Iron Workers Local, 577

IRON WORKERS, LOCAL 577 International Association of Bridge , Structural and Or- namental Iron Workers, AFL-CIO, Local Union No. 577 (Various Employers in Hannibal, Missouri, Area) and Larry R. Hudnall, International Associa- tion of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, Local Union No. 577 (Tri- State Steel Erectors, Inc.) and Darrell W. Williams. Cases 14-CB-2183 and 14-CB-2267 September 14, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On October 18, 1971, Trial Examiner Joseph I. Nachman issued the attached Decision in this pro- ceeding. Thereafter, the Respondent and the General Counsel filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions, as modified below, and to adopt his recommended Or- der.' We agree with the Trial Examiner that Respondent's refusal to offer Williams, a union mem- ber, job referrals in the Quincy area was in retaliation for his having filed a charge with the Board against the Union, and that in so doing Respondent violated Section 8(b)(1)(A). However, unlike the Trial Exam- iner, we ground the 8(b)(1)(A) violation not on the breach, "for irrelevant and invidious reasons," of Respondent's obligation to accord Williams equal rights with other union members in the matter of job referrals, but instead on this unlawful attempt to disci- pline a member for exercising his right to invoke the processes of the Board .2 In adopting the Trial Examiner's dismissal of the 8(b)(1)(A) charge filed by Larry R. Hudnall, we do so for the reason that, on the basis of the entire record, the evidence, in our opinion, fails to establish that Respondent did, in fact, discriminate against Hudnall in the matter of job referrals, in violation of Section 8(b)(1)(A). In support of,our conclusion, we note the Respondent's referral of Hudnall to two jobs between mid-October 1970, when he first applied to the Re- spondent for referrals, and November 25, 1970; Hudnall's support of the Respondent's claim that its failure to refer him during the winter of 1970-71 was 37 due to lack of available work; Hudnall's failure to reply to Area Steward Crist's call to his home on January 27, 1971, 2 days after Hudnall's filing of the charge in Case 14-CB-2183, on the excuse that he believed the call merely related to the charge; his unexplained failure to either seek employment on his own between November 25, 1970, and April 28, 1971, or to apply to the Respondent for referrals from Janu- ary 25, 1971, to April 28, 1971; the Respondent's re- ferral of Hudnall to two jobs in May and June 1971 shortly after Hudnall notified Crist that he (Hudnall) needed a job; and Respondent's referral of Hudnall, in June 1971, to a third job which, it advised him, might last all summer, but which Hudnall failed to follow up, without notification either to the pros- pective employer or to the Respondent. In our view, the above facts show that Hudnall's difficulty in securing job referrals was due in large part both to the scarcity of available jobs and to Hudnall's own laxity, either in securing jobs on his own initiative or in following up the Respondent's referrals, for which the Respondent cannot be blamed. We therefore conclude that the General Counsel has failed to sustain the burden of proving that the Respondent did in fact discriminate against Hudnall in the matter of job referrals, in violation of Section 8(b)(1)(A). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, Local Union No. 577, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's rec- ommended Order. 1 We deny, as without merit, the Respondent's motion to dismiss the instant proceeding with regard to all of the Employers other than Tri-State, as to which the Respondent concedes jurisdiction. Where, as here, the sub- stantive allegations of the complaint charge interference with the statutory right of an individual to resort to the Board's processes, public policy requires that the Board exercise its jurisdiction to the fullest extent Philadelphia Moving Picture Machine Operators ' Union, Local No 307, I A.T S E, 159 NLRB 1614, fn 3, and cases therein cited As the record establishes the existence of statutory jurisdiction, we shall assert jurisdiction on this basis, regardless of whether any of our discretionary standards for asserting juris- diction as to these other employers have been met. See Wood, Wire and Metal Lathers' International Union, Local No 238, AFL-CIO 156 NLRB 997 2 Local 138, International Union of Operating Engineers, AFL-CIO (Charles S Skura), 148 NLRB 679. Member Jenkins, although subscribing to the rationale herein, further relies on the Trial Examiner's rationale, supported by Miranda Fuel Company, Inc, 140 NLRB 181, Chauffeurs Union Local 923 (Yellow Cab Company), 172 NLRB No 248, and Hoisting and Portable Engineers, Local No 4 (The Carlson Corporation), 189 NLRB No 52. 199 NLRB No. 8 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOSEPH I. NACHMAN, Trial Examiner: This proceeding, tried before me at Hannibal, Missouri, on June 22-24 and July 21 and 22, with all parties present and duly represented by counsel or in person, involves separate complaints,' pur- suant to Section 10(b) of the National Labor Relations Act (herein the Act), consolidated for purposes of trial and deci- sion, allege in substance that International Association of Bridge, Structural and Ornamental Iron Workers, AFL- CIO, Local Union No. 577 (herein Respondent or Union), pursuant to understandings or agreements with various em- ployers, operated an exclusive hiring arrangement, and in the course thereof discriminated against the Charging Par- ties in referrals for employment in violation of Section 8(b)(2) and (1)(A) of the Act. In the case of Hudnall, the complaint alleged basically that such discrimination was exercised because he lacked membership in the Union, while in the case of Williams it is alleged to be because he filed charges against the Union, or because of a personal feud between he and one or more officials of Respondent, or both. For reasons hereafter more fully stated, I find and conclude that the General Counsel has failed to prove by a preponderance of the evidence that there existed in this case any "agreement" or "understanding" between the Union and any employer that referral by or clearance from the Union was a condition of employment, and hence there was no violation of Section 8(b)(2) and (1)(A) of the Act as to either Hudnall or Williams. However, I do find and con- clude that, after Williams acquired membership in the Un- ion, the latter breached its duty of fairly and impartially representing him, and thereby violated Section 8(b)(1)(A) of the Act. At the trial all parties were permitted to introduce rele- vant evidence, to examine and cross-examine witnesses, to argue orally on the record, and to submit briefs. Oral argu- ment was waived. Briefs submitted by the General Counsel and Respondent, respectively, have been duly considered. Upon the pleadings, stipulations of counsel, the evidence, including my observation of the demeanor of the witnesses while testifying, and the entire record in the case, I make the following: FINDINGS OF FACT 2 THE UNFAIR LABOR PRACTICES ALLEGED A. Background The Union maintains its headquarters at Burlington, Iowa, where all of its principal officers, including its full- time business agent, reside. Because the Union's territorial i In 14-CB-2183, the complaint issued April 23, on a charge filed January 25 In 14-CB-2267, the complaint issued July 13, on a charge filed June 28 All dates mentioned herein are 1971, unless otherwise indicated jurisdiction is extensive, it has so-called area stewards at certain locations, including Hannibal, Missouri, and Quin- cy, Illinois, the two locations involved in this proceeding. At both of these locations, as well as in its Burlington office, the Union operates separate hiring halls from which it dis- patches men to various jobs when employers so request. The hiring hall at Burlington is run by Union Business Manager Crist; the one at Hannibal by Area Steward Patrick; and the one Quincy by Area Steward Jesberg. While all operations of the Union are under the general supervision of Cnst, the area stewards are virtually independent in their respective areas. Respondent conceded that the men dispatched from the respective hiring halls fall in three classes, namely (1) members of Local 577; (2) so-called travelers, or dobie men, that is men who are members of another Local of the same International; and (3) men who are not members of any labor organization. Respondent further concedes that in dispatching men members of Local 577 have an absolute preference ahead of any man in either of the other classes and no one in classes (2) or (3) will be dispatched if a member of the Local is out of work. However, for the pur- poses of hiring hall classes (2) and (3) are treated as one, and nonmembers of the local are at times dispatched ahead of dobie men. For some years, and certainly as far back as 1946, the local has been under contract with Burlington Builders As- sociation (herein Association) fixing the wages, hours, and terms and conditions of employment of members of the local. The latest such contract, which binds all members of Association, was entered into as of May 5, 1969, to be effective until April 30, 1972, and thereafter from year-to- year unless terminated by a specified notice. The contract does not contain a union-security clause, nor does it contain any provision relating to the operation of a hiring hall.3 Although all members of Association are bound by the contract, there are a substantial number of employers in the jurisdiction of the Union who are not members of Associa- tion and who have not signed or otherwise agreed to be 2 No issue of commerce or labor organization is presented In Case 14- CB-2267, the complaint alleges and the answer admits facts which establish that Tri-State Steel Erectors is engaged in commerce, and I find those facts to be as pleaded No commerce facts with respect to any other employer in the Quincy area is shown As Tri-State is probably the largest employer of ironworkers in Quincy, and the violation found herein is Respondent's dis- criminatory refusal to refer Williams to any employer in the Quincy area, I find it reasonable to assume that, had Respondent referred in a nondiscrimi- natory manner, Williams would have been referred to Tri-State at some time, hence its commerce is a sufficient predicate for the assertion of jurisdiction in this case. See International Alliance of Theatrical Stage Employees, etc (Columbia Broadcasting System, Inc.), 199 NLRB 810, That Respondent is a labor organization is conceded 3 Henry E. Fitzsche, chairman of Association's labor negotiating commit- tee, testified that in negotiations over the years the Union has made requests for a contractual hiring hall, but that this was always refused by management because they did not wish to take responsibility for policing the Union's conduct in that regard IRON WORKERS, LOCAL 577 39 bound by the contract referred to, but do follow its terms when they employ ironworkers. Of the employers of ironworkers operating in the Hannibal and Quincy areas who testified in this proceeding, none is a member of Asso- ciation, none has signed a contract with the Union, but all followed the contract the Union negotiated with Associa- tion. B. The Hiring Practices Those employers of ironworkers from the Hannibal and Quincy areas who testified, all denied that they had any understanding or agreement with the Union that the latter would be the exclusive source of supply of men, or that they would hire only such persons as had been referred or cleared by the Union. Indeed some testified that on occasions they hired directly by recalling men whom they had theretofore laid off for lack of work, or sought an individual whom they learned was a particularly good employee, or who possessed a particular skill they were then seeking, and that such solicitation was without notice to or consultation with the Union. All employers admitted, however, that because the Union was virtually the sole source of supply of qualified men, that to obtain a sufficient number of men they would call the area steward for the locale in which the work was to be performed and request the latter to refer the number of men needed. The area steward, if he had the requested number of men available, would refer them to the job; if he did not have the requisite number of men available, he would communicate with another area steward, or with the business agent in Burlington, Iowa, and have them refer the men, if available. When the men reported to ajob pursuant to such referral they presented no documents to the employ- er, and the latter had no information as to the union status of any employee, or the lack thereof. C. The Facts 1. Case 14-CB-2183 (Hudnall) Hudnall began working as an ironworker in July 1968. Although he was not then a member of any labor organiza- tion, Hudnall was referred to jobs by one Buffington, who was then Respondent's area steward for the Hannibal area. After working in Hannibal for about a year, Hudnall went to Columbia, Missouri, which is outside Respondent's juris- diction, but the circumstances of this were not developed in the record. In August 1970, Hudnall left Columbia and went to Lubbock, Texas, where he apparently worked as an ironworker. While in Lubbock, Hudnall was on October 7, 1970, inducted into membership in Ironworkers Local 789, and upon receiving a membership book returned to Hanni- bal. On October 18, 1970, Hudnall met with Hannibal Area Steward Patrick who volunteered that he might have work for Hudnall in a few days, to which the latter replied that this is what he wanted, and added "I've got a ticket now," meaning a union book. Patrick made no reply to this, and Hudnall was unable to state with certainty that Patrick in fact heard what he said, although he testified that Patrick was no more than 8 feet from him and that he spoke in a normal tone of voice. The following day Patrick, pursuant to a request for men made to him by Quincy Area Steward Jesberg, referred Hudnall to Tri-State Steel, an employer in Quincy. Hudnall accepted the referral and worked on that job for about 3 weeks. While working for Tri-State, Hudnall received a tele- phone call from Patrick wanting to know why Hudnall had not told him that he had a union book. Hudnall claimed that he had so informed Patrick, but the latter insisted that he had not, and stated that under the circumstances Hudnall was not cleared into Respondent Local, and that Hudnall would have to call Union Business Agent Crist for that purpose, and also threatened to prefer charges against him for violation of some internal rule of the Union. Hudnall then telephoned Crist and told the latter of his conversation with Patrick, that he now had a union book, and pursuant to Patrick's instructions was calling to clear into Respon- dent Local. Crist assured Hudnall that he was now cleared into the Local. Several days later Crist came to Tri-State job in Quincy, called Hudnall from his work, and told the latter that he did not like the fact that Hudnall had attempted to conceal from Patrick the fact that he had a book from Local 789, and asked why Hudnall had not sought a book from Respondent Local. Hudnall replied that he thought he had done so, but Crist insisted that he had not; that to apply for membership in Respondent Local Hudnall had to complete a form, pay a fee of $50, and wait for the Union's Board to call him for examination, and that Hudnall had not done so. Crist then told Hudnall that he just as well go back to Texas because there would be very little work for him "around here." Hudnall's job at Tri-State came to an end about No- vember 15, 1970, and he promptly telephoned Patrick to report that fact. Several days later Patrick referred Hudnall to a job at Electric Wheel in Quincy, which lasted 2 or 3 days. When that job ended, Hudnall again reported to Pat- rick that he was out of work, but the latter said he had nothing at the time, and would call Hudnall when he did. From that time on Hudnall telephoned Patrick at least once each week asking for work but was told that none was available. In the course of one such call about mid-January, Hudnall asked Patrick if he (Hudnall) was on the Union's referral list. Patrick replied affirmatively, but added that there was no work and there had been little all winter. Hudnall testified that he knew Patrick's statement was fac- tually correct 4 On January 25, Hudnall filed his charge which initiated Case 14-CB-2183. On January 27, Crist telephoned Hudnall's home, but not finding him in spoke with his wife. Mrs. Hudnall testified that when she answered the tele- phone and the caller asked for her husband, she responded that he was not at home and asked who was calling and if there was any message; that the caller replied it was Crist, that there was no message, and that he would call Hudnall later. Mrs. Hudnall testified emphatically that Crist did not say that the call was in regard to work, and did not ask that Hudnall return the call.5 In any event, Mrs. Hudnall in- The facts to this point are based on the credited and virtually uncontrad- icted testimony of Hudnall Patrick admitted that Hudnall spoke to him about mid-October 1970, and that he shortly thereafter referred him to Tri-State, but claimed that Hudnall did not tell him he had a union book, as the latter testified I find it unnecessary to resolve that conflict. The remainder of Hudnall's testimony to this point, Patrick did not deny 5 Crist admits that he made such a call, that it was made on January 27, 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD formed her husband, later that day, that Crist had called but left no message other than that he would be in touch with Hudnall later. Hudnall conceded that he did not call Crist, and gave as his reason therefor that he knew Crist had received a copy of the charge and assumed that the filing of the charge is what Crist wanted to discuss. The evidence is clear that from the end of his employ- ment at Electric Wheel on or about November 25, 1970, until sometime in May, Hudnall received no job referrals from the Union. Although as above indicated, Hudnall called Patrick about work virtually each week from the termination of the Electric Wheel job until he filed the charge on January 25, he admits that after the charge was filed, he had no communication with either Patrick or Crist until on or about April 28, nor did he make any effort to secure employment on his own as an ironworker. In the mean time Hudnall received a letter from the Union's coun- sel, dated April 16, advising him that the Union had no objection to his soliciting employment directly from any employer, and that he was free to do so at any time. The letter additionally stated that Hudnall was free to show the letter to any employer to whom he might apply for work, and if such employer had any doubt about the authenticity of the letter such employer should contact the Union for direct confirmation. After receiving said letter Hudnall still made no effort to secure employment on his own, nor did he make any effort to communicate with the Union until he called Crist on April 28. Why Hudnall made no effort to find work on his own since November 1970, the record does not indicate. According to Hudnall, in the April 28 telephone con- versation, he told Crist that he had not worked since No- vember, and needed it badly, and that Crist stated that he expected a job to develop in the not too distant future at Continental Ship Form in Quincy, and would keep him in mind for it. Because of a telegram he received from Crist, Hudnall telephoned Crist on May 16, and Crist at that time referred Hudnall to the Continental Ship Form job, where he worked 5 days in shifts of 12 hours each, and was then terminated for lack of work. Hudnall then reported to Crist that he was out of work, and on June 4 was again referred by Crist to Continental Ship Form, where he again worked for 5 days. About June 14, Crist telephoned Hudnall and asked the latter if he was interested in work at Kirksville,6 stating that the job would last "all summer." Hudnall ac- cepted the referral, stating that he would be on the job the following morning. Hudnall admits that he never reported to that job. He testified that he started for the job but had trouble with his car and was unable to complete the trip; that he called Crist's office to report what had happened but that Crist was not in; that Crist's telephone was answered by some man who promised to give Crist the message. Hud- nall admitted that he did not telephone the Company to which he was to report, claiming that he did not know the between 9 and 10 a.m., that he spoke with Mrs. Hudnall who informed him that her husband was not at home . According to Crist, after identifying himself, he asked Mrs Hudnall to have her husband to call him, that he wanted to speak with him about work I deem it unnecessary to resolve the conflict. 6 Kirksville is also within Respondent's jurisdiction about 100 miles north- west of Hannibal. Hudnall lived close to Hannibal. telephone number and that he did not thereafter go to that job. He also admitted that he was later informed by his family that Crist had called him, that he did not return the call but gave no reason for failing to do so. Since June 14, Hudnall had no conversation with either Crist or Patrick, nor has he received any referrals from the Union.' On June 29, Hudnall applied to the general superin- tendent of Tri-State Steel for employment, exhibiting at the time the letter he received from Respondent's counsel, dat- ed April 16. Hudnall was hired and reported to work on or about July 1, and was so employed when the hearing closed, as a part of a virtually permanent crew. 2. Case 14-CB-2267 (Williams) Williams, who resides at Quincy, Illinois, had worked as an ironworker for a number of years prior to June 1969, obtaining virtually all his referrals from Jesberg, the area steward at Quincy. During this period Williams was not a member of any union. On June 2, 1969, Williams filed a charge against Respondent alleging that it caused Tri-State Steel to discriminate against him by refusing to refer him because of unfair, irrelevant, and invidious consideration, thereby violating Section 8(b)(1)(A) and (2) of the Act. Pur- suant to some agreement he reached with Respondent, Wil- liams on July 10, 1969, was inducted into full membership in Local 577, and on July 15, 1969, withdrew his previously filed charge. When Williams became a member of Respon- dent, he had worked for a substantial period in Kirksville (Missouri is about 100 miles from Quincy), and wanted to get closer to his home. Accordingly, he telephoned Jesberg and asked about possible work in the Quincy area. Jesberg replied that he would not refer Williams to any job while he was area steward; that Williams was to get his referrals through the Burlington Hall,8 and perhaps he could get a job with the Labor Board. The job on which Williams was working at Kirksville, came to an end sometime in August 1969. From that time to about mid-September, when Wil- liams obtained a job in Columbia, Missouri, which, as indi- cated is in the jurisdiction of Local 396, he telephoned Jesberg a number of times asking about work, and on each occasion was told, in substance, that Jesberg would not refer him. On one of these occasions Williams asked Jesberg the reason for his position, and the latter replied, "some people don't forget." During this period Williams also telephoned Crist and told the latter what Jesberg had stated, and asked Crist to refer him, but the latter said he had no work avail- able. Williams' job in Columbia terminated in October 1969. From that time until March 1970, Crist referred him to jobs in McComb and Carthage, Illinois, and Keokuk, Iowa. However, in April 1970 Williams obtained a job at Cedar Rapids, Iowa, within the jurisdiction of Local 89, where he worked until the job came to an end in September 1970. While working in Cedar Rapids, Williams telephoned Crist 7 Based on the testimony of Hudnall Patrick gave no testimony contrary to that of Hudnall in this regard Crist admits that he took over the referral of Hudnall in January, and that he referred Hudnall to the Continental Ship Form and Kirksville Jobs He admits also that he knew of the charge filed by Hudnall on January 25, receiving a copy thereof from the Region. s The Rand-McNally Standard Highway Mileage Guide shows Quincy, Illinois, to be 82 miles from Burlington, Iowa. IRON WORKERS, LOCAL 577 and Jesberg asking for work in the Quincy area. Crist claimed that he had no work available, and Jesberg again stated that there would be no work available for Williams in the Quincy area so long as he (Jesberg) was area steward. Shortly after his job at Cedar Rapids ended, Williams applied to Tri-State Steel for work, speaking with the latter's foreman Spangler, who is also a member of Respondent. During the interview Williams apparently made some state- ment to the effect that Jesberg would not refer him out. At Spangler's suggestion Williams went to Spangler's home that evening, where the latter, with Williams listening on an extension, made a series of telephone calls to officials of Respondent. The first call was to Jesberg, with Spangler asking the latter why Williams could not go to work in the Quincy area. Jesberg replied that he did not refer Williams out. Spangler argued that he needed Williams, but Jesberg insisted that Williams got his referrals only out of the hall in Burlington. Spangler then called Union President Tre- herne in Burlington and asked the latter why the trouble between Jesberg and Williams had to continue, and why the latter could not be referred out of the Quincy hall. Treherne replied that he was not concerned with that end of the local. Spangler then called Crist and asked the latter why he could not get the trouble between Jesberg and Williams taken care of. Crist replied that he was not aware that there was trou- ble. Spangler then asked Crist if he (Spangler) could put Williams to work, and Crist told Spangler to wait unti he (Crist) got down to Quincy and talked to Spangler. The record is clear that Williams did not go to work for Tri-State on this occasion, but the reason for it is not developed in this record.' In the latter part of September 1970, Williams went to Florida, returning to Quincy on or about April 4, l971, and while there worked in the jurisdiction of Local 272, located in Miami. About 2 weeks before leaving Florida, Williams telephoned Crist and told the latter of his intention to return to the Quincy area, and asked if there was any work avail- able. Crist told Williams to let him know when he (Wil- hams) got back to the Quincy area. Promptly upon reaching Quincy, Williams placed calls to, in the order stated, Jes- berg, Patrick, and Crist. He told Jesberg that he was back from Florida and wanted to register for work. Jesberg stated that he would not refer Williams; that the latter was to obtain his referrals out of the hall in Burlington. Williams protested that Jesberg had carried on his feud long enough, and that he (Williams) was being hurt by it, but Jesberg remained adamant that he would not refer Williams. In his call to Patrick, Williams stated that he was seeking work and knew that the American Cyanamide job in Hannibal was about to start up, but Patrick also stated that he had no work for Williams; that the latter was to get his work out of the hall in Burlington. In the call to Crist, Williams in- formed him of the conversations with Jesberg and Patrick, and stated that Jesberg had been "pouting" long enough, and that he (Crist) had the obligation to get matters straight- ened out. Crist professed not to know what was going on. Thereupon Williams stated that it was up to Crist to get acquainted with the problem and resolve it, because he 9 Additionally it may be noted that the aforementioned events occurred more than 6 months prior to the filing of either of the charges herein. 41 (William) was getting ready to go to the Labor Board about it. To this Crist replied that he was coming down to Quincy and "punch [Williams] in the nose." Williams' only reply was that Cnst knew where Williams lived, and that he could come whenever he liked. Unable to find work as an ironworker, Williams took a job with Burlington Railroad as a budge builder helper. However, because he preferred to work as an ironworker, Williams again called Crist and advised him of that fact. Cnst stated that there was no work. Williams told Cnst that he knew there was work at the soybean plant. Cnst replied that he could not refer him to thatiob. Williams then stated again, as he had in the prior discussion with Crist, that if he could not be treated as other members of the local were, that he (Williams) was going to the National Labor Relations Board. Cnst again responded that he was going to punch Williams in the nose. Several days later Williams received Union Attorney Souders' letter of May 14, 1971. This letter stated, in substance, that Souders had been told by Crist that Williams was threatening to file charges against Re- spondent with the Board, and that he wanted to advise Williams (1) that Respondent had no contract, agreement, or understanding with any employer that employees must be referred only by Respondent, and that all employers were free to hire directly if they so chose; (2) that Williams was free to apply to any employer he wished, and if that employer chose to hire him, he was free to do so; (3) that some employers do call upon Respondent to refer men, and that pursuant to such request Respondent does so, but as- sumed no obligation in that regard other than to give its members equal treatment; and (4) that based on the fore- going Williams could file charges or not, as he saw fit, but that Respondent would in neither event change its practices. A few days later, Crist telephoned Williams and re- ferred him to the soybean plant, where Williams worked for 1 week for Continental Ship Form on the 7 p.m. to 7 a.m. shift, taking a leave of absence from the Railroad for that purpose. From the end of that job to July 1, Williams heard nothing from Crist. In the meantime, on or about June 25, Williams took Souders' May 14 letter to Tri-State Steel and was hired to report for duty on July 12, in order that he might give the Railroad appropriate notice. When the hear- ing closed on July 21, he was still working at Tri-State. On July 1, Crist again called Williams and wanted to refer him to a job at Tn-State. Williams replied that he had been hired by that employer on June 25. Crist then asked why Williams had filed the current charge on June 28, if he had obtained work on June 25. Williams replied that the problem had gone on long enough and that it was time to settle it. Crist then asked for an opportunity to discuss the matter further, and the parties met for that purpose, apparently the follow- ing day. Crist asked what Williams wanted from the local. Williams replied that all he wanted was to have the local run right, that Jesberg had not been doing so, and that he thought Jesberg should be replaced.1° 10 The findings in this section are based on the credited testimony of Williams Jesberg admitted that he makes virtually all referrals for work in the Quincy area, and that Continental Ship Form and Electric Wheel Com- pany are the only two employers in the Quincy area to whom Crist made referrals Although Jesberg denied that the National Labor Relations Board was discussed in any conversation he had with Williams, and denied that he Continued 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Contentions and Conclusions with court approval, also consistently held that absent such agreement or understanding: Neither employer nor union can be held accountable for the unilateral actions of the other. Neither is bound to police the other nor can it be inferred that an unfair labor practice indulged in by one is caused by the undisclosed activity of the other or through the tacit understanding of both. Evidence of such activity or understanding is necessary. 12 Thus the basic issue on this branch of the case is whether the General Counsel has established by a preponderance of the evidence that Respondent and the employers involved had entered into an "understanding or arrangement" for an exclusive referral system, pursuant to which said employers would hire only such persons as had been referred to them by, or had clearance from, Respondent. Upon considera- tion of the entire record, I must and do find and conclude that the General Counsel has failed to meet that burden of proof, and hence all 8(b)(2) allegations of the complaints must be dismissed. The most that the General Counsel has shown to sup- port his contention is that the employers normally call the Union when they need ironworkers, but there is no testimo- ny which shows, or from which it may be inferred, that the employers do this in recognition of some obligation to fol- low that course. On the contrary, the uncontradicted testi- mony of all employers who testified on the subject is not only that there exists no understanding or agreement that they will hire only those referred by the Union, but that their normal practice of calling the Union for men is dictated by the fact that they have learned from experience that the Union is the sole source of men who have the requisite skills and qualifications. Additionally, the record shows that when an employer finishes a job the men are laid off, but when another job commences he attempts to hire those of the previously laid-off employees whom he regards as par- ticularly competent, and does this by calling the men direct- ly, and only if he is unsuccessful in filling his needs in that manner does he call the Union at all. There is also evidence that at least one employer hired an ironworker who ap- peared at the gate seeking work, albeit that such an event happened infrequently. Finally, there is a complete lack of evidence than any employer ever asked an employee for proof of the fact that he had in fact been referred by Re- spondent, or refused to hire or discharge anyone until proof of union referral was furnished, or that the Union ever asked any employer to discharge an employee because he had in fact not been referred by Respondent. The mere fact that the employers unilaterally chose to ask the Union to refer men does not establish a mutual agreement or under- standing that the employers here involved would use the Union as their exclusive source of supply for ironworkers. See Food Fair, Inc., cited supra.13 11 Bricklayers, Masons etc., Local Union No 18 (Furgeson Tile and Marble Co ), N 141 NLRB 160 1 L R B v Brotherhood of Painters, etc [Spoon Tile Co J, 242 F 2d 477, 480 (C A. 10), quoted with approval by the Board in Local 626, United Brotherhood of Carpenters (Food Fair Stores, Inc ), 142 NLRB 1238, 1240 See also Tonn and Blank, Inc, 182 NLRB No. 39 13 In reaching the conclusion that the General Counsel has failed to estab- lish the existence of an exclusive referral system I have not overlooked the affidavits of Cnst, Jesberg, and Patrick, taken in the course of an investiga- tion of a prior case, to the effect that the employers were required to hire only 1. The 8(b)(2) allegations Conceding that there is no written contract between Respondent and any employers involved which established an exclusive referral system, the General Counsel contends nonetheless, as I understand his argument, that because the employers involved generally followed the practice of call- ing Respondent when they needed ironworkers, regarding Respondent as virtually the sole source of supply for compe- tent men, that this was in effect an "agreement or under- standing" between the parties that the employers would employ only those ironworkers that were referred by Re- spondent. From this premise the General Counsel argues that as Respondent admits it discriminated against the per- mit men by giving preference in referral to those who were members of the local, it caused the employers to discrim- inate against those members of Respondent it did not refer, in violation of Section 8(a)(3) of the Act, and thereby viola- ted Section 8(b)(2). I am unable to agree with the General Counsel's contentions. Although the Board has consistently held that even though the written agreement between the parties contains no exclusive referral provisions, an unlawful "under- standing" may be found if, in the particular case, "the rec- ord reveals the existence of an oral agreement or arrangement which requires membership in, or clearance from [the Union] as a condition of employment."" it has, ever told the latter to go back to Florida for work, and that he did not "believe" he said, anything to Williams to the effect that he had a good memory, or that he did not forget, he admitted that Williams had talked to him in the relevant period about work , that he did not send Williams to any job, but always referred him to Crist. Jesberg claims that he took this action because in late 1969 or early 1970 Williams, and one Kaufman who was taken into membership at the same time as Williams, had written to the Interna- tional Union complaining that they were not getting their fair share of the work in the Quincy area, that the International sent the latter to the local for disposition of the complaint, that at a meeting of the local which Kauf- man attended, and Williams though in the building did not attend, he (Jes- berg) made the suggestion that if Kaufman and Williams were dissatisfied with the manner in which referrals were being made in Quincy they could get their referrals out of Burlington , where they would be made by Crist, that Kaufman agreed to this, and a resolution to that effect was adopted by the body, and since that time he has not assigned Williams to a job, but always referred him to Crist Crist admitted that normally the area stewards make all referrals on their own , and that he seldom refers in their respective areas, that after Williams and Kaufman were admitted to membership in July 1969 he told Jesberg that he would take over the task of referring them, and did so, that in one conversation after Williams returned from Florida , the latter did complain about the lack of referrals and threatened to go back to the Labor Board, and that he asked Williams to wait until he could go over his lists, and on the following day referred Williams to the Continental Ship Form Job Crist also admitted that "it is possible" he told Williams that he "would punch him in the nose," but claims that this was occasioned by the fact that he got "a little steamed up" when Williams threatened to "whip" Jesberg, an alleged threat which Williams denied making Crist also claimed that he was unable to refer Williams because the latter would not notify him when he was out of work, and that on a number of occasions he telephoned Williams about Jobs which the latter refused, mentioning specifically jobs in Monmouth and Gladstone , Illinois. It may be noted that these towns are, according to the map, about 100 miles from Quincy where Williams lived, and much closer to Burlington from which point referrals to these Jobs would normally be made It may also be noted that neither Crist nor Jesberg denied the telephone conversation with Spangler which Williams testified he over- heard on the extension telephone To the extent that the testimony of Crist and Jesberg conflicts with that of Williams , I credit the latter IRON WORKERS , LOCAL 577 43 There being no exclusive referral system established, it follows that any discrimination the Union may have prac- ticed against Hudnall or Williams did not violate Section 8(b)(2) of the Act, and all allegations of the complaints in that regard must be dismissed. N.L.R.B. v. Thomas Rigging Co., 211 F.2d 153, 157-158 (C.A. 9). I so find and con- clude.14 2. The 8(b)(1)(A) allegations Although the General Counsel has failed to prove that Respondent violated Section 8(b)(2) of the Act, and Section 8(b)(1)(A) to the extent that it may be derivative of Section 8(b)(2), I find and conclude that the evidence establishes a violation of Section 8(b)(1)(A), with respect to Williams. In Miranda Fuel Company, Inc., 140 NLRB 181, 185, the Board for the first time held that Section 7 of the Act confers upon employees: ... the right to be free from unfair or irrelevant or invidious treatment by their exclusive bargaining agent in matters affecting their employment. Accordingly, when the Board found in Miranda that the union there involved caused the reduction of an employee's seniority contrary to the terms of the collective-bargaining agreement, thereby depriving him of employment opportu- nities, it concluded that the union breached its duty of fair representation and violated Section 8(b)(1)(A) of the Act, those who were referred by or had clearance from the Union , they explained that the affidavits were given when they had been in office only a short period, and while they thought the statements to be true when the affidavits were given , they later learned that such was not the fact While the affidavits were admissible as declarations against interest , their binding effect need be only such as is consistent with the whole record Upon consideration of the entire record, I am convinced that Crist, Jesberg, and Patrick were mistaken in their claim that the Union had an arrangement with the employers for an exclusive referral system 14 The cases cited by the General Counsel in support of his argument that the evidence establishes the existence of an exclusive referral system, are plainly distinguishable In International Union of Operating Engineers, Local 624 (D S McClanahan), 141 NLRB 615, the Board found the existence of an exclusive referral system primarily because the employer required the men referred to him to "produce a referral slip from [the Union] as a condition of employment," id at 167. In Local 7, International Association of Bridge, etc Iron Workers (Waghorne -Brown Company), 144 NLRB 925, the Board's find- ing of an exclusive hiring system is based primarily on the testimony of the employer's representative that "it was definitely company policy to hire only men referred or cleared by the Union" ( 144 NLRB at 926) In Pipe Fitters Local Union No 392 (Arco Products, Inc), 130 NLRB 663 (reversed on other grounds 136 NLRB 492), the finding of an exclusive referral system was based primarily on the fact that the employer when hiring men direct sent them to the Union to have them establish their acceptability to the Union before permitting them to work, and that the Union with full knowledge of the facts acquiesced and accepted the fruits of that arrangement ( 136 NLRB at 664) In Loca1215 IBEW (Eastern New York Chapter of NECA), 136 NLRB 1618, the finding of an exclusive referral system is predicated on the fact that a prior contract between the parties provided for such a system, and though taken out of the subsequent contract, the parties acted and led employees to believe that the old contractual provision was still in effect The facts in the cases Just referred to are a far cry from those presented by the instant record The General Counsel's additional contention that Sec 8 (b)(2) and (1)(A) of the Act was violated by Respondent because of the fact that it referred its members to employment ahead of nonmembers and charged the nonmem- bers at least the same , or perhaps a higher, fee for the privilege of being discriminated against in referrals stands on no better footing that his major premise Assuming that the fees Respondent charged nonmembers were excessive , the exaction of such a fee only "becomes unlawful where the hiring hall is operated in a discriminatory and unlawful manner" ( Waghorne-Brown Company, supra, 928) because its conduct was based on considerations which were irrelevant, invidious, or unfair. Id. at 185.15 The facts in the instant case show that after Williams became a member of Respondent Local on July 10, 1969,16 Respondent, acting through Jesberg with the ap- proval of Crist, refused to refer Williams to any job in the Quincy area, the area in which Williams lived and in which he sought jobs for obvious reasons. Instead, the only refer- rals Williams received were made by Crist and were all to jobs in the Burlington, Iowa, area, approximately 100 miles or more from where Williams lived. Obviously, to work on these jobs Williams either had to travel long distances each day or obtain living accomodations in the area where the job was located. Although Williams was certainly not enti- tled to insist that he be referred only to Quincy jobs, he was at least entitled to his fair share of them; that he did not get such is clear from Jesberg's own testimony that he always told Williams that the latter had to get his referrals from the Union's hall in Burlington. In pursuing this policy Respon- dent clearly discriminated against Williams in the matter of employment opportunities. Respondent took this action, I find and conclude, to retaliate against Williams because he had filed the earlier charge against it, and because he had complained about Jesberg's disparate treatment in the mat- ter of job referrals. That Williams' conduct in trying to obtain nondiscriminatory referrals constituted activity pro- tected by Section 7 of the Act is made clear by the Board's decision in Hoisting & Portable Engineers, Local No. 4 (Carl- son Corporation), 189 NLRB No. 52. The only justification Respondent attempted to show for its discrimination against Williams was that the Union had decided that, because Williams had complained about Jesberg's manner of referring, the best way to handle the matter was to remove Jesberg from the area of referring Williams and to require the latter to obtain his referrals from Crist. I do not regard this as a showing of legal j ustifi- cation. In the first place, there is no showing that Williams agreed to the plan, or in any way surrendered his right to referrals from the Quincy "hall" on the same basis as other members of the local residing in the Quincy area. Secondly, had Respondent simply transferred the duty of making non- discriminatory referrals to Williams from Jesberg to Crist, with the result that Williams obtained his fair share of the Quincy work, no discrimination against Williams could be found, but what Respondent did was simply exclude Wil- liams-a member in good standing-from any employment in the Quincy area. It is true, of course, that Respondent is not required by law to operate a hiring hall, but, having undertaken the task of assisting its members in finding jobs, it has the obligation of treating all its members in a fair and even-handed manner, "without discrimination based on the exercise of Section 7 rights" (The Carlson Corporation, su- 15 Although the Board's 8(b)(1)(A) doctrine in Miranda was denied en- forcement by a divided Second Circuit (326 F 2d 172), the Court of Appeals for the Fifth Circuit approved the doctrine in Local 12, United Workers v N L R B, 386 F 2d 12, enfg. 150 NLRB 312, and in Vaca v. Sipes, 386 U S 171, the Supreme Court indicated its approval of the Board's Miranda doc- trine 16 Williams' charge in this case was filed on June 28, 1971 Any discrimina- tion against him that occurred more than 6 months prior to the filing of said charge is, of course, barred by Sec 10(b) of the Act, but the prior events may be relied on to throw light on the events that took place within the 10(b) period 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pray. By excluding Williams from employment in the Quin- cy area, because he exercised rights protected by Section 7 of the Act, Respondent breached that duty for irrelevant and invidious reasons and thereby violated Section 8(b)(1)(A) of the Act. Miranda Fuel Company, Inc., supra; Teamsters, etc. Local 923 (Yellow Cab Company), 172 NLRB No. 248; Hoisting & Portable Engineers, Local 4 (Carlson Corporation), supra. I so find and conclude. With respect to Hudnall, the General Counsel's case stands on a different footing. To begin with Hudnall was never a member of Respondent. It was only after October 7, 1970, that Hudnall was a member of an ironworkers local in Lubbock, Texas, and thereafter when working in the jurisdiction of Respondent did so as a "traveler." So long as the referral system was not an exclusive one, and I have found that it was not, Respondent could lawfully discrim- inate against Hudnall, and in favor of its members , or even refuse to make any referrals to Hudnall. In doing so Re- spondent would be guilty of no discrimination proscribed by the Act. Moreover, there is a complete absence of evi- dence that any discrimination Respondent may have prac- ticed against Hudnall was connected with concerted activity engaged in by the latter. He filed no charge against Respon- dent prior to his instant charge; nor did he, as did Williams, complain to the International concerning disparate referrals by any official of the Union. As Section 8(b)(1)(A), to the extent applicable here, proscribes only that discrimination which is "based on the exercise of Section 7 rights" (The Carlson Corporation, supra), the failure of the General Coun- sel to establish that Hudnall was engaged in some concerted activity and that Respondent discriminated against him be- cause of that activity requires that the 8(b)(1)(A) charge filed by Hudnall be dismissed for lack of proof. I so find and conclude. Upon the foregoing findings of fact and the entire rec- ord in the case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. Tri-State Steel Erectors is an employer within the meaning of Section 2(2) of the Act, and is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 3. By discriminating against Williams in the matter of referrals because the latter had engaged in concerted activi- ty protected by Section 7 of the Act, Respondent engaged in and is engaging in unfair labor practices proscribed by Section 8(b)(1)(A) 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. 5. Except to the extent above found, the General Coun- sel has failed to establish by a preponderance of the evi- dence that Respondent engaged in any unfair labor practice alleged in the complaints. THE REMEDY It having been found that Respondent engaged in unfair labor practices proscribed by Section 8(b)(1)(A) of the Act, it will be recommended that Respondent cease and desist from such conduct and take certain affirmative action designed and found necessary to effectuate the policies of the Act. It having also been found that the discrimination against Williams took the form of refusing to refer him to jobs in the Quincy area, it will be recommended that Re- spondent be required to make Williams whole for any loss of earnings he suffered by reason of the discrimination against him, by paying to him a sum of money equal to the wages he would have earned on and after April 4, absent such discrimination, less his net earnings elsewhere during said period.17 Such loss of earnings, with interest thereon at the rate of 6 percent per annum, shall be computed in the manner set forth in F.W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. As the evidence shows that Respondent does not main- tain a separate establishment in Quincy from which it there operated a hiring hall (Jesberg operating out of his home), the notice herein provided for cannot be posted at Quincy. Accordingly, it will be recommended that a copy of such notice be mailed to each member of the Union residing in the Quincy area. Upon the foregoing findings of fact, conclusions of law, and the entire record in the case, I hereby issue the following recommended: 18 ORDER Respondent, International Association of Bridge, Structural and Oranmental Iron Workers, AFL-CIO, Local Union No. 577, its officers, agents and representatives, shall: 1. Cease and desist from discriminating against Darrell W. Williams, or any other member of Respondent, in the matter of referrals to jobs in the Quincy, Illinois, area, be- cause Williams, or any other member of Respondent, has engaged in concerted activity protected by Section 7 of the National Labor Relations Board Act, including but not limited to the filing of charges with the National Labor Relations Board, or protesting to the International Union with which Respondent is affiliated, regarding Respondent's practices in referring its members to jobs. 2. Take the following affirmative action designed and found necessary to effectuate the policies of the Act: (a) Make whole Darrell W. Williams for any loss of earnings suffered by him since April 4, 1971, by reason of Respondent's discrimination against him as herein found, less his net earnings in that period, in the manner set forth in the section hereof entitled "The Remedy." 17 As pointed out in fn. 16, supra, backpay prior to December 28, 1970, is barred by Sec. 10(b) of the Act. As the evidence shows that Williams worked in Florida from October 1970 until he returned to the Quincy area on or about April 4, his backpay can run only from that period . As the amount of backpay can best be determined at the compliance stage of this case, no finding is now made as to the number of jobs Williams might have obtained from and after April 4, nor the duration of any such job. 's In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions , and Order, and all objections thereto shall be deemed waived for all purposes. IRON WORKERS, LOCAL 577 45 (b) Post at its business office and meeting hall at Bur- lington, Iowa, copies of the attached notice marked "Ap- pendix."19 Copies of said notice, on forms provided by the Regional Director for Region 14 (St. Louis, Missour), after being signed by an authorized representative, shall be post- ed 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 its members are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Mail to each of its members registered for employ- ment with its area steward at Quincy, Illinois, on or after April 1, 1971, at his last known address, a copy of the aforementioned notice. Copies of the notice to be mailed, on forms to be furnished by the aforesaid Regional Director, shall after being signed by an authorized representative, be delivered to said Regional Director and properly addressed with unsealed envelopes, with legal postage affixed, for mailing by said Regional Director, together with a separate list showing the name and last known address of each of its members registered for employment with its area steward at Quincy, Illinois, on or after April 1, 1971. (d) Notify the aforesaid Regional Director, in writing, within 20 days from the receipt of this Decision, what steps it has taken to comply herewith.20 IT IS FURTHER RECOMMENDED that the Board dismiss all allegations of the complaints not herein specifically found. 19 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 20 In the event that this recommended Order is adopted by the Board after exceptions have been filed , this provision shall be modified by deleting the words "this Decision," and substituting the words "this Order" present their evidence, the National Labor Relations Board has found that we, Iron Workers Local 577, violated'the National Labor Relations Act, and ordered us to post this notice. We will comply with the Board's Order, and any court decree enforcing said Order, and notify you that: WE WILL make up to Darrell W. Williams any pay he lost after April 4, 1971, by reason of the discrimina- tion against him, together with 6-percent interest. WE WILL NOT discriminate against Darrell W. Wil- liams, or any other member of this local, in the matter of referrals to jobs in the Quincy, Illinois, area, because Williams, or any other member of this local has en- gaged in activity protected by Section 7 of the National Labor Relations Act, including but not limited to the filing of charges with the National Labor Relations Board, or protesting to the International Union about the practices of this local concerning the manner in which job referrals are made. Dated , By APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a full trial in which both sides had the opportunity to INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, AFL-CIO, LOCAL UNION No 577 (Labor Organization) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board's Office, 210 North 12th Boulevard, Room 448, St. Louis, Missouri 63101 , Telephone 314-622-4174.