Ironworkers Local Union No. 290

IRONWORKERS LOCAL UNION NO. 290 177 Ironworkers Local Union No. 290, International Association of Bridge , Structural and Ornamental Iron Workers, AFL-CIO (Mid-States Steel Erection Company ) and Stephan Michael Sydor. Case 9-CB-1669 earnings during that period, with interest thereon at the rate of 6 percent per annum, in accordance with the Board's formula set forth in F. W. Wool- worth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716." June 30, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On March 4 , 1970, Trial Examiner Maurice S. Bush issued his Decision in the above -entitled proceeding , finding that Respondent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner 's Decision. Thereafter , Respondent filed exceptions to the Trial Examiner 's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended , the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing, and finds that no prejudicial error was committed The rulings are hereby affirmed The Board has considered the Trial Examiner 's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings , conclusions, and recommenda- tions of the Trial Examiner except as modified herein. We agree with the Trial Examiner 's recommen- dation enjoining the discriminatory operation of Respondent 's hiring hall. However , to remedy the violations found, we do not consider it necessary, and accordingly do not adopt , that portion of the recommended remedy prescribing a modus operands for the hiring hall or making variations thereof sub- ject to approval of the Regional Director Cf. Local 138, International Union of Operating Engineers, AFL-CIO [ Nassau and Suffolk Contractors Associa- tion] v. N.L R. B., 321 F.2d 130 (C A. 2) Instead, we shall direct that Respondent maintain records of its hiring hall operations and make those available to the Regional Director upon request ADDITION TO THE REMEDY Substitute a comma for the period at the end of the first sentence of the last paragraph in the sec- tion of the Trial Examiner's Decision entitled "The Remedy," and add thereto the following "less net ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner , as modified below, and hereby orders that Respondent, Iron- workers Local Union No. 290, International As- sociation of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified. 1 Substitute the following for paragraph 2(b): "(b) Maintain permanent written records of its hiring and referral operations which will be adequate to disclose fully the basis upon which referrals are made and, upon request of the Re- gional Director of the Board or his agents, make available for inspection, at reasonable times, any records relating in any way to the hiring and refer- ral system." 2. Substitute the following for the penultimate paragraph of the notice: We will maintain permanent written records of our hiring and referral operations which will be adequate to disclose fully the basis upon which each referral is made and, upon request of the Regional Director of the Board, or his agents, make available for inspection, at all reasonable times, any records relating in any way to the hiring and referral system. 3. Delete the last paragraph of the notice in its entirety. TRIAL EXAMINER'S DECISION Statement of the Case MAURICE S. BUSH, Trial Examiner: The Charging Party herein is Stephan Michael Sydor, a high school teacher of English, Latin, and Russian in the public school system of Dayton, Ohio, who works as an ironworker during the summers, Christmas vacations, and various other school holidays during the school year. Although not affiliated with any Ironworkers local union, Sydor has received work as an iron- worker for a number of years in the greater Dayton area through the exclusive hiring hall of the Respondent Local Union No. 290 herein. 184 NLRB No. 21 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Aggrieved at his inability to receive work through the Union's exclusive hiring hall for a period of about a month in the summer of 1969 and believing this resulted from discriminatory treatment, Sydor filed charges against Local No. 290, alleging vari- ous unfair labor practices. Pursuant to such charges,' a complaint was is- sued on September 8, 1969 The principal thrust of the complaint is that Respondent Local No. 290 in the operation of its exclusive hiring hall discrimina- torily denied Sydor referrals for employment to em- ployers for a period of about 30 days in the summer of 1969 because of his nonmembership in Local No. 290 in violation of Section 8(b)(I)(A) and (2) of the National Labor Relations Act. The complaint also alleges an infringement of Section 7 of the Act in violation of Section 8(b)( I )(A) of the Act by an alleged statement of Local No. 290 's business representative to Sydor that he would be referred out for employment provided he withdrew his original charge herein. A more detailed statement of the issues is set forth below. The answer of Respondent Local No. 290 denies any unfair labor practices. The case was tried before the Trial Examiner on October 30 and 31, 1969. Briefs filed by counsel for General Counsel and for the Respondent Union Local No. 290 have been carefully reviewed and considered. Upon the entire record and from his observation of the witnesses, the Trial Examiner makes the fol- lowing: Findings of Fact 1. JURISDICTIONAL FINDINGS A. The Union Ironworkers Local Union No. 290, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, hereinafter called Respondent Local Union No. 290 or simply Union or Local No. 290, is a labor organization as defined in Section 2(5) of the Act. B. The Association Associated General Contractors of America, West Central Ohio Chapter of Dayton, Ohio, hereinafter called the Association, is a multiem- ployer association which exists and functions for the purpose, among others, of representing its members in collective bargaining with Local 290 and other labor organizations. C. Employer Members of the Association The following named companies are members of the said Association and are engaged in the build- ' The original charge herein was filed on July 18, 1969, and served upon Local No 290 on July 24, 1969, an amended charge was filed on August 27, 1969, and served on Local No 290 on August 29, 1969 ing and construction industry within the State of Ohio: 1. Mid-States Steel Erection Company, hereinafter called Mid-States 2. B. G. Danis Company,2 hereinafter called B. G Danis. 3. Maxon Construction Company, hereinafter called Maxon Construction. 4. Ray Johnson Construction Company, hereinafter called Johnson Construction. 5. McGraw Construction Company, hereinafter called McGraw Construction. 6. Flohr Construction Company, hereinafter called Flohr Construction. D. Volume of Business of Association Members During the past 12 months, a representative period, Mid-States, B. G. Danis, Maxon Construc- tion, Johnson Construction, McGraw Construction, and Flohr Construction had a direct inflow of products, in interstate commerce, valued in excess of $50,000, which were purchased and shipped directly to them in the State of Ohio from points outside the State of Ohio. During the same period, the above-named Employers performed services valued in excess of $50,000 for other employers in the State of Ohio each of whom, in turn, shipped and sold goods and materials valued in excess of $50,000 directly to points outside of Ohio. E. Employer and Commerce Requirement At all times herein material, the Association, Mid-States, B. G. Danis, Maxon Construction, Johnson Construction, McGraw Construction, and Flohr Construction and each of the members have been employers as defined in Section 2(2) of the Act and, engaged in commerce and in operations affecting commerce as defined in Section 2(6) and (7) of the Act, respectively. II. THE ISSUES The issues herein by agreement of the parties at the hearing are as follows: 1 Whether Respondent Local Union No. 290 is in violation of Section 8(b)(1)(A) and (2) of the Act by reason of the following alleged conduct: (a) Discriminatorily refusing to refer the Charg- ing Party (Sydor) out for employment for a period of about a month in 1969 from its exclusive hiring hall as an ironworker to member-employers of the Association because of his nonmembership in the Union, thereby attempting to cause and causing said member-employers of the Association to dis- criminate against the Charging Party in violation of Section 8(a)(3) of the Act. ! Originally shown as B G Dannis Company in the complaint, the spelling was corrected by motion to read B G Danis Company IRONWORKERS LOCAL UNION NO 290 179 (b) Refusing to refer the Charging Party out to positions of employment as an ironworker with As- sociation members, Johnson Construction, Mid- States Construction, McGraw Construction, and Flohr Construction for a period of about a month in 1969 on an equal, basis with union members because of his nonmembership in the Union, thereby attempting to cause and causing said em- ployers to discriminate against the Charging Party in violation of Section 8(a)(3) of the Act. (c) Discriminatorily operating its exclusive hir- ing hall arrangement with the Association by refus- ing since about June 24, 1969, to refer nonmem- bers of the Union out on an equal basis with mem- bers of the Union to positions of employment as ironworkers with member-employers of the As- sociation , thereby attempting to cause and causing said member-employers to discriminate against em- ployees in violation of Section 8(a)(3) of the Act. 2. Whether Respondent Local Union No. 290 is in violation of Section 8(b)( I )(A) by reason of the following alleged conduct: Restraining and coercing the Charging Party (Sydor) on or about July 25, 1969, in the exercise of rights guaranteed in Section 7 of the Act by the conduct of the Union' s Business Agent George Clark at the Union's hiring hall in telling the Charg- ing Party that he would be referred for employment with construction employers provided he withdrew the charge he had filed against the Union on July 18, 1969. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Local No. 290's Exclusive Hiring Hall Privilege Under Collective-Bargaining Contract On June 1, 1968, Local Union No. 290 and the Association entered into a 2-year master collective- bargaining agreement covering wages , hours, and working conditions of ironworkers in 16 counties or parts of counties in Ohio and 4 counties in Indiana. Under the terms of the "Referral Clause" of the agreement, the Union has the exclusive right to furnish and refer to the member-employers of the Association all the ironworkers they require within the territory covered by the contract, with excep- tions not here applicable. The referral clause provides for the selection and referral of applicants by the Union on the basis of four priority groups designated as groups "A," "B," "C," and "D." The Union under the referral clause is required to register each applicant for employ- ment on separate registers to be maintained for each of these priority groups.3 The register for group "A" is for applicants who (a) have previously passed a journeyman's ex- amination conducted by a duly constituted local union affiliated with the International, (b) have worked at the trade as a mechanic or apprentice for the past 5 years, (c) have been employed for a period of at least 4 years during the last 5 years by employer-members of the Association, and (d) have actually resided for the past year within the geographical area constituting the normal construc- tion labor market. The register for group "B" applicants are for ironworkers who (a) have previously passed the above-described journeyman's examination and (b) have worked at the trade as a mechanic or ap- prentice for the past 5 years. The group "C" register is for applicants who (a) have worked at the trade as a mechanic or ap- prentice for the past 3 years or more and (b) have for the past year actually resided within the geo- graphical area constituting the normal construction labor market. The group "D" register is for all applicants who have worked at the trade for more than 1 year. Groups "A" and "B" applicants are generally referred to as "bookmen" to signify that they have a book showing membership in a local affiliated with the International. Applicants on groups "C" and "D" registers are known as "permit" men. Although the collective- bargaining contract gives the Union the exclusive right to select and refer ap- plicants for employment to the employer-members of the Association, the referral clause specifically provides that, "The Union shall select and refer ap- plicants for employment without discrimination against such applicants by reason of membership or non-membership in the Union." (Emphasis sup- plied.) (Joint Exh. 1, p. 27, par. 4). Under the terms of the agreement this prohibi- tion against discrimination is not applicable to all applicants across-the-board but only to the selec- tion and referral of applicants within each of the four priority registers. The Union is required to "refer applicants to the Employer by first referring applicants in Group A in the order of their places on said list and then referring applicants in the same manner suc- cessively from the lists in Group `B,' then Group `C,' and then Group 'D."' The evidence shows that in actual practice only members of, Local No. 290 receive the high priority jobs in group "A." Notwithstanding the requirement of the collec- tive-bargaining agreement that the Union maintain four separate registers for applicants for employ- ment as above-described, it is an admitted and con- ceded fact that Local No. 290 has not maintained any registers of any sort for at least the past 4 years. 3 This appears from the following sentence in the collective-bargaining agreement "The Union shall maintain each of the separate group lists set forth above, which shall list the applicants within each group in the order of the dates they registered as available for employment " ( Emphasis sup- plied ) (Joint Exh 1, p 28, par 7 ) 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Under the terms of the contract, Employers have the right under the agreement to reject any appli- cant referred by Local No. 290. Referrals for employment at the Union 's exclu- sive hiring hall are handled exclusively by the Union 's business representative , George Clark, ex- cept when he is on leave . Clark has been the Union 's business agent for the past 17 years. In the past 4 years he has substituted his own method of selecting applicants for referrals, described as by "sight and memory ," in place of the procedure set forth in the collective-bargaining agreement as described above. Local No. 290 has about 500 members or local bookmen Of this number 80 to 90 percent are per- manently employed by contractors and accordingly never show up at the local's hiring hall for referrals. Clark can recognize by sight the remaining mem- bers of Local No . 290 when they appear at the hir- ing hall for employment He can also recognize by sight bookmen from other locals and permit men who apply for job referrals at the hall if he has seen them at least once before. In the normal day anywhere from 15 to 30 men show up at the hall for referrals . When an unknown applicant shows up at the hiring hall for the first time, Clark will ask his name and whether he is an out-of-town bookman or permit man and inquire into his experience. Recent years have been times of high employ- ment for ironworkers in the greater Dayton area, including the summer of 1969 here involved. The demand for qualified ironworkers frequently ex- ceeds the number available. Business Agent Clark opens the hiring hall at 6 30 a.m ., and after sorting out the requests from the various contractors of the Association for iron- workers, he would call out the referrals to the men in the hall through the sliding glass windows of his office which is adjacent to the hall and separated from it only by a waist high wall and the sliding glass panels. Due to the fact that the use of attendance re- gisters required by the collective -bargaining agree- ment has been abandoned by the Union , Clark de- pends, as above noted , on his "sight and memory" of the order of the appearance of the applicants at the hiring hall in making up his job referral lists. Referrals are generally completed between 8:30 and 9 o'clock each morning . Applicants who have not received early morning assignments to jobs sometime remain in the hall until 9 a.m in the hope of getting a late request for a referral. Bookmen who are known as journeymen iron- workers or mechanics are skilled in the eight clas- sifications of ironwork designated in the collective- bargaining contract as follows: ( 1) structural, (2) ornamental , ( 3) reinforcing , ( 4) machinery mover, (5) rigger and erector , ( 6) welder, (7) fence erector , and (8 ) sheeter. At the times here per- tinent the greatest demand has been for ironwork- ers skilled in structural and reinforcing. B. Facts Relating to Charging Party's Inability to get Referrals out of Local No. 30 's Exclusive Hiring Hall, and Conclusions Charging Party Sydor, age 45 , was born at Al- liance, Ohio, and has Bachelor of Arts and Master degrees from midwestern universities . He has full- time employment as a high school teacher in the public school system of Dayton , Ohio, where he teaches English , Russian , and formerly Latin. He has been teaching since 1956. Prior to becoming a teacher he had experience in practically every phase of shop work, having at times held jobs as a drop forge operator , press operator , and heater. Sydor has never been a member of the Interna- tional Association of Bridge, Structural , and Orna- mental Iron Workers, AFL-CIO, or any of its lo- cals, but is a member of the Teacher's Union and is vice president of that Union's Miami Valley Coun- cil, AFL-CIO. He has wide acquaintance among union officials of various crafts in the Dayton area. Sydor received his first employment as an iron- worker in 1963 or 1964 through Local No. 290's exclusive hiring hall His referrals over the years have always been as a permit man. He works at the trade of ironworker only at such 'times as he is not engaged in his regular profession as a teacher, to wit, in the summers and during Christmas and Easter holidays and other shorter school holidays. Because of the high demand for ironworkers, Sydor has had very little difficulty picking up work at the Union's hiring hall prior to the summer of 1969. He has received practically all of his referrals or assign- ments from Business Representative Clark. As a permit man , Sydor pays a "dobie" fee of $3.50 for each week in which he obtains work through the hall whereas bookmen of Local 290 pay dues of $10 per month. The apparent attraction for Sydor of work as an ironworker is the ironworkers' wage scale The pay is $6.15 per hour and $12 30 per hour for all hours worked on Saturdays, Sundays, and holidays and all hours after 8 hours on regular workdays . There is no differentiation in pay for bookmen and permit men, they all receive the same rate of pay. Sydor has never sought to qualify as a jour- neyman ironworker by taking the examinations of- fered by Local No 290 or any other local of the In- ternational In the 5 or 6 years that he has worked part time as an ironworker, he has acquired ex- perience in work classified by the collective-bar- gaining agreement as structural , which consists of putting up and bolting large metal beams; reinforc- ing, which consists of the installation of rods for the reinforcement of concrete prior to its pouring; or- namental work , and welding . More than 50 percent of Sydor's experience has been in reinforcing, which is commonly called rod work or rod busting The work in which he is next most experienced is in structural work . In one of his referrals , he worked an entire summer as a welder . He has had limited IRONWORKERS LOCAL UNION NO. 290 experience as a machinery mover, sheeter, and or- namental ironworker In the years prior to 1969, Sydor established a reputation for doing good work on his job referrals out of the Union's exclusive hiring hall. Business Agent Clark, under questioning by the Trial Ex- aminer, admitted that prior to 1969 Sydor "went out and done a good job, the best he could do." The record shows that the mere appearance of an applicant at the Union's exclusive hiring hall was recognized as an application for a referral without any further act on the part of the applicant in- asmuch as the Union kept no registration lists as required by the collective-bargaining contract. As heretofore noted, Clark based his referrals on "sight and memory" of those present in the hiring hall. Sydor's appearance at the hall was made con- spicuous by the fact that he always appeared in slacks instead of the work trousers worn by most ironworkers When Sydor was in the hiring hall and Clark wanted to get his attention from his adjoining office, he would mockingly shout at him, "Hey, teacher," instead of calling out his given name or surname. At times Sydor would not respond to the appellation "Hey, teacher," but would wait until Clark called him by his name. As heretofore indicated, Sydor encountered little difficulty in obtaining work as an ironworker through the Union's exclusive hiring hall prior to 1969 He encountered his first real difficulty in ob- taining work through the Union on June 24, 1969, and this continued until July 25, except for a 4-day period of employment within that larger period. However, in the earlier part of 1969 prior to June 24, he had no trouble receiving work through the Union. In April during a school spring vacation he appeared at the hall for a referral and immediately received work reinforcing concrete for a period of about a week from Martin & Nettraur Contracting Company at Bellefontaine, Ohio. At the end of the week's work, he returned to his high school teaching position. Similarly, on June 9 on his first call at the Union's hiring hall after school had let out for the summer, he received a referral almost immediately. Business Agent Clark called to him, "Hey, teacher," and signed him up for a reinforce- ment job with the Ziegler Construction Company at a high school under construction at Fairborn, Ohio. Sydor worked on this job for a period of 2 weeks until June 23 under Foreman Earl B. McHugh He and the shop steward, Jack Elam,'volunteered for a layoff on June 23 when it appeared that the job was nearly completed, in accordance with common practice and as a courtesy to Foreman McHugh as this enabled him to keep on the job a new man who was McHugh's friend. Thereafter from June 24 to July 24, except for a few days as hereinafter noted, Sydor's good fortune in obtaining referrals from the Union's exclusive 181 hiring hall ended . Notwithstanding virtually a daily appearance at the Union 's hall for employment, the only referral he received was for 4 days from June 30 through July 3 with Beaver Steel Erectors at the Wright-Patterson Air Force Base . The job was as- signed to him by William F . Veal, assistant business agent in the absence of Senior Business Representa- tive Clark . The job also involved reinforcing concrete . On this job Sydor worked directly under the supervision of Foreman Jim Carperter On July 3 when the job on hand was just about completed and Sydor was facing a layoff , Carpenter instructed Sydor to report to Foreman Raymond Smith', then on the premises , for work under Smith the follow- ing week at a new worksite at St . Marys, Ohio. Sydor walked over to Smith whom he had met only the day before and told him what Carpenter had said. Smith uttered a remark which Sydor described as a profanity and told Sydor that he would not work with him. He reported this to Carpenter and the two agreed that it would be best for Sydor to return to the hiring hall and seek another referral. Sydor did this on the next workday , Monday, July 7. Except for the above -described 4-day period of employment and 1 other day, Sydor 's credited testimony shows that he presented himself at the hiring hall for referrals every workday the hall was open from June 24 to July 24, inclusive , between the hours of 6:45 to 7 a m. Although many jobs were called and unfilled during this period, Sydor was completely unsuccessful in obtaining a referral. When jobs were called by the business representa- tive, bookmen belonging to Local No . 290 would present themselves and receive the referrals they desired. Sydor from the beginning adopted the pol- icy of presenting himself for a referral only when a job was called for which there were no takers He followed this policy and procedure because he felt that he didn 't have the right to cut in on bookmen who made their sole living as ironworkers whereas his own principal source of income was from his profession as a teacher. He frequently told those in the hiring hall, "I don 't want to cheat any bookman out of his job." During the 26-day period here involved, an average of 15 to 30 applicants for employment showed up each morning at the hiring hall On June 24 when Sydor asked Assistant Business Represent- ative Veal for one of the jobs for which there were no takers , Veal replied that he was sending out only bookmen. On June 25 when Sydor asked Veal why he couldn't have one of the unfilled jobs, Veal said it was because, "You loafed on the last job " The reference was to the above -noted job Sydor had taken with the Ziegler Construction Company at Fairmont under Foreman McHugh . Surprised by the comment , Sydor immediately drove over to where McHugh was working and asked him if he ' Erroneously named as Bill Smith by Sydor in his testimony 427-835 0 - 74 - 13 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had made complaints about his work. The credited testimony of Sydor shows that McHugh denied that he had made any complaints. Sydor that same morning then returned to the union hall, told Veal about McHugh's denial, and asked for a job with McGraw Construction at Middletown, Ohio, which was still unfilled Veal denied him the referral with the statement, "Ironworkers didn't take teachers' jobs, so [why] should I [Sydor] be over there more or less taking ironworkers' jobs." On June 26, Sydor asked Veal for a referral to a job with McGraw Construction at a worksite at Middletown as he had the previous day, work which had been called but not filled Veal turned him down again on the ground that ironworkers don't take teachers' jobs and that teachers should not take ironworkers jobs. But he did offer Sydor a referral to a job at Lima, Ohio, which none of the bookmen would take because Lima was so far distant from Dayton as to require nearly 150 miles of daily commuting. Resentful that he should have to take a hardship job that bookmen had rejected although he paid a "dobie" fee to the Union similar to union dues, Sydor on this first offer of an assign- ment to Lima also turned the referral down. On June 27 Secretary-Treasurer Deaton in the absence of Clark and Veal was in charge of calling out job referrals. The credited testimony of Sydor shows that he heard Deaton call out two job refer- rals for work in Dayton and that the jobs went un- filled as he saw none of the applicants in the hall take the openings. However, when he requested Deaton for one of the jobs he was told they had been filled. Although he had turned down a Lima job the previous day, he then asked for one of the Lima jobs which had been called but remained un- filled. Deaton declined with the statement, "I can't send out any permit men." On Monday, June 30, the next workday, Veal as- signed Sydor to the aforementioned job with Beaver Steel at Wright-Patterson Air Force Base which lasted as stated through July 3. Sydor was at the hiring hall the very next work- day, Monday, July 7, to seek another referral. At the hall he met Earl McHugh, the foreman he had worked under for the Ziegler Construction Com- pany at Fairmont earlier in the summer from June 9 to 23, who invited him to join his crew on a job reinforcing concrete he was supervising in downtown Dayton for B G. Danis 5 Sydor asked Business Representative Clark for a referral to the job so that he could accept McHugh's invitation. Although McHugh is Clark's half-brother, Clark told Sydor, "You ain't going nowhere, I'm still calling up jobs here " He got no job that day although the Lima jobs were also still unfilled. On July 8 and 9 all jobs were filled except jobs at Lima, but Sydor was not given a chance at one of them which he wanted despite the extremely long- distance commuting involved as he "was getting pretty hungry." On the latter date Sydor asked Clark why he wasn't being referred out Clark replied, "You've been popping off, and we're tired of your [obscene word] " Embarrassed by Clark's hostility, Sydor left the hall without getting a refer- ral. On July 10 and I I no jobs were called and Sydor did not get sent out. The next workday, July 14, Sydor again appeared at the hall. Some jobs that were called were not filled, but Sydor did not get a referral On July 15 and 16 Sydor again got no referrals although many jobs were called but Sydor could not recall whether any jobs were filled on those 2 days. On July 17 Clark offered a referral to an ironworker from California who declined the job. Although the job went unfilled, it was not of- fered to Sydor. On July 18 Clark had such difficulty filling orders for jobs that he became angry and exhorted the bookmen in the hall to take the proffered jobs, but many declined because they were waiting for jobs that called for overtime at double pay of $12.30 an hour. Although Clark was unable to fill all the or- ders he had for jobs, he did not offer Sydor a refer- ral. Two other permit men at the hall, Tom Watson and John Ruskis, also did not get referrals. On Monday, July 21,6 many jobs were unfilled but Sydor again did not get a referral on that day. Clark, anxious to fill orders for ironworkers, walked into the hall to solicit applicants to take jobs. He turned to permit man Watson and asked if he could tie rods (reinforcing concrete); Watson avidly replied in the affirmative but when he acknowledged on inquiry that he did not have a union membership book, he likewise did not get a referral that day. On July 22 at least two jobs went unfilled, a job at Lima and a sheeting job elsewhere, but again no jobs were offered to Sydor. Similarly there were un- filled jobs on July 23 which were not offered to Sydor. 5 This finding is based on Sydor's credited testimony c That same day Sydor engaged another permit man at the hall, John Ray, in a conversation During the course of their conversation, Assistant Business Agent Veal called Ray aside and spoke to him privately When Ray resumed his conversation with Sydor, he related to Sydor a remark Veal had made about Sydor At the trial, counsel for General Counsel questioned Sydor as to what Ray tole him Veal had said about him (Sydor) The Trial Examiner sustained an objection to the question on the ground of hearsay although the answer given to the question was relevant, and granted a motion to strike the answer Based on a technical argument by counsel for General Counsel that the question was permissible under the provisions of sec 5 of the Administrative Procedure Act, the Trial Ex- aminer vacated the ruling on the hearsay objection and deferred decision on the objection for determination in this Decision , pending study of the text of the act which was not available at the hearing An examination of the Administrative Procedure Act discloses that the contention of counsel for General Counsel is without merit The Rules and Regulations of the Board require that hearings "be conducted in accordance with the rules of evidence applicable in the district courts of the United States under the rules of civil procedure for the district courts of the United States ," so far as practical Accordingly the Trial Examiner sustains the objection to the question on the ground of hearsay and grants the motion to strike the answer to the question IRONWORKERS LOCAL UNION NO. 290 On July 23,' after again failing to get a referral, Sydor contacted a number of labor leaders in an ef- fort to get help in obtaining work through the hall. Among such contacts, he spoke to Russell Lane, president-elect of the Dayton Trades Council who would soon be successor to the then president, George Clark, the Respondent's business represent- ative from whom Sydor had been unable to get any referrals during the period here under discussion. Prior to contacting Lane, Sydor on June 18 had sought the aid of a Board attorney at the Board's Regional Office in Cincinnati in obtaining referrals out of the Union's exclusive hiring hall The Board attorney gave him forms for the filing of unfair labor practice charges, but urged him to first seek an amicable settlement. Sydor filed his charge the same day. Following Lane's advice that he refrain from calling at the hall on July 24 but that he report there the next day, Sydor presented himself at the hall again on the 25th. By this time Clark had received a copy of the charges Sydor had filed with the Board. Clark through the sliding glass window of his office called out several job openings at Lima. Veal, Clark's assistant, then went up to per- mit men John C. Cooper, John Ray, and John Ruskis, individually, and asked each of them separately if they would accept job referrals to Lima Like Sydor, they had been unable to get referrals to unfilled orders out of the hall during much of the same period that Sydor was unable to get referrals 8 The three men quickly accepted the bid for their services at Lima and walked over to the window at Clark's office to receive their refer- ral slips. Veal then approached Sydor and also asked him if he would accept a job referral to a construction project at Lima. Sydor similarly readily agreed and walked up to Clark's office for his referral slip. Sydor's credited testimony shows that Clark, after giving him his referral slip, said to him in a harsh and angry voice, "I'm giving you this job because I have to, but you better withdraw those .. charges."9 Ruskis was present when Clark made that remark to Sydor, but remembers the tenor of the remark somewhat differently as, "Now, you should drop those charges." Clark's version of the remark he made to Sydor is still different. He testified that he told Sydor, "You ought to drop them charges." The Trial Examiner credits Sydor's harsher version of Clark's remark. Ruskis at the time of his testimony, although he had recently obtained an out-of-town book, was still de- pendent upon the Union for work referrals Clark for obvious reasons would be inclined to soften his version of the actual remark he made to Sydor Although Clark's retort to Sydor that he had better withdraw his charges was made after he had r The date is erroneously shown in the transcript as July 25 " This finding is based on Sydor 's credited testimony " The omission marks indicated the omission of a "cuss word " which is 183 given him a referral slip to a job at Lima, the Trial Examiner infers and finds from the remark that it was a threat to Sydor that he would thereafter be referred for employment with construction em- ployers provided he withdrew the charge he had filed against the Union. This finding from the record substantially establishes the allegations of paragraph 10 of the complaint which states that on the aforenoted date of July 25 the Union restrained Charging Party Sydor in the exercise of rights guaranteed in Section 7 of the Act by Clark's con- duct in telling Sydor "that he would be referred for employment with construction employers provided the Charging Party withdrew the charge which he had filed against the Respondent in this instant case." Accordingly by the conduct of the Union here under consideration, the Union is in violation of Section 8(b)(1)(A) of the Act. Shortly before the trial herein commenced, per- mit holders Ruskis, Cooper, and Ray went to Char- leston , South Carolina, where they were unknown, to take and pass qualifying tests from an ironwork- ers local there for membership in that local in order to improve their chances of getting referrals out of Local No. 290 at Dayton. Within a week after their visits to Charleston, they returned to Dayton. The record supports the inference that the examinations given by the Charleston local were much easier to pass than the tests given by Local No. 290 for membership in No. 290. Sydor's employer on the Lima job was Mid- States. He worked on that job from July 25 to Au- gust 31 when the project he was on was completed. His credited testimony shows that he never received a criticism on his work for Mid-States in the 5 weeks he worked at its Lima worksite. The job he had with Mid-States was not one of the jobs that had been called but not filled during the 26- day period he unsuccessfully sought employment at the Union's exclusive hiring hall. In that period the Union had had requests from a number of contrac- tors, including Flohr Construction, for ironworkers to work at building sites in Lima which were not of- fered to Sydor and other permit men. Upon the completion of Mid-States construction project in Lima on August 31, Sydor returned to his teaching job in the public school system of Dayton The evidence summarized, shows that during the 26-day period Sydor was in attendance at the Union's hiring hall but unable to get a job referral the Union was in receipt of but did not fill orders for ironworkers from McGraw Construction, Flohr Construction, B. G Danis, Johnson Construction, and a number of other contractors in the Dayton area. Under cross-examination , Clark readily acknowledged that he could have sent Sydor out on the term Sydor in his testimony substituted for the actual cuss word used by Clark, presumably an obscene term 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD jobs during the 26-day period of nonreferrals here under discussion. Clark's primary excuse for not referring Sydor out in that period was that he had had complaints from three contractors for whom Sydor had worked earlier in the year that Sydor had been laying down on his jobs. Admitting that Sydor had consistently done good work in all prior years, Clark testified that in 1969 Sydor "turned sour for some reason .." Continuing along this line, Clark testified, "But I am saying this, if the man would have done his work he would have been working . because I need men in a bad way, and, as you heard from Beaver Steel, they needed men. They have orders in continuously "10 The second excuse offered by Clark for not refer- ring Sydor to jobs in the period under discussion is that Sydor was not at the hiring hall during various dates in June and July when jobs were being called and filled. As the Union keeps no registers of appli- cants who apply for referrals, Clark's testimony that Sydor was not present on the dates in question is based entirely on his memory. Inasmuch as there were as many on the average as 15 to 30, and sometimes as many as 50, applicants present at the hiring hall every morning during the 26-day period under discussion and Clark under cross-examination was unable to recall the names of any of such appli- cants, the Trial Examiner is unable to credit Clark's testimony that he especially remembered that Sydor was not at the hall during certain dates in the mentioned period. Similarly the Trial Examiner does not credit the testimony of former permit man Ruskis that in the period July 14 to 24, he saw Sydor at the hiring hall only twice. A lapidarist or precious stone cutter by choice and a recent iron- worker by necessity, Ruskis' conflicting testimony and demeanor did not inspire confidence. Some 3 weeks prior to his testimony herein, he traveled to Charleston, South Carolina, to take and pass a qualifying examination from a local there and thus became an out-of-town bookman in order to enhance his chances of getting work out of Local No. 290's hiring hall. Although called as a witness in behalf of Local No. 290, much of his testimony was adverse to Local No 290. The Trial Examiner, as aforenoted, credits Sydor's testimony that he was at the Respondent's hiring hall for purposes of referral every morning from June 24 to July 25, ex- cept July 24, which was the day he sought the aid of union leaders in the Dayton area in securing referrals out of Local No. 290's exclusive hiring hall. Clark's final stated reason for not referring Sydor out in the period here under discussion is that he was unsuited for many of the referrals made in the period because of lack of experience, particularly on jobs of great hazard. While it is undoubtedly true that some jobs were called for which Sydor was not by training or experience qualified to han- dle, Clark's own testimony shows that he could have referred Sydor out on jobs which were within his experience, particularly on reinforcing and structural work for which there was greater demand than supply." With the above-noted dispositions of the Union's second and third excuses for not issuing referrals, there thus remains for consideration only the question of whether Local 290 refused work refer- rals to Sydor, not because he was not a union member, but because it had complaints about the quality of his work, and, if so, whether under the Act and under the collective-bargaining agreement Local No 290 has the legal right to refuse referrals to applicants on whose prior work performance it has had complaints from employers Commendably, Local No. 290 in its brief admits that, "Undeniably, the Charging Party was discriminated against," but seeks to legally justify its action in refusing referrals to Sydor as a "discrimination based on sound hiring hall policy and with just cause." It asserts that its admitted discrimination against Sydor was not "un- lawful discrimination." Consideration will be given first to the question of whether Local 290 has had bona fide complaints about Sydor's work performance, and, if so, whether such complaints were the real cause for the admitted discrimination against him in the matter of job referrals or were merely pretexts for refusing him referrals because he was a permit man and not a union member . It may again be noted that for the 5 or 6 years that Sydor worked out of Local No. 290's hiring hall prior to 1969, the Union never had any complaints about the quality of his work per- formance from any of his employers. The Respon- dent Union claims that it had its first complaints about Sydor's work performance in 1969 and from three different contractors or employers. Business Respresentative Clark testified to these alleged complaints in justification for his not referring Sydor out for employment in the 26 days here under consideration. To support his contention, the Respondent Union called on Clark's half-brother, Earl McHugh, for testimony. McHugh is a member of Local No 290 and has been an ironworker for 24 years. He admits that in a prior year when he worked as a foreman for Levitan Construction Company and Sydor worked under him that he found Sydor to be "a good rodman," or reinforcer. McHugh was also Sydor's foreman on the hereto- fore mentioned Ziegler construction project at Fair- born from June 9 to 23. There, too, McHugh found Sydor to be a good rodman when he commenced work on the project, but he claims that within a short time Sydor slowed down and did not carry his full load of the work with resultant complaints from `The reference is to the testimony of Raymond Smith, foreman for Beaver Construction Company " Even if Sydor had missed some days at the Union's hall, referrals on any of the days he was present at the hall could have resulted in employ- ment for all or most of the 26 days he went without referrals IRONWORKERS LOCAL UNION NO. 290 185 Sydor's coworkers that they would quit unless Sydor carried his end of the job. McHugh testified that he made complaints about Sydor's per- formance on the Ziegler job to Clark and to Clark's assistant Veal. As heretofore noted when Sydor heard about the complaint from Clark, he im- mediately set out to see McHugh and Sydor's credited testimony shows that McHugh denied that he made any complaints to Clark about Sydor's work. McHugh's own testimony shows that he fired four or five bookmen or union employees on the Ziegler project for incompetence, but did not fire or seek to lay Sydor off, but on the contrary that Sydor was kept on the project until it was nearly completed when Sydor and Shop Steward Jack Elam volunteered for layoff in accordance with common practice. Prior findings show that McHugh sought Sydor's services at the hall later that summer. From these facts, the Trial Examiner does not credit McHugh's testimony that there was anything wrong with Sydor's work performance on the Ziegler project. Another witness called by the Union to support its contention that Sydor's work performance in 1969 was unsatisfactory was William T. Kelly who has been a member of Local No. 290 for 25 years. At the times here pertinent, Kelly was field superin- tendent for Beaver Steel Erectors with supervision over iron construction at nine different worksites, including the aforementioned worksite at the Wright-Patterson Air Force Base where Sydor worked as a rod buster (reinforcing) under the direct supervision of Foreman Carpenter from June 30 through July 3 Kelly testified that on inspection tours to the Wright-Patterson worksite he had occa- sion to observe Sydor at his work on 2 different days, the last being July 3, and that it was his im- pression that Sydor was not doing his job to the best of his ability by not carrying his end of the load Nonetheless, on the very same day, July 3, when he last purportedly observed Sydor doing un- satisfactory work he directed Carpenter to send Sydor over to another worksite, St. Marys, the fol- lowing Monday on another rod busting assignment. Prior findings above show that Carpenter relayed this instruction to Sydor with the further instruction that he let Raymond Smith, who was to be foreman on the St. Marys project, know about his new work assignment but that Smith declined to have Sydor work for him at the St. Marys project. Kelly testified that he ordered this transfer of Sydor to St. Marys notwithstanding his dissatisfaction with Sydor's work performance because of the shortage of ironworkers. Foreman Carpenter, who was in a far better position to evaluate Sydor's work per- formance, was not called by the Union to testify on the quality of Sydor's work during the 4 days that Sydor worked under his direct supervision. Sydor's credited testimony shows that he received no criti- cism on his work from Carpenter. Sydor's testimony further shows that Carpenter is "a very speedy and efficient pusher [foreman]" and that to stay and work under Carpenter for the 4 days he was on the job was in itself "a test of efficiency." The evidence shows that Sydor's transfer to St. Marys was directed at a time when the rod busting work at the Wright-Patterson project was nearing completion. Under the above facts, the Trial Examiner does not credit Kelly's testimony that he found Sydor's work performance unsatisfactory The mere fact that Kelly called for Sydor's services as a rod buster at another jobsite when the work at Wright-Patter- son was near completion is proof in itself that Sydor's work was at least acceptable enough for continued employment because otherwise Kelly would have made an effort to replace him The Union's last witness in support of its conten- tion that Sydor's work performance was unsatisfac- tory was the aforementioned Raymond Smith, age 27, and a member of Local 290. Smith at the times here involved worked as a foreman for Beaver Steel Erectors at the Wright-Patterson worksite. He was sent there by Field Superintendent Kelly to assist Foreman Carpenter. Smith's testimony shows that he regarded Carpenter as general foreman and that he took instructions from him. Smith testified that Sydor worked under him in the several days that Sydor was on the Wright-Pat- terson project. This is completely contrary to Sydor's testimony that he worked directly under Foreman Carpenter and that he hardly knew Smith Moreover, Smith's testimony is also directly contra- ry to Field Superintendent Kelly's testimony that Sydor worked under Carpenter. It also appears from Sydor's testimony that Smith was at the Wright-Patterson worksite only a day or two of the 4 days that Sydor worked at that site. Smith's own testimony shows this to be true inasmuch as Smith acknowledged that in the week here under discus- sion (June 30, a Monday, through July 3, the Thursday preceding the Fourth of July) he had worked at a different jobsite before coming to Wright-Patterson. From the above, the Trial Examiner finds and concludes that Smith was never at any time Sydor's foreman at the Wright-Patterson jobsite. Smith testified that in his alleged capacity as Sydor's foreman he found Sydor's work unsatisfactory, but inasmuch as Smith was not as claimed Sydor's foreman, this testimony is wholly discredited. The Trial Examiner also finds untrustworthy other aspects of Smith's testimony. As heretofore noted, Sydor on Foreman Carpenter's instructions on July 3 contacted Smith and told him that he was as of the following Monday to report for work at the St. Marys worksite. Smith admits that Sydor did speak to him as indicated, but from there on Smith's testimony is in direct conflict with Sydor's. Sydor testified that when he presented himself to Smith on June 3 with the information that he was to work under him at St. Marys, Smith uttered a profanity and declared he wouldn't work with Sydor Smith denied that he made such a refusal but on the con- 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trary testified that he instructed Sydor to report to the St. Marys job project the following Monday morning. This denial and testimony is not credited. The Trial Examiner finds Smith to have been a wholly unreliable witness. SUMMARY In summary the Trial Examiner finds and con- cludes that Respondent has not presented any credible testimony that Sydor's work performance in 1969 was not satisfactory. It is difficult to believe that a man whose work like Sydor's was, admit- tedly, consistently satisfactory for some 5 or 6 years prior to 1969 would suddenly turn sour in 1969. It is significant that when Sydor finally attained a referral to Mid-States at a worksite in Lima he was kept on that job for approximately 5 weeks until August 31 when the project was completed and he was in any event obliged to return to his regular teaching activities. In that long period of employ- ment he never received any criticism of his work 12 In an earlier 1969 employment it is significant that he was kept on a referral to Ziegler Construction Company from June 9 through the near completion of the project on June 22 although four or five bookmen on the same project were fired for incom- petence. If he had been incompetent, surely he too would have been fired. The record discloses that starting June 24, 1969, and continuing for about a month a hostility developed in Local No. 290 against ironworkers who were not members of any ironworkers local. This is evident from the fact that although the Union's business representatives in that period had orders for ironworkers they could not fill from the membership of Local No. 290 or by out-of-state union members they declined to give referrals for such job openings to permit men. Business Representatives Clark and Veal stated on several occasions in the hall and in conversations with Sydor that they were referring only "bookmen" and were not referring permit holders. The record dis- closes that Sydor was not the only victim of this dis- crimination in favor of bookmen. Permit men Ruskis, Ray, and Cooper had similar difficulty getting referrals out of Local No. 290's exclusive hiring hall. To overcome this difficulty they traveled all the way to a local at Charleston, South Carolina, where it was easy to pass an ironworkers qualifying examination, passed the examination, and returned to Dayton as "bookmen" shortly be- fore the trial of this case opened. The record shows that this hostility on the part of Local No. 290's business agents toward permit holder Sydor was especially strong because they felt that inasmuch as Sydor made his regular living as a high school teacher he was an interloper in the ironworker trade. This hostility expressed itself in such greetings to Sydor as, "Hey, teacher," and in re- marks such as, "Ironworkers didn't take teachers' jobs, so why should Sydor be over there more or less taking ironworkers' jobs."13 The record amply demonstrates that Local No. 290 discriminated against Sydor in the 26-day period here involved by failing to give him available referrals for employment because he was not a union member. The record leaves little doubt, as it is admitted by Business Representative Clark, that Local No 290 could easily have found jobs for Sydor if it had been so disposed. The Respondent Union in its brief concedes the discrimination against Sydor in the matter of job referrals but de- nies that this was because he lacked union member- ship, but on the contrary seeks to justify the dis- crimination by the above-noted defenses, with chief reliance on the defense that Sydor's alleged poor work performance in the forepart of 1969 justified the discrimination. The foregoing analysis of the evidence and factors of demeanor show that the Union's defenses against the admitted discrimina- tion are without merit Based on the entire record, the Trial Examiner finds and concludes that the Union's excuses or defenses for the discrimination are pretextual Accordingly, it is found and con- cluded that the conceded discrimination was an un- lawful discrimination under the Act. With the above-noted finding that there is no validity to the Union's contention that Sydor's work performance in his early 1969 work referrals was unsatisfactory and the resultant conclusory finding that Sydor was discriminatorily refused referrals because of his lack of union membership, it becomes unnecessary to pass on the Respondent Union's contention by way of defense that it has the right under the Act and under its collective-bar- gaining agreement to refuse referrals to applicants solely because of bona fide belief that their work performances on prior referrals have not been satisfactory. But another facet of the Union's dis- criminatory operation of its exclusive referral system requires consideration It is at once evident from an examination of the collective-bargaining agreement that although it gives the Union the right to select and refer appli- cants on the basis of their qualifications as described in the four classifications of ironworkers set forth in the contract, the agreement does not give the Union the right to pick and choose between two or more applicants in the same priority ix The record contains a letter from Mid-States, Sydor's Employer, dated August 29, 1969, to Local No 290 (Resp Exh 2 ) The letter requests Local No 290 not to send Sydor and three other named ironworkers to the Company again for employment "because we were very dissatisfied with them " However , no representative of the Company was called by the Union to testify as to Sydor's work performance and to be subject to cross- examination thereon The letter was sent to Local No 290 after Sydor had filed his charge against the local Under all of the evidence of record, the Trial Examiner does not give any weight to the Mid-States letter 13 This quotation has been editorialized slightly to make it more gram- matical IRONWORKERS LOCAL UNION NO. 290 187 group on the basis of the Union's comparative evaluation of their relative competence, but im- poses upon the Union the absolute requirement to make selections for referrals solely on the basis of priority of signatures of applicants on the register for that group. In other words, the contract requires that the first referral shall go to the applicant whose signature is first on the register for his priority group. In the Trial Examiner's opinion any deviation by the Union from the requirement of the collective- bargaining agreement that it "shall list the appli- cants within each group in the order of the dates they register as available for employment" may be considered, among other facts, as an indication of the discriminatory operation of the Union's exclu- sive hiring hall privileges, contrary to the Act. Although contracts similar to the one here under consideration have long been held valid , the Board and the courts have been zealous in protecting ap- plicants for employment under exclusive referral systems from the discriminatory operations thereof favoring union members against nonunion appli- cants.f4 In the instant case the Union, contrary to the requirement of its collective-bargaining contract, has for years failed to keep any registers what- soever for job applicants to sign, but instead sub- stituted the "sight and memory" of its business representative of applicants in attendance at the hiring hall in making selections and referrals for jobs. The Trial Examiner finds that this deviation by the Union from the express requirements of its contract for the maintenance of registers, in com- bination with all the other circumstances of record as found above, is a further indication of the Union's discriminatory operation of its exclusive referral system. From the foregoing findings of fact under discus- sion in the Summary, the Trial Examiner finds and concludes that the Respondent Union has engaged in unfair labor practices as alleged in paragraphs 7, 8, and 9 of the complaint in violation of Section 8(b)(I)(A) and (2) of the Act. Upon the basis of the above findings of fact and upon the entire record, the Trial Examiner makes the following CONCLUSIONS OF LAW 1 The Association and its members, Mid-States, G. B. Danis, Maxon Construction, Johnson Con- struction, McGraw Construction, and Flohr Con- struction, among others, are employers engaged in commerce within the meaning of the Act. 2 Ironworkers Local Union No. 290 is a labor organization within the meaning of the Act. 3. Ironworkers Local Union No. 290, by the un- fair labor practices described hereinabove, has vio- lated Section 8(b)(1)(A) and (2) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found that the Respondent en- gaged in certain unfair labor practices in violation of Section 8(b)(1)(A) and (2) of the Act, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As the discriminatory practices in the operation of the Union's referral system appear to have stemmed directly from the Union's departure from the procedures prescribed in the collective-bargain- ing agreement , designed at least on its facets for the prevention of any discrimination in job referrals between union members and nonunion members, it is recommended that the Respondent Union shall be ordered and directed to hereafter meet all requirements of the agreement in the matter of job referrals as set forth in detail therein and in all suc- ceeding collective-bargaining agreements which of necessity must similarly contain the same or sub- stantially equivalent requirements to meet the requisites of the Act. More specifically and in accordance with the Union's own collective- bargaining agreement, it is recommended that the Union be required to main- tain separate attendance registers or books of record for each of the four classes of applicants for employment designated in the agreement as group "A," group "B," group "C," and group "D," to ac- curately, fairly, and nondiscriminatorily reflect the operation of its referral system for the hiring hall. Each day of operation shall be recorded on a separate page in each of the four attendance re- gisters or books. The names of all employee appli- cants coming to the hall shall be recorded on the day of their appearance in the order of arrival in one of the four attendance registers appropriate for the applicant A new and complete attendance re- gister or list should be made on each succeeding " Local 357, International Brotherhood of Teamsters, Chauffeurs, Warehouseman and Helpers of America [LosAngeles-Seattle Motor Ex- press] v N L R B , 365 U S 667 (1961 ), Local Union No 269, Interna- tional Brotherhood of Electrical Workers, etc , 149 NLRB 768, enfd 357 F 2d 51 (C A 3, 1965), International Brotherhood of Electrical Workers, Local Union 340 (Walsh Construction Company), 131 NLRB 260, enfd. 301 F 2d 824 (C A 9, 1962), Local 7, International Association of Bridge, Structural and Ornamental Iron Workers , AFL-CIO ( Waghorne-Broin Company), 144 NLRB 925 '^ There is evidence in the case that only those employee -applicants who are members of Local Union No 290 get the first chance at jobs intended for the high priority group "A " This appears to result from the group "A" eligibility requirement that applicants shall "have been employed for a period of at least ( 4) years during the last (5) years by Employers" who are parties to the collective -bargaining agreements with Local Union No 290 Inasmuch as no issue has been raised on the question of whether the defini- tion of group " A" applicants in the collective-bargaining agreement, as it works out in actual operation , discriminates against members of sister lo- cals and nonunion applicants in favor of members of Local Union No 290, no determination of that question is intended by this Decision, directly or indirectly Cf Local Union No 269, International Brotherhood of Electrical Workers , etc supra 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD day for each of the four groups but carrying over and listing in the new list any names unreferred on preceding days. Since there can be disputes between the business agent and employees as to whether or not a particu- lar applicant was or was not at the hall on a particu- lar day (as there has been in this case between Busi- ness Representative Clark and Charging Party Sydor) and whether his appearance or nonap- pearance on the attendance register accurately reflects the factual situation, it is recommended that the Union be required to give applicants proof of attendance in the following manner: The busi- ness agent shall each day routinely prepare for each and every applicant a ticket or slip in duplicate, setting forth the applicant's name or initials, the priority group he belongs to, and the date and time of his appearance at the hall The business agent shall give the duplicate to the applicant and retain the original. He shall prepare the attendance re- gister for each priority group from the retained tickets and make up his referral lists therefrom. Variations or reasonable alternatives to the procedure set forth in this paragraph are not meant to be precluded and may be adopted, subject, how- ever, to the approval of the Regional Director for Region 9 or his agents. It will be further recommended that the Union be required to place the attendance registers of each of the four priority groups on a table or ledge in the hiring hall for easy access and inspection by em- ployee-applicants as a matter of right and without necessity of calling for the registers from the busi- ness representative, upon completion of each day's attendance entries in such registers It is recommended that the modus operandi of the hiring hall, as arrived at, be disclosed to the said Regional Director or his agents and that it should be made available, at reasonable times, to the said Director or his agents for i year thereafter. Again in accordance with the Union's own col- lective-bargaining contract, it is recommended that the Union be required to "refer applicants to the Employer by first referring applicants in Group `A' in the order of their places on said list [attendance registers] and then referring applicants in the same manner successively from the lists in Group `B,' then Group `C', and then Group'D."' It is also recommended that the Union be required to scrupulously follow all other provisions of the collective-bargaining agreement under its referral clause to assure the nondiscriminatory operation of its exclusive referral system. As it appears from Business Representative Clark's own admission that due to the heavy de- mand he had for ironworkers he could have kept Charging Party Sydor in employment by referrals throughout his 26-day period of unemployment, it will be recommended that the Union make Sydor whole for any loss of earnings he may have incurred in said 26-day period by reason of the discriminato- ry conduct against him. Although the computation of backpay will be a matter for determination in the compliance stage of this proceeding, it may be noted that the 26-day period in which Sydor had no referrals includes weekends during which it is not likely he would have been asked to work, even if he had received job referrals that would have lasted over the entire 26-day period. This is because the evidence shows that job referrals with a high poten- tial of overtime were gobbled up by applicants in group "A," the highest priority group, because overtime under the collective-bargaining contract pays double time or $12.30 per hour. RECOMMENDED ORDER Upon the basis of the above findings of fact, con clusions of law, and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is recom- mended that Ironworkers Local Union No 290, In- ternational Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, and George Clark, its business representative, and all other of- ficers, agents, and representatives, shall: 1. Cease and desist from: (a) Improperly and unfairly operating its exclu- sive system under its collective-bargaining agree- ment with the Association so as to discriminate against nonunion applicants for job referrals because they are not members of Local No. 290 or any other local of the International. (b) Attempting to cause or causing the Associa- tion and its employer-members to discriminate against employees or applicants for employment in violation of Section 8(a)(3) of the Act. (c) Restraining and coercing employees who have filed charges against the Union in the exercise of rights guaranteed in Section 7 of the Act by the conduct of its agents in telling such employees that they would be referred for employment with con- struction employers provided they withdrew their charges against the Union 2 Take the following affirmative action to effec- tuate the policies of the Act- (a) Make whole Charging Party Stephen Michael Sydor for any loss of pay he may have suf- fered by reason of the discrimination practiced against him , as set forth in the section of this Deci- sion captioned "The Remedy." (b) Conduct its exclusive hiring arrangement or practice in the general manner prescribed in the said Remedy section of this Decision, or in a manner reasonably equivalent thereto, including access of the Regional Director or his agents thereto as more fully set forth in "The Remedy." (c) Post at its principal office and its hiring hall copies of the attached notice marked "Appen- IRONWORKERS LOCAL UNION NO. 290 189 dix."'s Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by the Respondent Union's authorized representative, shall be posted by Respondent Union immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members and employee-applicants are customarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 9, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith." in In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings , conclusions, recommendations, and Recommended Order herein shall, as provided in Section 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 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board " shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 10 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government AND TO ALL OTHER JOB APPLICANTS, UNION OR NONUNION, FOR JOB REFERRALS THROUGH THE EXCLUSIVE HIRING HALL OF IRONWORKERS LOCAL UNION No. 290, INTERNATIONAL ASSOCIATION OF BRIDGE , STRUCTURAL AND ORNAMENTAL IRON WORKERS , AFL-CIO WE WILL NOT improperly and unfairly operate our exclusive referral system under our collective-bargaining agreement with As- sociated General Contractors of America, West Central Ohio Chapter of Dayton, Ohio, and its employer-members so as to dis- criminate against nonunion applicants for job referrals because they are not members of Local No. 290 or any other local of the Inter- national. WE WILL NOT cause or attempt to cause the said Associated General Contractors of Amer- ica, West Central Ohio Chapter of Dayton, Ohio, and its employer-members to dis- criminate against applicants for job referrals because they are not members of Local No. 290 or any other local or the International. WE WILL NOT restrain and coerce employees who have filed charges against Local No. 290 in the exercise of the rights guaranteed to them under Section 7 of the National Labor Rela- tions Act, by the conduct of our business representative or any other of our agents, in telling such employees that they would be referred out for employment with construction firms provided they withdrew their charges against Local No 290. WE WILL make Stephan Michael Sydor whole for any loss of earnings he may have suf- fered as a result of our discrimination against him. WE WILL in conducting our exclusive hiring arrangement or practice, maintain separate daily attendance records for employees in groups "A," "B," "C," and "D," as defined in our collective-bargaining agreement, in order to reflect accurately, fairly, and nondiscrimina- torily the operation of our referral system from the hiring hall in the manner prescribed in the Trial Examiner's Decision under the heading of "The Remedy," and, for a period of 1 year, we will disclose to the Regional Director for Re- gion 9 or his agents the manner of operation of the hiring hall. WE WILL assign all job referrals to employee- applicants strictly in accordance with the manner prescribed in our collective-bargaining agreement, to wit, "by first referring applicants in Group `A' in order of their places on said list and then referring applicants in the same manner successively from the lists in Group `B,' then Group `C,' and then Group `D."' IRONWORKERS LOCAL UNION No. 290, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, AFL-CIO (Labor Organization) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions, may be directed to the Board's Office, Room 2407, Federal Office Build- ing, 550 Main Street, Cincinnati, Ohio 45202, Telephone 5 13-684-3686