangement. Unions may accept the responsibility of referring only qualified workers to employers. Although that particular responsibility is sometimes incorporated into the collec- tive-bargaining agreement, unions often take reasonable steps to fulfill that responsibility even though the con- tract is silent on that point. In International Brotherhood of Electrical Workers, Local 592 (United Engineers & Con- struction Co.), 223 NLRB 899 (1976), the Board found that the Union, in attempting to insure its referrals were qualified, may legally require its highest category of re- ferrals to pass a "journeyman examination." On November 17, 1978, Respondent's members voted to require all nonmembers to pass an examination admin- 9 "Travelers" are members of locals other than Respondent that are working for the Owensboro vicinity. 9 Collins admitted that Brown came by the hall and told him that he had been laid off. According to Collins. Brown did not ask for a referral. I credit Brown's version of this conversation. Moreover, Collins admitted that the referral books are generally called the "out-of-work" list. There- fore, it appears that nothing more should be required than a comment that someone is out of work. Obviously, when someone comes by the union hall to announce they are out of work, the normal presumption would be that they want another job. LOCAL UNION 633, PLUMBERS 71 istered by its examining board. Although the requirement that applicants for referral pass an examination does not constitute a violation of the Act, a union may not use the device of an examination to promote discriminatory practices. In administering a testing program a union must insure that the testing requirement does not unfairly penalize nonmembers regardless of their work qualifica- tions. The Union must apply the same standards of qual- ity to members and nonmembers alike. The examination should be administered in a timely fashion so that non- member applicants are not unfairly delayed in referrals because of the Union's delay in testing. Also the exami- nation should be prepared in such a manner as to reason- ably demonstrate whether the testee is qualified to do journeyman work and the questions should not be framed in such a manner to penalize a nonmember be- cause of his nonmembership. In the instant case the evidence demonstrated that the November 17 resolution was passed and administered for the express purpose of permitting Respondent to evade its hiring hall obligations to nonmembers. The testimony of the former business agent, Charles Staves, demon- strates that the intent of the November 17 resolution was to prevent the future referral of anyone who was not a member. In order to qualify for referral after November 17, a person must apply for membership, take and pass the examination-in effect-to become a member. No ex- amination was required of members. All members contin- ued to be eligible for referral after November 17. I find that Respondent's November resolution was, on its face, applied to all four Charging Parties. Bruce Wade was denied a referral by Assistant Busi- ness Agent Red Collins on March 1. Collins denied Lynn Himes' request for referral when Himes went to the hall approximately 2 weeks after his January 23, 1979, layoff. I also find that Collins refused to consider the request for referral by Ernest Ray Brown which Brown made on March 19. Red Collins testified that between November 17, 1978, and March 23, 1979, he applied the November resolution of not referring permit men. On January 9, 1979, A. C. McBride asked Business Agent Staves for a referral. Staves told McBride that he could not refer him out since the members had voted not to send out any- more permit men until they had taken their test and had become a member. Wade, McBride, and Himes all made subsequent requests for referrals before Respondent adopted its new referral policy on March 23. All those subsequent requests were denied in accord with Re- spondent's November 17 resolution. Moreover, the Charging Parties were not afforded an opportunity to take the examination until referrals were refused on several occasions. Charging Parties McBride, Himes, and Brown applied for union membership in the summer and fall of 1978, but they were not given an op- portunity to take the examination until April 1979. Wade did not apply for membership until April 1979. However, Wade had not been tested at the time of the hearing. I find that by its above-mentioned actions Respondent refused to consider for referral and refused to refer Wade,1 0 Himes, Browvn, and McBride, because of their nonmembership and thereby violated the Act. b. The March 23, 1979, amendment Pursuant to action by Respondent on March 23, the contractual hiring hall arrangement was amended. That amendment, which is shown in part in footnote 2, above, appears to give referral preference on the basis of the length of service the referral applicant has with employ- ers that are party to the collective-bargaining agreement with Respondent. In Interstate Electric Company,' the Board held that provisions of a collective-bargaining agreement regarding referral which are similar to the instant amendment of March 23, do not, on their face, violate the Act. I find nothing in Respondent's March 23 amendment which would distinguish that amendment from Interstate Elec- tric regarding its legality. However, according to the uncontested testimony of the former assistant business agent, Red Collins, the March 23 amendment did nothing to change Respond- ent's policy of not referring nonmembers. Collins testi- fied that in considering whether a referral applicant would qualify under Section 2(a), (b), (c), or (d) of the hiring hall provision of the contract,'2 the matter of ex- perience was not material to the placement of a permit man. All permit men are placed in category 2(d) regard- less of their experience. The record does not conclusively show exactly how much experience Bruce Wade had under the Working Agreement between Respondent and Owensboro vicinity contractors, at any time after March 30. However, it is clear that Wade had at least 15-1/2 months' qualifying experience through his employment with B & W Con- struction Company at their Sebree job, when he was ter- minated on February 28, 1979. Therefore, it would appear that a nondiscriminatory application of the March 23 amendment, would place Wade in category 2(c) or higher. Nevertheless, when Wade came to the union hall 2 days before Memorial Day 1979, and again on July 31, 1979, he was placed on the out-of-work register in cate- gory 2(d). Therefore, I find on the basis of Collins' testi- mony and the placement of Wade in category 2(d), that Respondent's policy after March 23, was to place all nonmember referral applicants in category 2(d) regard- less of whether they would otherwise qualify for catego- ry 2(a), (b), or (c). No referrals were made from the category (d) appli- cants. However, Red Collins admitted that several cate- '° Although Wade was never referred to employment by Respondent after March , 1979, he testified that he did accept work with TVA through another union on March 12, 1979. That job was suggested by Respondent's Business Agent Staves. Although Staves' suggestion of the job to Wade does not satisfy Respondent's obligation to refer Wade to work within its jurisdiction, Wade's acceptance of the TVA job would apparently remove him from an out-of-work status during the short period he worked for TVA. " 227 NLRB 1996 (1977); see also Local Union No. 68. International Brotherhood of Electrical Workers (Howard Electric Company), 227 NLRB 1904 (1077); and Local Union 469 of the United Association of the Journey- men and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada (arious Employers in the Construction Indus- try), 228 NLRB 298 (1977). *2 See fn. 2, supra. LOCAL UNION 633. PLUMBERS 7' 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gory 2(c) personnel were referred between March 29 and June 11, 1979, without even signing the out-of-work reg- ister. Neither Himes, McBride, nor Brown returned to the hall after March 23. However, it is apparent that none of their positions would have changed by their appearing and signing the out-of-work register. Since none of the three were members, each would have been placed in category 2(d) and not referred.' 3 Therefore, I find that Respondent's illegal action re- garding Charging Parties Wade, Himes, McBride, and Brown, was not corrected by the March 23 amendment. Furthermore, the placement of Wade in category 2(d) constitutes additional violations since the evidence dem- onstrates, and I find, that Wade was placed in that, the lowest category for referrals solely because he was not a member of Respondent. c. The testing Respondent's examining board tested Himes and McBride on April 6, 1979, and Brown on April 20, 1979. McBride applied for membership in August 1978. Himes applied for membership in the fall of 1978. Brown ap- plied for membership in the summer of 1978. Although Wade applied for membership in April 1979, he had not been tested at the time of the hearing herein. I find that by giving the examination to McBride, Himes, and Brown, Respondent did nothing which cured its previous illegal refusals to refer them to employment. Nor did the testing of McBride, Himes, and Brown inter- rupt the continuing nature of Respondent's illegal acts. As indicated above, the evidence demonstrated that the test was a prerequisite to referral for nonmembers only. Members were not required to be tested before re- ferrals. Additionally, the evidence illustrated that some of the members had not been tested at any time. Al- though persons applying for membership are customarily tested before becoming a member, the evidence showed that anyone that applied during one of Respondent's or- ganizing campaigns was not tested before becoming a member. Therefore, the requirement that nonmembers be tested before referrals is discriminatory. Furthermore, Respondent offered no explanation for the long delay between the applications of Himes, McBride, Brown, and Wade and their test date. One of the examining board members, Evans, testified that there was no urgency in testing because there was not enough work. However, such an explanation does not justify delay which results in the loss of job opportunities. A union's delav in testing a referral applicant's qualifica- tions should not result in the applicant missing a job op- portunity absent reasonable, nondiscriminatory justifica- tion. '" As in the case of Wade, the record does not reflect with precision the experience of Himes, McBride, and Brown, which would be consid- ered qualifying under the March 23 hiring hall amendment. The record does indicate, and I find, that all three would qualify for category 2(c) or higher. If it becomes necessary to determine specifically which of catego- ries 2(a), (b), or (c), to which Wade, Himes, McBride, and Brown quali- fied at the times of Respondent's illegal acts, that matter should be con- sidered in backpay proceedings. Additionally, the evidence demonstrated that the ex- amination given Himes, McBride, and Brown were more difficult than the examination normally given, and that the grading was designed to insure failure. The tests given to the Charging Parties were not from the stock- pile of examinations which Respondent regularly gave. Moreover, Evans admitted that one answer which result- ed in Brown failing the examination was correct. Brown, in answering the question used a term which is common on the job. However, his answer was marked incorrect because he did not use a technical word. It is not my intent to dictate to Respondent which methods they should use in testing referral applicants' qualifications. Nor do I intend to imply that Respondent cannot test on the technical names of various instru- ments. However, regardless of which means Respondent uses, if any, and regardless of the type questions Re- spondent includes in its examinations, those actions must not result in the discrimination of nonmembers in viola- tion of the Act. Therefore, I find, in support of the General Counsel, that Respondent's actions in failing to refer Wade, McBride, Himes, and Brown, following their respective request of March 1, 1979, January 9, 1979, February 6, 1979, and March 19, 1979, and subsequently, violate Sec- tion 8(b)(1)(A) and (2) of the Act."4 Although such a finding does not necessitate a determination that jobs were available, I the evidence does demonstrate, and I find that Respondent was making other referrals at the times of Charging Parties' requests and thereafter. CONCLUSIONS OF LAW i. Respondent Local Union 633, United Association of Journeymen and Apprentices of the Pipefitting Industry of the United States and Canada, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. B & W Construction Company, Industrial Contract- ing, Inc., and J. M. Foster, Inc., parties to the contract, are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By refusing to refer Wade, McBride, Himes, and Brown to employment through its hiring hall since March 1, January 9, February 6, and March 19, respec- tively, and thereafter, Respondent has violated and is violating Section 8(b)(1)(A) and (2) of the Act.t 6 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 14 International Brotherhood of Boilermakers, Iron Ship Builders. Black- smiths. Forgers & Helpers Local Lodge No. 587 (Stone & Webster Engineer- ing Corporation), 233 NLRB 612 (1977); Bricklayers' and Stonemasons' In- ternational Union. Local No. 8, etc. (California Conference of Mason Con- tractor Associations), 235 NLRB 1001 (1978). ib Utility and Industrial Construction Company, 214 NLRB 1053 (1974). i6 In addition to its allegation that Respondent illegally failed to refer Wade. Himes, McBride, and Brown, the General Counsel alleges that Re- spondent, on March 2, and March 7, 1979, prevented Wade from regis- tering his name on Respondent's employment and/or referral list. My finding is that Respondent did in fact refuse to place Wade in a position to be considered for referral. However, from the record evidence, it ap- pears that Respondent was not actually using a referral list until after its March 23, 1979. amendment to its hiring hall procedure. LOCAL UNION 633, PLUMBERS 73 THE REMEDY In order to effectuate the policies of the Act, it is rec- ommended that Respondent be ordered to cease and desist from the unfair labor practices found and that it be ordered to operate its exclusive hiring hall in a nondiscri- minatory manner; that it maintain records which accu- rately and fully reflect the basis on which each referral is made and that such records be made available for inspec- tion by the Board's Regional Director or his agent. I recommend that Respondent be ordered to cease and desist from refusing to refer to employment Bruce Dale Wade, Lynn L. Himes, A. C. McBride, and Ernest Ray Brown, for discriminatory reasons due to their nonmem- bership in Respondent, and that Respondent make Wade, Himes, McBride, and Brown, whole for its unlawful re- fusal to refer them to employment. The amount of back- pay shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon to be computed in the manner prescribed in Flor- ida Steel Corporation, 231 NLRB 651 (1977). 7 As the unlawful acts of Respondent indicate a purpose to limit the lawful rights of applicants for employment, I recommend that Respondent be ordered to cease and desist from in any other manner restraining or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER I 8 The Respondent, Local Union 633, United Association of Journeymen and Apprentices of the Plumbing and Pi- pefitting Industry of the United States and Canada, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Operating its exclusive hiring hall in a discriminato- ry manner. (b) Refusing to refer to employment Bruce Dale Wade, Lynn L. Himes, A. C. McBride, Ernest Ray Brown, or any other applicant, because of their lack of membership in Respondent or any other labor organiza- tion. (c) Causing or attempting to cause B & W Construc- tion Company, Industrial Contracting, Inc., J. M. Foster, Inc., or any other employer, to discriminate against Bruce Dale Wade, Lynn L. Himes, A. C. McBride, Ernest Ray Brown, or any other employee, because of the employees lack of membership in Local 633 and in violation of Section 8(a)(3) of the Act. (d) In any manner restraining or coercing employees or applicants for employment in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to effetuate the policies of the Act: 17 See, generally, Isis Plumbing Heating Co., 138 NLRB 716 (1962). s In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. (a) Operate its exclusive hiring hall in a nondiscrimina- tory manner. (b) Refer Bruce Dale Wade, Lynn L. Himes, A. C. McBride, and Ernest Ray Brown to employment without discrimination due to their lack of membership in Re- spondent or any other labor organization, at the next op- portunity, and make each of them whole for any loss of pay suffered by reason of the discrimination practiced against them in the manner set forth in the section of this decision entitled "The Remedy." (c) Maintain a record to reflect accurately, fairly, and nondiscriminatorily the operation of the referral system from the hiring hall, and for a period of 1 year disclose to the Regional Director for Region 25, or his agents, the manner of operation of the hiring hall. (d) Preserve and, upon 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 rec- ords necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at all places copies of the attached notice marked "Appendix."L9 Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by an authorized representative of the Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or cov- eled by any other material. (f) Furnish the Regional Director for Region 25 signed ccpies of such notice for posting by B & W Construction Company, Industrial Contracting, Inc., and J. M. Foster, Inc., said employers being willing, at all locations where notices to employees are customarily posted. (g) Notify the Regional Director for Region 25, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. '1 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by order of the National Labor Relations Board" shall read "Posted pursu- ant to a judgment of the United States Court of Appeals enforcing an order of the National Labor Relations Board." APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL operate our hiring hall in a nondiscri- minatory manner, referring applicants without regard to whether they are members of Local Union 633, or any other Union. WE WILL refer to employment Bruce Dale Wade, Lynn L. Himes, A. C. McBride, and Ernest Ray Brown, at the next opportunity without regard to their nonmembership in this or any other Union. LOCAL UNION 633, PLUMBERS 73 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL make whole, by the payment of back- pay, Bruce Dale Wade, Lynn L. Himes, A. C. McBride, and Ernest Ray Brown, for any loss of wages they have suffered due to our discriminatory refusal to refer them to employment because of their not being members of Local 633. WE WILL notify all employers signatory to our collective-bargaining agreement, including B&W Construction Company, Industrial Contracting, Inc., and J. M. Foster, Inc., of our revision in the manner in which we shall operate our exclusive referral procedure. WE WILL NOT cause or attempt to cause B&W Construction Company, Industrial Contracting, Inc., and J. M. Foster, Inc., or any other employer, to discriminate against any employee in violation of Section 8(a)(3) of the Act. WE WILL NOT in any other manner restrain or coerce employees in the exercise of rights guaran- teed them by the Act. LOCAL UNION 633, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO