Plumbers & Steamfitters Local Union 60

732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Plumbers & Steamfitters Local Union No. 60 of the United Association of Journeymen and Ap- prentices of the Plumbing and Pipe Fitting Indus- try of the United States and Canada, AFL-CIO (Specialty Contractors, Inc.) and Billy W. McLel- land Plumbers & Steamfitters Local Union No. 60 of the United Association of Journeymen and Ap- prentices of the Plumbing and Pipe Fitting Indus- try of the United States and Canada , AFL-CIO (Specialty Contractors, Inc.; Mechanical Services Company, Inc.) and Calvin Beals. Cases 15-CB-1025 and 15-CB-1034 July 31, 1970 DECISION AND ORDER BY MEMBERS MCCULLOCH , BROWN , AND JENKINS On April 3, 1970, Trial Examiner John F. Funke issued his Decision in the above-entitled proceedings, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. He also found that the Respondent had not engaged in certain other unfair labor practices, and recommended that the complaints as to all allega- tions not specifically found to be in violation of the National Labor Relations Act, as amended, be dismissed. Thereafter, the General Counsel and the Respondent filed exceptions to the Trial Examiner's Decision, together with supporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the National 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 briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner to the extent consistent herewith.' 1. In the complaint issued in Case 15-CB-1025, the General Counsel alleges that "Respondent at- tempted to cause, and did cause, Specialty to discharge and refuse to reinstate or reemploy Billy ' At various places in his Decision , the Trial Examiner inadvertently refers to Charging Party McLelland as McClelland or McLennan The sub- stitution of the correct name is hereby made wherever the error occurs W. McLelland, and thereafter failed and refused and continues to fail and refuse to refer him for em- ployment with Specialty ... in violation of Section 8(b)(1)(A) and (2) ... of the Act." The Trial Ex- aminer found, and we agree, that the Respondent, by causing Specialty to lay off employee McLelland on August 4, 1969, violated Section 8(b)(1)(A) and (2) of the Act. The General Counsel excepts to the limited remedy for this violation recommended by the Trial Examiner, and we find merit in the ex- ception. Upon Specialty's execution of Respondent's col- lective-bargaining agreement under threat of strike on August 4, Respondent's representatives required Specialty to close the jobsite, discharge its non- union employees, and "start over like a brand new job," hiring through the contract hiring hall referral procedures. Respondent rebuffed Specialty's request to retain incumbent employees as permit men with the advice not to ask for any favors, and promised that the business agent would visit the jobsite sometime later "to straighten out" the per- mit situation. McLelland, an affected nonunion plumber, was informed of this and thereafter in his efforts to obtain restoration to his job, repeatedly checked with Specialty on whether the purpose of such visit had been accomplished. The promised visit was never made. However, work was resumed when the Respondent staffed the project with refer- rals from the hiring hall on August 11, 1969. The Trial Examiner's proposed Order terminating Respondent's backpay liability on August 11, 1969, is based on the premise that the violation ceased when Respondent referred applicants for employ- ment to Specialty apparently on the assumption that had McLelland been registered with the hiring hall he would have been referred. Such an assump- tion is unwarranted. Having caused the unlawful discrimination by, inter alia, refusing to permit McLelland to continue in his job as a permit man under the newly executed contract, Respondent caused Specialty to discharge and refuse to rein- state McLelland as alleged in the complaint. It can- not thereafter use the contract referral procedure as a means of avoiding liability for the discrimina- tion. Absent an actual valid referral of McLelland to Specialty or his reemployment, the discriminato- ry effect of Respondent's unlawful conduct con- tinues until such time as Respondent notifies Spe- cialty and McLelland that it has no objection to the reinstatement of McLelland to the job it refused to allow him to continue as a permit man under the 184 NLRB No. 79 PLUMBERS & STEAMFITTERS LOCAL UNION 60 733 contract and thereby unlawfully caused him to lose.2 Accordingly, we shall order the Respondent to reimburse McLelland in the manner set forth below in "The Remedy" section of this Decision. 2. In the complaint in Case 15-CB-1034 the General Counsel alleges that Respondent violated Section 8(b)(1)(A) and (2) of the Act by dis- criminatorily refusing on October 17, 20, and 21, 1969, to refer the two Beals brothers from its hiring hall to employment at Specialty. The Trial Ex- aminer recommended that this allegation be dismissed , reasoning that Respondent was not obliged to call list II men (who were "permit men") on Friday, October 17, after having exhausted list I ("book men") available for referral on that day, because the work was for the following Monday, October 20, and the referrals were not required to be made until then. We disagree. The record clearly shows that, before 8 a.m. October 17, Spe- cialty phoned Respondent to request nine plum- bers; that the men requested were to report for work on Monday, October 20; that under Respon- dent's written referral procedure at its hiring hall, jobs are to be "called out" between 8 and 9 a.m. (as they were on October 17); and that Respon- dent's contract with Specialty as relevant here pro- vides that employees shall report for work at the jobsite at 8 a.m. Inasmuch as Respondent's hiring hall at New Orleans is a distance of some 50 miles from Specialty's Houma jobsite, an applicant could not have been referred from the hall and still have reported to work the same day at the time specified in the contract. In these circumstances we find, contrary to the Trial Examiner, that all nine refer- rals requested before 8 a.m. were to have been made Friday, October 17, for 8 a.m. work Monday; that Respondent was therefore under its own procedure required to continue calling men from list II, after having exhausted list I, on both October 17 and 20; and that its "holding back" positions for list I men, ostensibly on the basis of the seniority preference reflected in the hiring procedures, was a pretext to discriminate against nonmembers who made up list II. We find, accordingly, that by refus- ing on October 17, 20, and 21 to refer Calvin and Merlin Beals for employment at Specialty, Respon- dent violated Section 8(b)(1)(A) and (2) of the Act. 3. The Trial Examiner also found that Respon- dent did not violate Section 8(b)(1)(A) and (2) when it refused to refer the Beals brothers to Mechanical on November 6, 1969. We find merit in the General Counsel's exception to this conclusion. The Beals brothers filed an unfair labor practice charge against Respondent on October 17. On the morning of November 6, they appeared at Respon- dent's hiring hall and signed list II , then stepped across the street for coffee. Meanwhile, before they returned to the hall, Respondent's business agent, Fink, called jobs for list II men . Although advised at the time that the Beals were just across the street, and although he still had two job requests unfilled, Fink refused to let a volunteer step outside to get the brothers, relying on the provision of the referral procedure that job applicants be "in" the hall to receive a work referral. The record shows, how- ever, that Fink recently had disregarded this very provision when he told someone in the hall to step outside to get an applicant, whose name was then recalled and who was issued a referral. It is plain that this disparate treatment accorded the Bealses, who had just filed charges against Respondent with the Board, was tainted by an unlawful motive, and violated Section 8(b)(1)(A) and (2) of the Act. The Remedy Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and take certain affir- mative action designed to effectuate the policies of the Act. Accordingly, as we have found that Respondent caused Specialty to lay off and deny employment to Billy McLelland because he was not a member of Respondent, we shall order that Respondent notify Specialty in writing, and furnish a copy to McLelland, that it has no objection to the employment of McLelland and accedes to his rein- statement by Specialty. Respondent shall make McLelland whole for any loss of pay he may have suffered by reason of the discrimination practiced against him , by payment to him of a sum of money equal to that he normally would have earned as wages from August 4, 1969, when the discrimina- tion against him resulted in his loss of work, until is- suance of the above-mentioned notification, less his net earnings. We have also found that on several occasions beginning on October 17, 1969, the two Beals brothers were denied referrals for employment when work was available and when other plumbers were referred. Inasmuch as this is the first specific date that discrimination against the Beals can definitely be found to have occurred, it will be or- dered that Respondent make whole Calvin Beals and Merlin Beals from October 17, 1969, for any loss of earnings suffered by each of them as a result = In view of our holding herein , we find it unnecessary to pass on, and do not adopt, the Trial Examiner's findings or recommended dismissal of the allegations that Respondent also violated Section 8(b)( 1)(A) and (2) by failing and refusing to refer McLelland to Specialty after August 4, 1969, based on his several contacts with persons handling referrals at the hiring hall 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the discrimination practiced against them. Such payment shall be equal to the amount of wages they would have earned but for the discrimination prac- ticed against them by Respondent. Backpay of each discriminatee shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, together with interest at a rate of 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716. CONCLUSIONS OF LAW 1. Specialty Contractors , Inc., Mechanical Ser- vices Company, Inc., and Hooker Chemical Cor- poration , are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By causing Specialty to lay off Billy McLel- land and to refuse to reinstate or rehire him on Au- gust 4, 1969, in violation of Section 8(a)(3) of the Act, Respondent violated Section 8(b)(2) and (1)(A) of the Act. 4. By discriminatorily refusing to refer Calvin Beals and Merlin Beals for employment at Specialty on October 17, 20, and 21 , 1969, Respondent vio- lated Section 8(b)(2) and (1)(A) of the Act. 5. By discriminatorily refusing to refer Calvin Beals and Merlin Beals for employment at Mechanical on November 6, 1969 , Respondent vio- lated Section 8(b)(2) and ( 1)(A) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 ( 6) and ( 7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the Respon- dent, Plumbers & Steamfitters Local Union No. 60 of the United Association of Journeymen and Ap- prentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, New Orleans, Louisiana, its officers , agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause Specialty Contractors , Inc., to lay off Billy McLelland and to refuse to rehire or reinstate him, or any other em- ployee, to encourage union membership in viola- tion of Section 8(a)(3) of the Act. (b) Discriminating in the hire and tenure of Cal- vin Beals or Merlin Beals by failing and refusing to refer them to work by reason of their nonmember- ship in Respondent Union. (c) In any like or related manner restraining or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds necessary to effectuate the pur- poses of the Act: (a) Make Billy McLelland , Calvin Beals, and Merlin Beals whole for any loss of pay they suffered as a result of the discrimination against them, in the manner set forth in the section of this Decision en- titled "The Remedy." (b) Notify Specialty Contractors , Inc., in writing, with a copy to Billy McLelland , that Respondent has no objection to the employment of McLelland and accedes to his reinstatement by Specialty. (c) Notify Specialty Contractors, Inc., and Mechanical Services Company, Inc., and mail a copy of each notice to Calvin Beals and Merlin Beals, that these men will have full use of the hiring hall facilities without discrimination in connection with referrals for employment. (d) Preserve and, upon request , make available to the Board or its agents , for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (e) Post in conspicuous places at its offices, meeting halls, and hiring hall, including all places where notices to employees , applicants for referral, and members are customarily posted , copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be main- tained by it for 60 consecutive 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 covered by any other material. (f) Notify the Regional Director for Region 15, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. ' In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall 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 " PLUMBERS & STEAMFITTERS LOCAL UNION 60 735 APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 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, T6024 Federal Building ( Loyola), 701 Loyola Avenue, New Orleans , Louisiana 70113, Telephone 504-527-6361. TRIAL EXAMINER'S DECISION WE WILL NOT cause Specialty Contractors, Inc., to lay off or discharge and to refuse to reinstate or rehire Billy McLelland or any other employee because he is not a member of our Union. WE WILL NOT discriminate in the hire and tenure of Calvin Beals or Merlin Beals by fail- ing and refusing to refer them to work by reason of their lack of membership in the Union. WE WILL NOT , in any similar manner, restrain or coerce employees in their legal right to join , or-if they choose-not to join the Union. WE WILL make Billy McLelland , Calvin Beals, and Merlin Beals whole for any loss of pay they suffered as a result of the discrimina- tion practiced against them. WE WILL refer Calvin Beals and Merlin Beals for employment without discrimination based on their lack of membership in the Union. WE WILL notify Specialty Contractors, Inc., that we have no objection to their hiring Billy McLelland and also notify Specialty and Mechanical Services Company, Inc., that Cal- vin Beals and Merlin Beals will have full use of our hiring hall without discrimination based on their lack of membership in the Union. PLUMBERS & STEAMFITTERS LOCAL UNION No . 60 OF THE UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. STATEMENT OF THE CASE JOHN F . FUNKE , Trial Examiner : Upon a charge in Case 15-CB-1025 filed September 15, 1969, by Billy W. McClelland , an individual , against Plum- bers & Steamfitters Local Union No. 60 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO , herein the Respondent, and upon a charge and an amended charge in Case 15-CB-1034 , filed October 17 and December 30, 1969, respectively , by Calvin Beals, an individual , against Respondent , the General Counsel filed complaints alleging Respondent vio- lated Section 8(b)(1)(A) and (2) of the Act. The answers of the Respondent denied the commission of any unfair labor practices. On January 7, 1970, the General Counsel issued an order consolidating said case and rescheduling the hearing in Case 15-CB-1025. The cases, with all parties represented , were heard before me at New Orleans , Louisiana, on February 17 and 18, 1970. At the conclusion of the hearing, the parties were given leave to submit briefs and briefs were received on March 19, 1970. Upon the entire record in this case and from my observation of the witnesses while testifying, I make the following: FINDINGS AND CONCLUSIONS I. THE COMPANIES INVOLVED Specialty Contractors , Inc., herein Specialty, is an Arkansas corporation having its principal place of business at El Dorado , Arkansas, where it is en- gaged in the mechanical construction business in several States, including the State of Louisiana. It is engaged in furnishing, pursuant to a $2 million sub- contract with Alodex Corporation, plumbing fix- tures, pipings, etc., for Alodex at Houma, Loui- siana. During the past 12 months, Specialty per- formed services valued in excess of $50,000 for en- terprises engaged in in the construction business in the State of Louisiana. Mechanical Services Company, Inc., herein Mechanical , is engaged in business as a main- 736 DECISIONS OF NATIONAL tenance and laborer contractor. During a represent- ative year Mechanical has received in excess of $50,000 for services performed for Hooker Chemi- cal Corporation at Taft, Louisiana. Hooker Chemical Corporation, herein Hooker, is a New York corporation having its principal place of business at New York, New York, where it is en- gaged in the processing, sale, and distribution of chemical products. In the operation of its Taft, Louisiana, plant Hooker transports chemical products valued in excess of $50,000 annually from Taft directly to places outside the State of Loui- siana. Specialty, Mechanical, and Hooker are engaged in commerce within the meaning of the Act. II. LABOR ORGANIZATION INVOLVED Respondent is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues The complaint in Case 15-CB-1025 alleges that on August 4, 1969, Respondent caused Specialty to discharge Billy McLennan and caused Specialty to refuse to rehire him because of his lack of member- ship in Respondent. Paragraph 8 of the complaint in Case 15-CB-1034_ alleges that on August 11, 1969, Respondent restrained and coerced employees by informing them that Respondent would give preferential treatment in referrals to a certain in- dividual because he had done picket duty for Respondent. Paragraph 9 of said complaint alleges that on Oc- tober 17, 20, and 21 Respondent caused Specialty to refuse employment to Calvin Beals and Merlin Beals by discriminatorily refusing to refer them for employment with Specialty because of their non- membership in Respondent. Paragraph 10 of said complaint alleges that on November 6, 1969, Respondent caused Mechanical to refuse to hire Calvin Beals and Merlin Beals by refusing to refer them to Mechanical for employ- ment because of their nonmembership in Respon- dent. Neither complaint alleges that either the working agreement between Respondent and Specialty or between Mechanical and Respondent or Respon- dent's referral rules were unlawful. The referral system under which Respondent operated is set forth in Respondent's "Amended Rules for the Referral of OUT-OF-WORK Jour- neymen." (G.C. Exh. 17.) The pertinent parts of LABOR RELATIONS BOARD these rules read: In order to protect the seniority rights and ac- crued fringe benefit rights of employees and their dependents there shall be three (3) OUT- OF-WORK lists for each above trade classifica- tions: LIST I: Journeymen who have been employed three (3) years within area jurisdiction of Local 60 for any contractor, or group of contractors, prior to Hiring System being placed in effect on October 1, 1960; or for a local employer one (1) year prior to the em- ployer signing an agreement with the Union; or for employers who have contributed to his behalf into the "Plumbers and Steamfitters Welfare Fund of New Orleans" for a minimum of 2000 hours during the five (5) year period immediately preceding his date of registering for work. If a question arises over a registrant's eligibility to be placed on LIST I, the registrant shall be required to furnish the proper information, i.e., letters from employers, payroll vertification, and/or Federal Income Tax forms, etc. LIST II: Any qualified journeyman who has previously worked in jurisdiction but who does not have the required number of hours as required above. LIST III: Any other applicant for work who has not worked within jurisdiction for con- tributing employers, but who has qualified for work by having passed a competency ex- amination given by New Orleans Joint Ap- prenticeship and Hiring Committee or other similar Joint Hiring and/or Examining Com- mittees for the Industry. REFERRAL OF MEN 1. Contractors request for journeymen shall be made to the Union Business Manager's of- fice not later than 4:00 P.M. each day for call-out the following morning. Upon the request of a contractor for journeyman, the Union (Dispatcher) shall refer competent and qualified registrants to that contractor in sufficient number required by the contrac- tor, in the manner and under the conditions specified in the agreement, from the separate appropriate out-of-work list on a first in, first out basis; that is, the first man registered shall be first man referred, except that: (a) Requests by contractors in writing for PLUMBERS & STEAMFITTERS LOCAL UNION 60 737 key men to act as supervisors, general foreman shall be honored without regard to the requested man's place on the out- of-work list. (b) Requests by contractors in writing for particular out-of-work journeymen previ- ously employed by the contractor and who have been laid off or terminated by the contractor within one hundred (100) days previous to the request shall be given preference of rehire and shall be dispatched to that contractor, regardless of the applicant's position on the out-of- work list. (c) Except as outlined above, contractor's requests received for referral of jour- neymen shall be called out in numerical order in Hiring Hall between hours of 8:00 A.M. to 9:00 A.M., daily, Monday to Friday, holidays excepted. The jour- neyman whose name is called out first, if present, shall be given the job referral. All journeymen's names on List I must be called out and be given preference or an opportunity to accept referral before List II or List III is called out. If any contrac- tor's called-out request is not filled by 9:00 A.M., then the Dispatcher (Agent) shall be authorized to fill the contractor's request after 9:00 A.M. to the best of his ability with qualified registrants for work. Any contractor's request for men for emergency work ; unloading of materials, etc., where journeymen are required im- mediately for work that cannot wait until the following morning 's "call-out," the Dispatchers or Agents shall use their judgment in filling these jobs on an emer- gency basis. (d) A job applicant must be in the Dispatch Hall to receive a work referral that is called out before 9:00 A.M. If any applicant turns down employment on three (3) different days; or is absent or refuses to answer three (3) job call outs during three (3) days without valid reason (each one day's absence shall count for one call out) shall have his name removed from out-of-work list and shall be required to re-sign the register to be put back on out-of-work list the date he re- signs in. The only exception for absence shall be illness of the registrant or his immediate family verified by a written statement from his physician, or evidence in writing that the applicant's absence, if not due to ill- ness, was due to causes beyond his con- trol, or was in the exercise of prior privilege granted under Rule 8. B. Case 15-CB-1025 Ralph Williams was superintendent for Specialty. Sometime in March 1969,' Williams commenced a subcontract job for Alodex at Houma, Louisiana, which lay within the jurisdiction of Respondent. Williams hired as plumbers on this job Ira Nebels, foreman and a union member; his son, Richard Wil- liams; Billy McLelland, the Charging Party; and a plumber named McElroy. All of these were non- members. On or about Friday, August 1, Eddie Fink, Respondent's business agent, came to the jobsite and told Williams to have Adolph Chandler, pre- sident of Specialty, at the Respondent's office on Monday, August 4. Respondent threatened to picket the jobsite if Chandler did not appear. On August 4, Chandler signed a collective-bargaining agreement with Respondent and Respondent agreed to let Ralph Williams work without a book. The question then arose as to the status of the three nonunion journeymen. Without resolving what I consider minor discrepancies in the testimony as to what took place at this meeting, I find that as a result the three nonunion plumbers were laid off and the hiring was to start "from scratch" at the request of the Respondent.' I find the allegations of the complaint supported insofar as they allege that on August 4 Billy McLelland was laid off by Spe- cialty at the request of Respondent in violation of Section 8(b)(1)(A) and (2) of the Act. The issue as to the failure and refusal to reinstate McLelland is obscure. Williams did not, in any event, make any requests for men until August 11 when Nebels and McElroy, a permit man, were sent back. Thereafter, Nebels made all direct requests to the hall for men. Williams stated he got all the men he needed but did not know whether Nebels ever asked for either McLelland or Richard Williams although he had "talked to him about it."3 Richard Williams was rehired at Houma, on September 15, after he received a work permit from Respondent. Although the General Counsel's brief does not dwell on Respondent's failure to refer McLelland, ' Unless otherwise noted all dates hereafter refer to 1969 2 I find nothing to support the statement attributed to Chandler (who did not testify) that he might have to shut the job down due to property problems Respondent's own witneses indicated that they were angry with Chandler, and understandably so, for trying to operate a nonunion job although he was considered a union contractor ' Nebels testified he never asked for McLelland because he was never instructed to ask for him 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the allegation still stands in the complaint . McLel- land's own testimony is that he visited the jobsite every day for a week after August 4 and saw Ralph Williams, who told him Fink would be down in a few days and things would be straightened out. He then returned to Plain Dealing , his home, about 365 miles from Houma. A week later he returned to Houma to find that nothing had developed. (The record indicates that by this time Ralph Williams , Neber, and McElroy had all been rehired .) A week or two later a man identified by McLelland as a supervisor for Alodex gave him 3 weeks ' work as a laborer at Houma, telling him that as soon as he got his permit he could go back to work as a plumber . McLelland testified that about September 2 he went to the hall with Richard Williams where they asked to see Fink . When Fink arrived Richard told him they had been sent to get a permit and Fink 's reply was that he then had 43 men "on the bench." Neither Wil- liams nor McLelland had, at this time, signed the out-of-work list, nor had they been advised it was necessary for them to sign it.' On cross-examina- tion McLelland admitted that he relied , almost totally, on either Chandler, Ralph Williams, or Nebel to get him a permit from Respondent, to notify him, and to put him to work. On McLelland 's own testimony I cannot find that Respondent at any time refused to refer McLelland to the Houma job because he was not a member of the Respondent Union and it shall be recom- mended that this portion of the complaint in Case 15-CB-1025 be dismissed. A journeyman who is brought under a union contract has some obligation to acquaint himself with the hiring rules and procedures and McLelland by his own testimony made no such effort. The rules were public and available and no further wet-nursing by Respondent was required. It shall be recommended that the complaint, in- sofar as it alleges Respondent caused Specialty to refuse to rehire McLennan , be dismissed. C. Case 15-CB-1034 Neither brief refers to the allegation in paragraph 8 of the complaint concerning an offer of preferential hiring to an employee for doing picket duty. The testimony educed in support thereof was so utterly trivial and frivolous that it may be as- ' Respondent's referral rules were posted at the hall but the first half of page one was covered by the notice required by another Government agen- cy , Nebels testified that he never told anyone he would be entitled to his job back Since he did not know if he would be back on the job himself On this particular issue I credit Nebels 6 Fink testified , credibly, that he told them he would have to follow the sumed that the parties agreed , sub silentio, to inter- ment of the allegation without formal rites. I concur and it shall be recommended that this allegation be dismissed. Paragraph 9 of the complaint refers to a refusal on the part of the Union to refer the Beals brothers to the Specialty job at Houma, on October 17, 20, and 21 . The Beals brothers, together with Angelo Giafaglione , had been working on the job on Oc- tober 6 when it shut down temporarily. Each of them was told by Nebels, job foreman, that they would be entitled to go back when the job reopened.5 The next day when the three reported to the Hall they told Fink that Nebels told them they were entitled to reinstatement and Fink said it was all right with him.6 On Friday, October 17, Giafaglione and the Beals were again at the hall when a call came in for nine plumbers to report to Specialty on Monday, Oc- tober 20. According to Giafaglione, Fink an- nounced the call and he and Achille Fink, who had also been working at Specialty, accepted and were given referrals.? Giafaglione asked about the Beals and was told by Fink he was saving the job for his book men. ( Book men were No. I list men.) Calvin Beals testified that he asked Fink if he would not be referred back to Specialty and received the same answer. Fink's testimony with respect to these inquiries is that he made the same response he had previously made-that he would follow the hiring procedures. (When the call for nine men came in on October 17 no journeyman was requested by name.) On October 21 four men were referred, complet- ing the complement . These were Robert Osborne, J. Rossi , E. LeBlanc, and B. Wood, all from the No. I list. The gravamen of the complaint of the General Counsel, as I understand it, is that Fink, having ex- hausted the No. I list of Friday, was compelled to call the No. II list, in which case the Beals would have accepted and would have been referred. Respondent 's contention is that since the Friday call was not to be filled until Monday it was required to wait until Monday to give the No. I men a chance to respond . Monday, however , hurricane warnings had issued , Fink was not at the union hall, and no work was performed at the jobsite. On Tuesday the call from Specialty was completed by a call of the No. I list, leaving the Beals without refer- hiring procedures which would require that the hiring foreman request them by name in writing Giafaglione testified that he was aware of this requirement r List I men who were also accepted by Fink on October 17 were Gerald Strohmeyer, R Francigues , and J D McLellan Gene Hart was accepted and referred on October 20 by Soule acting for Fink PLUMBERS & STEAMFITTERS LOCAL UNION 60 rals. Disposition of the case, therefore, requires a construction of the hiring practices and a finding as to whether or not they were violated and, if so, for discriminatory reasons. This is not a decision which will be helped by ex- haustive research and none has been attempted by either counsel. The general principles of law ap- plicable to exclusive hiring halls have been set forth ad nauseam and nothing could be clearer than that any taint of discrimination in the referral practice serves to make the practice or specific discrimina- tory act thereunder in full. I find only two sentences in the referral rules to serve as guidance. Those sentences paragraph 1(c), Referral of Men, reads: All journeymen's name on List I must be called out and be given preference or an opportunity to accept referral before List II or List III is called out., If any contractor's called-out request is not filled by 9 a.m., then the Dispatcher (Agent) shall be authorized to fill the contractor's request after 9 a.m. to the best of his ability with qualified registrants for work. The facts not being in dispute, the sole question is whether the business agent was required to call the No. II list on Friday as soon as the No. I list was exhausted, although the call was not required to be filled until Monday. (Since the hurricane threat suspended all normal procedures on Monday, Tuesday became the final day for referral.) The record is barren of past practice covering this situa- tion so the decision must, of necessity, be an ar- bitrary one. It is my conclusion, made admittedly with almost no evidence, that Fink was not required to call the No. II list on Friday. Since the referrals were not required to be made until Monday I think a reasonable construction would permit the holding of the No. II list until the No. I list had been called on that day. Quite obviously this gave preference to the book men but the hiring rules gave preference to book men, ostensible on seniority grounds, and have not been attacked. It is unfortunate that a trial examiner and ultimately the Board should be placed in the role of unofficial arbiter of the hiring procedures at a union hall but the Act leaves no choice. If exclusive hiring halls are to be permitted, the opportunities for discrimination are so abun- dant that close scrutinty is an absolute necessity, particularly where the hall may be the chief if not the sole source of employment in a trade. I do not feel, however, that in the instant case Fink gave more than a reasonable construction to his authori- ty under the rules . It should be noted that the record contains no evidence of personal discrimina- tion against the Beals. 739 Agreeing that the case is arguable and might reasonably be decided either way I shall recom- mend that paragraph 9 of the complaint be dismissed. Paragraph 10 refers to a refusal to refer the Beals to employment at Mechanical on November 6, thereby causing Mechanical to refuse to employ them in violation of Section 8(a)(3) of the Act. On November 6, the Beals brothers presented themselves to the hall where they signed list II. They then left for coffee; when they returned to the hall they learned that list II had been called and that the Beals, since they had not responded, had been passed. The hiring rules provided that the men be present at the hall between 8 and 9 a.m. when the calls for work were made. It would appear that this would end the matter, but not so. General Counsel introduced testimony going back to Au- gust 11 when an employee named McElroy was called and Fink was advised he was out in the street. Fink sent for McElroy and he was referred. There is no testimony that Fink was likewise ad- vised that the Beals were outside on November 6 but were not sent for. It is on this slender evidence, if it is evidence of anything at all, that the General Counsel seeks to establish disparate treatment based on a discriminatory motive. On November 6 Respondent was entitled to proceed with its call and its failure to send for the Beals brothers does not constitute a violation of Section 8(b)(1)(A) and (2) of the Act. IV. THE REMEDY Having found Respondent engaged in a certain unfair labor practice it shall be recommended that it cease and desist from the same and take certain affirmative action necessary to effectuate the poli- cies of the Act. Having found Respondent caused Specialty to lay off Billy McLennan because he was not a member of the Respondent, I shall recommend that Respon- dent make Billy McLennan whole for any loss of pay he may have suffered by reason of said dis- crimination. Since I have already found Respon- dent did not refuse thereafter to refer McLennan for employment it shall be recommended that Respondent's liability for backpay shall cease as of the time work for McLennan became available for McLennan and after Respondent ceased its dis- crimination. This date shall be fixed as the date Respondent first referred journeyman to Specialty pursuant to its contract with Specialty and pursuant to its hiring procedures. Since McElroy and Nebels were referred to Specialty on August 1 1 I find this to be the date on which liability should cease. 427-835 0 - 74 - 48 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings and con- 8(b)(2) and (1)(A) of the Act. clusions I make the following: 2. The aforesaid labor practice is an unfair labor practice within the meaning of Section 2(6) and CONCLUSIONS OF LAW (7) of the Act. 1. By causing Specialty to lay off Billy McLen- nan on August 4, 1969, in violation of Section [Recommended Order omitted from publica- 8(a)(3) of the Act, Respondent violated Section tion.]