Boilermakers, Local No. 169

140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers Local Lodge No. 169, AFL-CIO (Riley Stoker Corporation) and Clayton M. Gerard. Case 7-CB-2812 February 21, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On September 25, 1973, Administrative Law Judge John F. Corbley issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in reply to Respondent's exceptions and in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions' of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge concluded that Respondent violated Section 8(b)(1)(A) and (2) of the Act by refusing to refer for employment the complainant herein because of his lack of member- ship in Respondent's organization. He further con- cluded that Respondent generally accorded prefer- ence to its own members in referring applicants for employment. As a remedy therefor, the Administra- tive Law Judge recommended a broad and unusual remedy. Respondent excepts to the remedy portion of the Administrative Law Judge 's Decision, contending that it constitutes an unwarranted intrusion into the operation of its referral procedure . We find merit in this exception. Contrary to the Administrative Law Judge, we conclude that the record before us discloses no persuasive evidence of a continuing or widespread pattern of unlawful discrimination by Respondent against nonmember referral applicants .3 Rather, the facts here involve unlawful discrimination primarily directed against a single complainant . As noted above, however, the Administrative Law Judge recommends a broad and, indeed, extraordinary remedy for the violations committed herein. Thus, his recommended remedy provides for close and continuing supervision by the Regional Director over Respondent's operation of its exclusive referral system. Furthermore, his recommended remedy prescribes the very modus operandi to be used by Respondent under its present referral procedure, as well as under any exclusive referral provision which may be contained in future collective -bargaining agreements between Respondent and the area employers. Absent the existence of any unusual circumstances in the instant case, we find it unneces- sary and inappropriate to impose upon Respondent a remedy of such breadth .' Furthermore, in the absence of sufficient evidence of a pattern of unlawful discrimination by Respondent , we find no justification for departing from the remedies we customarily provide in cases of this kind , which we conclude will adequately remedy the unfair labor practices committed herein. Accordingly, we do not adopt the Administrative Law Judge 's recommended remedy, and we shall order Respondent to take the action set forth below. i In view of the Administrative Law Judge's finding, with which we concur, that the discrimination against the complainant herein was based on his nonmembership in Local Lodge No 169, we find it unnecessary to pass upon the General Counsel's reliance on Miranda Fuel Company, Inc., 140 NLRB 181, enforcement denied 326 1,.2d 172 (C A. 2, 1963) We agree, for the reasons set forth by the Administrative Law Judge, that Clarence Vincent was an agent of Respondent , but we find additional support for this conclusion from the failure of Respondent to deny that Vincent had been designated as its union steward at the'1ownsend and Bottum jobsite, and the admission by Vincent that he had notified Respondent when the boilermaker work on that Job had been completed, a function which the record clearly shows had been performed in the past by Respondent's stewards In these circumstances , we find that Vincent possessed the usual broad authority of a union steward and, therefore, was in fact Respondent's agent for the purposes of our decision herein Cf. Local 825, International Union of Operating Lngineers , AFL-CIO (Morin Erection Co, Inc ), 168 NLR B I, 3; Local 1016, United Brotherhood of Carpenters & Joiners of America, AFL-CIO (Booher Lumber Co, Inc), 117 NLRB 1739, enfd in relevant part 273 F 2d 686 (C A 2. 1960). The Administrative Law Judge inadvertently referred to certain events as having occurred during the year 1973, whereas the record clearly discloses that they occurred during 1972. Accordingly, we hereby amend his Decision at the following places by substituting "1972" for "1973": twice in the first sentence of the 10th paragraph of sec. III, C, in the second sentence of the third paragraph under "Concluding Findings", and twice in the first sentence of the fourth paragraph under "Concluding Findings." 2 We find it unnecessary to pass upon the Administrative Law Judge's conclusion with respect to the appropriateness of deferring the instant case to arbitration under the principles of Collyer Insulated Wire, 192 NLRB 837, in the absence of exceptions thereto Member Jenkins would not defer to arbitration in any event. The Administrative Law Judge, in reaching the conclusion that Respondent generally gave preference in job referrals to its own members, relies upon evidence showing that Respondent referred its own members in greater numbers than nonmembers during a )-week period in November 1972, and during the month of March 1973. We do not, however, consider these periods as sufficiently representative to support such a conclusion, particularly in light of the Administrative Law Judge's additional finding that Respondent referred nonmembers to 1,500 jobs while referring members to only 515 jobs during the year immediately prior to the hearing herein 4 Cf Local 138. International Union of Operating Engineers, AFL-CIO fJ J Hagerty, Inc J v NLRB, 321 F 2d 130. 137-138 (C.A. 2, 1963), Ironworkers Local Union No 290, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (Mid-States Steel Erection Company), 184 NLRB 177; International Association of Bridge, Structural and Ornamental Iron Workers, Local 350 (Atlantic County Building Trades Employers A ssociation, et al), 164 N LRB 644, at in 1 209 NLRB No. 32 BOILERMAKERS, LOCAL NO. 169 141 THE REMEDY Having found that the Respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. We have found that the Respondent caused Riley Stoker Corporation to deny employment to Clayton M. Gerard because of his lack of membership in the Respondent's organization. We shall therefore order the Respondent to notify Riley Stoker Corporation. in writing, and furnish copies to the above-named individual, stating that it has no objection to referring him to employment. We also order the Respondent to make the above-named individual whole for any loss of earnings he may have suffered because he was discriminatorily denied referral for employment beginning with the Riley Stoker job on November 3, 1972, until his referral on May 3, 1973, by payment to him of the sum of money he would have earned during this period, less net earnings, if any, during such period, to be computed in accord- ance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, together with interest thereon at the rate of 6 percent per annum as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, International Brotherhood of Boilermakers. Iron Shipbuilders, Blacksmiths, Forgers and Helpers Local Lodge No. 169, AFL-CIO, Detroit, Michigan. its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Discriminating against Clayton M. Gerard, or any other applicant, by refusing to refer him to work available under its exclusive referral procedure, or otherwise discriminating against him, because of his lack of membership in Respondent Local Lodge No. 169. (b) Causing or attempting to cause Riley Stoker Corporation to deny employment for, or otherwise discriminate against, the above-named individual, or any other applicant for referral, because he is not a member of Respondent Local Lodge No. 169. (c) In any like or related manner restraining or coercing referral applicants in the exercise of their rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Notify Riley Stoker Corporation and Clayton M. Gerard, in writing, that the Respondent has no objections to referring him for employment; also notify the above-named individual, in writing, that henceforth it will not coerce or restrain him by unlawfully infringing upon his rights guaranteed by Section 7 of the Act. (b) Make Clayton M. Gerard whole for any loss of earnings he may have suffered by reason of the discrimination against him as set forth in the section of this Decision and Order entitled "The Remedy." (c) 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 Order. (d) Post at its offices and meeting halls in Detroit and Midland, Michigan, copies of the attached notice marked "Appendix. Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's authorized representative, shall be posted by Res- pondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reason- able steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. The Respondent shall also sign copies of the notice which the Regional Director shall make available for posting by Riley Stoker Corporation, if it be willing. (e) Notify the Regional Director for Region 7, in writing. within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 5 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board - APPENDIX No i IC E To MEMBERS POSTED BY ORDER OF TILE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WL WILL No'l refuse to refer Clayton M. Gerard for work available under our exclusive referral procedure, or otherwise discriminate against him, or any other referral applicant, because of his lack of membership in Local Lodge No. 169. WE WILL. NOT cause or attempt to cause Riley Stoker Corporation to deny employment, or to otherwise discriminate against the above-named individual, or any other referral applicant, be- cause he is not a member of Local Lodge No. 169. 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any like or related manner restrain or coerce referral applicants in the exercise of their rights guaranteed them by Section 7 of the Act. WE WILL make whole the above-named indi- vidual for any loss of earnings he may have suffered by reason of our discrimination against him. INTI - RNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS. BLACKSMITHS, FORGERS AND HELPERS LOCAL LODGE No 169, AFL-CIO (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 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 compli- ance with its provisions may be directed to the Board's Office, 500 Book Building. 1249 Washington Boulevard, Detroit, Michigan 48226. Telephone 313-226-3200. DECISION STATEMENT OF THE CASE JOHN F. CORBLEY, Administrative Law Judge: A hearing was held in this case on July 2, 3, 17, 18, and 19, 1973, at Bay City, Michigan, pursuant to a charge filed by Clayton M. Gerard, an individual (sometimes hereinafter referred to as Gerard or the Charging Party) on April 12, 1973, which was duly served on Respondent the same day and a complaint and notice of hearing , issued by the Regional Director for Region 7 of the National Labor Relations Board, which was served on Respondent on June 1, 1973. The complaint alleges that Respondent has, since on or about November 6, 1972, failed and refused to refer the Charging Party for boilermaker employee employment opportunities at the Riley Stoker Corporation (hereinafter Riley) jobsite at the Consumers Power Company project at Essexville, Michigan, or to any other employer seeking referral of boilermaker employees from Respondent pursuant to the exclusive referral provisions of Respon- dent's contract with Riley and other employers, because the Charging Party is not a member of Respondent and because Respondent was giving preference in such referrals I At the hearing the complaint was amended to allege. and the answer was amended to admit, that the only installation of Riley involved in this to its own members. By these acts, the complaint further alleges, Respondent has restrained and coerced and is restraining and coercing, employees in the exercise of rights guaranteed in Section 7 of the Act, and thereby did engage in, and is engaging in, unfair labor practices affecting commerce within the meaning of Sections 8(b)(l)(A) and 2(6) and (7) of the Act. By this same conduct the complaint further alleges that Respondent has caused or attempted to cause an employer to discriminate against his employees in violation of Section 8(a)(3) of the Act and thereby did engage in, and is engaging in. unfair labor practices affecting commerce within the meaning of Sections 8(b)(2) and 2(6) and (7) of the Act. In its answer, which was also duly filed, Respondent denied ,the commission of any unfair labor practices.[ The answer also affirmatively avers that this matter should be deferred to arbitration under the doctrine of the Board's decision in Collyer Insulated Wire, 192 NLRB 837. More will be said about this contention later in this decision. For reasons, which will appear. I find and conclude that Respondent refused to refer the Charging Party to employers covered by Respondent's exclusive hiring hall for job opportunities in the boilermaker trade because the Charging Party is not a member of Respondent and that Respondent has thereby violated Section 8(b)(1)(A) and 8(b)(2) of the Act. At the hearing, the General Counsel and the Respondent were represented by counsel. All parties were given full opportunity to examine and cross-examine witnesses, to introduce evidence and to file briefs. The General Counsel presented oral argument at the conclusion of the hearing, the Respondent waived this opportunity, and briefs have been filed by the General Counsel, received by me on August 24, 1973, and by Respondent, received by me on September 11, 1973. Upon the entire record 2 in this case, including the briefs, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RILEY STOKER CORPORATION Riley Stoker Corporation is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the Commonwealth of Massachusetts. At all times material herein . Riley has maintained its principal office and place of business at 9 Neponset Street in the City of Worcester and Commonwealth of Massachu- setts. Riley is, and has been at all times material herein, engaged in the manufacture, sale, installation, and distrib- ution of steam generating units and related products. Riley installs said steam generating units for its customers at said customers' locations situated in various states of the United States including the State of Michigan. Riley's installation site is located at the Karn plant of Consumer's Power Company Essexville, Michigan, and is the only facility of Riley involved in this proceeding. During the year ending December 31, 1972 , which period proceeding is the Karn, rather than the Weadock, plant 2 The transcript of the proceeding is hereby corrected BOILERMAKERS, LOCAL NO. 169 is representative of its operations during all times material hereto, Riley in the course and conduct of its business operations, purchased and caused to be transported and delivered at its Worcester, Massachusetts, plant, steel, copper, and other goods and materials valued in excess of $65 million of which goods and materials valued in excess of $50,000 were transported and delivered to its plant in Worcester, Massachusetts, directly from points outside the Commonwealth of Massachusetts. During the year ending December 31, 1972, which period is representative of its operations during all times material herein, Riley, in the course and conduct of its business operations, manufactured, sold and delivered at its Worcester, Massachusetts , plant, products valued in excess of $70 million of which products valued in excess of $50,000 were shipped from said plant directly to points located outside the Commonwealth of -Massachusetts. Riley is now and has been at all times material herein an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.3 II. RESPONDENT ; THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that International Brotherhood of Boilermakers, Iron Ship- builders, Blacksmiths, Forgers and Helpers Local Lodge No. 169, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 1I1. THE ALLEGED UNFAIR LABOR PRACTICES A. The Respondent's Offices, Officers and Geographical Jurisdiction The Respondent's hall is located in Dearborn, Michi- gan.4 Respondent's geographical jurisdiction includes the entire State of Michigan, except for three counties in its southeast corner. This geographical jurisdiction is divided into four numbered areas. Area III, principally here involved, is served frDm an office located in Midland, Michigan, which was opened on or about September 15, 1972, and which is shared by Respondent and two other labor organizations. Respondent's business manager is Harold Rasmussen, who works in and out of the Dearborn hall which is in area I of Respondent's geographical jurisdiction. Each of the other geographical areas is served by an assistant manager. The assistant manager for area III since March 1972 is Donald Mullet. Mullet's predecessor as assistant business manager was Stanley "Larry" Westphal. Rasmussen and Mullet admittedly have been and are now agents of Respondent, acting in its behalf, within the meaning of Section 2(13) of the Act. The complaint further alleges, and the answer denies, that (Clarence Eugene) "Gene" Vincent, a steward for Respondent at the so-called Townsend and Bottum job in the early fall of 1972, was an agent of Respondent. 3 1 reach this conclusion and make the findings subsidiary thereto, based on the allegations of the complaint, admissions in the answer or statements in the answer that Respondent upon information believes the allegations of the complaint to be true See Sec 102.20 of the Board's Rules and Regulations and Statements of Procedure, Series 8. as amended 143 I conclude that Vincent was an agent of the Respondent at that time acting within the scope of his authority. I rest this conclusion on the credible and essentially undisputed testimony of the Charging Party as to the functions of a steward. The Charging Party, who, although he has been a member of Respondent, has been a steward for Respon- dent on several occasions most recently at the Pearson job in Alpena, Michigan, in the spring of 1972. The then assistant business manager, Westphal, appointed the Charging Party to this post. The Charging Party testified that, as a steward, he processed a grievance for a fellow employee, Cartwright, in which he, the Charging Party, spoke to the contractor, persuaded the contractor not to discharge Cartwright but to lay him off and then obtained for Cartwright anotherjob. This last aspect of the Charging Party's action was ratified through Respondent's hall. At the time he was steward at the Pearson job, the Charging Party was the only steward of Respondent on that job. Also, as part of his duties, the Charging Party spoke to the assistant business manager for Respondent on a few occasions and contacted the business manager, Rasmus- sen, by telephone and sent weekly reports to Rasmussen at the Respondent's Dearborn hall. In speaking to the business manager, Gerard reported the presence of nonunion employees at a site on one occasion and on another requested that additional men be referred to fill vacancies. Vincent, called as a Respondent witness, did not elaborate on his duties as a steward except to say he notified Respondent's assistant business manager, Mullet, when the Townsend job was completed. Since there is no indication that any other steward served during Vincent's tenure at the Townsend and Bottum job and in view of the small number of boilermakers working on that job (six) I conclude he was the only steward of Respondent at that site at times relevant hereto. I further conclude that a Respondent steward is the representative of the Respondent at a site where the members or boilermakers it has referred are working and is the point of contact for employees, employers, and Respondent alike in dealing with union matters including, variously, grievances, layoffs, working with nonunion employees and the need to fill vacancies. I conclude that Vincent, as a steward, had these same responsibilities at the Townsend and Bottum job as the only steward at the time and that Vincent was then an agent of Respondent within the meaning of Section 2(13) of the Act acting within the scope of his authority at times pertinent hereto dealing with matters of layoff and expected vacancies, as will appear.5 B. The Respondent's Exclusive Hiring and Referral System The Respondent's International has, since at least 1966, been a party to a national agreement, Boiler Manufactur- i The Dearborn hall is sometimes referred to in the record as "Detroit" or the office or hall in "Detroit," near which Dearborn is located Public Uttbty Construction and Gas Appliance WorAerv of the State of .New, Jersey, Local 274. UA, 120 NLRB 355, 362 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ers National Construction Agreement, to which Riley is also signatory. This agreement, which contains an arrange- ment whereby the Union exclusively refers applicants for employment to the covered employers, provides for local area implementation by the appropriate local union. Respondent and Riley have in fact maintained a practice whereby Respondent is the exclusive source of boilermaker employees at Riley's jobsite at Essexville, Michigan, which is here involved. More specifically, the national agreement provides, upon local implementation , for a local union to operate an exclusive hiring hall for the referral of all "competent and qualified" field construction boilermakers, boilermaker helpers, and boilermaker apprentices. The local union is required to maintain a registration facility whereunder applicants shall be registered on the appropriate out-of- work list for each classification in order of time and date of registration. Each applicant is required to reconfirm his availability every 2 weeks and be available by telephone within 4 hours to maintain his place on the out-of-work list. One way a boilermaker may qualify for registration is on the basis of 4 years' practical experience in the boilermaker trade as a foreman, subforeman, or boilermaker in the building and construction industry . Lesser qualifications are required for boilermaker helpers and boilermaker apprentices . Referral of men under the exclusive hiring arrangement, thus established, is to be a "first in, first out" basis without regard to union membership. Joint referral committees are to be established in local areas to oversee certain operations of the exclusive hiring hall. These committees also pass upon any questions which may arise as to the competency and qualifications of an applicant.6 Pursuant to the provisions of this same agreement, Respondent has established local area joint referral committee rules and standards. These provide in part that an applicant may register for referral in any area of or all of the four areas in Respondent's jurisdiction; may register in person, by telephone or mail, provided he has estab- lished his qualifications and special skills , if any, and completed any forms submitted to him; may pass up one referral without penalty; and may appeal any dispute arising out of the operation of the plan to the local joint referral committee (consisting of both employer and union representatives) pursuant to certain procedures set forth in the rules. More will be said hereinafter about the appeal procedure when I address Respondent's affirmative Collyer defense. The local rules also state that bona fide requests by an employer for boilermakers with special skills and abilities will be honored by Respondent.' These rules are posted at the Respondent's office in Dearborn, Michigan. The referral arrangement established by the national agreement, described in part , supra, and the implementing local rules are not alleged to be unlawful in the complaint. The complaint rather alleges that Respondent in the operation of its exclusive referral arrangement has refused 6 These findings are based upon certain factual background allegations in the complaint and admissions in the answer as well as the agreement itself, the relevant sections of which were received in evidence without objection. 7 1 make these findings as to the local rules based on Rasmussen's undisputed testimony as to their adoption and posting and the receipt in evidence without objection of a copy of these rules. to refer the Charging Party because he is not a union member and that such refusals to refer him constitute unfair labor practices. The Respondent's hiring hall does not operate in the manner established by the national agreement nor does the hall even function in a manner consistent with the local rules. To begin with there is no referral list , as such. The only "list" maintained by Respondent of out-of-work employees desiring referral are their record envelopes which are kept in a box at Respondent's Dearborn hall separate from the card records of employees already referred and still working.8 The records of members are kept in a separate section of this out-of-work box from the section in the same box where the records of the nonmembers are kept. Further, although the nonmember applicants whom Respondent has referred over the past year or so (about 1,000 nonmembers) outnumbers Respondent 's members (approximately 515) by almost two to one, Respondent has a telephone book at its Dearborn hall containing the names and phone numbers of all its members but only about 65 to 67 nonmembers .9 All out-of-work cards are kept "loosely" in the order in which applicants become available for referral , but not in the order of registration or notice of availability. Appli- cants do not have to register for referral, where they have had prior employment based on referral , but are consid- ered by Respondent as available for a new referral when Respondent has been notified that they have been laid off from the last job to which they were referred . Respondent is advised of such layoffs by reports of its stewards at the jobsite where the layoff occurred . Referrals are made not in the order in which applicants become available but rather in the "discretion of the business manager," or his assistant who is called a dispatcher. Applicants are not required to call in every 2 weeks to insure continuance of their record in the out-of-work file, as the contract requires . Further, although the contract provides penalties for passing up more than one referral, Respondent's hall may permit an applicant two or three declinations without penalty and in this regard the assistant business managers have a certain amount of discretion to refer the applicant to later jobs . In this same connection, an applicant may pass up an immediate referral to a short term job in hopes of referral to one of longer duration. Although an applicant should be available for telephone contact by the hall for a referral at certain hours of the day or suffer penalties set forth in the contract and the rules, these requirements are likewise not rigidly applied. While there are methods set forth in the national agreement and the national joint rules and standards committee referral provisions whereby a local joint referral committee may establish the qualifications of a boilermak- er for referral (including the requirement of an examina- tion), if a question arises in regard to such qualifications, I construe that local rule referral formula "in order of seniority in classification" to mean the same as the contract 's "first in . first out" standard , for, to construe the local rule otherwise, would make the local rule inconsistent with the contract. N No permanent out-of-work records are kept at Respondent 's area III office in Midland , Michigan. Nonmembers are sometimes referred to in the record as "boomers." BOILERMAKERS, LOCAL NO. 169 145 referrals have instead been made on the basis of the evaluations by Respondent's business manager or assistant business manager. These evaluations are arrived at by observation of such officials or by word of mouth appraisals given to them by stewards and others.10 As Rasmussen described Respondent's exclusive referral system, it has since 1966 been "a very relaxed rule and referral system." It is therefore against the background of the actual operation of Respondent's exclusive referral procedures, as well as the requirements of the national contract and the national and local rules, that the failure of Respondent to refer the Charging Party to work opportunities subsequent to mid-fall of 1972 must be assessed. C. Sequence of Relevant Events; Gerard's Background and his Failure To Obtain Work from Mid-Fall 1972 to Mid-Spring 1973 The Charging Party, Clayton Gerard, is a big strapping fellow who, based on his appearance, is about 6 feet 3 inches, in height, and about 220 pounds, in weight. He is not a member of Respondent but is a member of Boilermakers Local 83 in Kansas City, Missouri, although he has not worked in that area or been referred by that Local. He is now, and has been for some time, a resident of the Bay City, Michigan, area where he now resides with his parents. This location is in Respondent's geographical area III. His first job in boilermaking work occurred in about 1955. He did not, however, resume work in this field until 1966. He thereafter was employed-by referral from Respondent under its referral procedure-in boilermaking work from 1966 to May 1972 when he was laid off from the so-called Pearson job in Alpena, Michigan. Respondent's Dearborn hall was apprised of this layoff on the basis of a steward's report completed by the Charging Party himself as the steward at that job. More will he said about the Charging Party's qualifications for boilermaker work when Respondent's principal defense is considered later in this decision. 10 All the foregoing findings as to the actual operation of the exclusive referral system are based upon the admissions of Rasmussen 11 While there is some testimony by the Charging Party that he telephoned the assistart business agent , Don Mullet, about obtaining a referral during this period, the Charging Party's recollection as to the dates during the period was poor For example the Charging Party recalled visiting Respondent's Midland office in June, July, or August 1972 to speak to Mullet, but that office did not open until September 15. as 1 have found Mullet, who took telephone calls dealing with work referrals at his home in Mt Pleasant, Michigan , until the Midland office opened , testified that the Charging Party had never called him, Mullet, at home Since the summer of 1972 is outside of the Section 10(b) limitations period. I find it unnecessary to resolve this credibility conflict nor to make any other findings in respect to Clayton Gerard's activities during this period 12 George Gerard is a painter and has also done boilermaker work on referral from Respondent. 13 1 make these findings principally on the basis of the credible testimony of Clayton Gerard who, except for some difficulty in recalling dates, testified forthrightly in respect to events in this and subsequent periods which he was able to put in sequence by relation to other events Davis' testimony is credited, as quoted, and is consistent with the Charging Party's version of this aspect of the conversation Davis was not asked about his request that Vincent contact Mullet Vincent at first denied all aspects of this conversation, but, upon seeing his affidavit to the Board agent, admitted that Davis had said he could use "you" (which is a singular as well as a plural word) to work later in the year Vincent admitted that Davis told The Charging Party was unemployed (or at least did no boilermaker work by referral from Respondent) during the late spring and summer of 1972.11 In September 1972, after the Midland office opened, Clayton Gerard and his brother, George Gerard,12 visited Mullet, Respondent's assistant business manager, at Respondent's Midland office. Mullet told the Gerard brothers that there was no work available for them at this time. Shortly thereafter, however, Clayton Gerard was referred to, and took work at, the Townsend and Bottum job in Essexville, Michigan, about the end of September 1972. As previously noted, Vincent was the steward at the Townsend and Bottumjob. At some point midway in the course of the Townsend and Bottum job, or about late September or early October 1972, Vincent, Respondent's steward, spoke with Edward Davis, Field Superintendent for Riley Stoker. This conver- sation took place at the Townsend and Bottum site which was nearby Riley's site at Karn. Present were Davis, Vincent, the Charging Party, and other Townsend boiler- makers. Davis told Vincent he hoped "they got over on the job when I started hiring in men." I conclude that "they" meant Vincent, the Charging Party and the other Town- send boilermakers present. In this same conversation Davis asked Vincent if this could be arranged by calling Mullet. Vincent agreed to do this.13 After Davis made this request to Vincent, Vincent subsequently told the Charging Party in the presence of Robinson and Lewis (the other two non-Respondent boilermakers) at the Townsend job that he, Vincent, had spoken to Mullet,14 and he, Vincent, was fearful that the non-Respondent Townsend boilermakers were not going to get on the Rileyjob. The Townsend job came to an end on November 3, 1972, and all six boilermakers, three members of Respondent and three nonmembers, were laid off no later than that date Gerard, I conclude, was laid off shortly before that date.15 In view of Vincent's admission that he promptly called Mullet, I conclude that this steward's report then put him that the Townsend crew was "a fine bunch of looking boilermakers" Vincent also twice changed his testimony regarding the number of boilermakers on the Townsend Job I credit the Charging Party's recollection of these and latter events at the Townsend site over that of Vincent and my findings are based pnmarily on the Charging Party's testimony ii Vincent denied speaking to Mullet about Davis' request but rather testified that he simply called Mullet at the end of the Townsend Job to tell Mullet the job was over and that boilermakers were laid off. Vincent stated that he did not even ask Mullet at that time about referrals to the Riley Job I find this testimony incredible in the light of Vincent '% almost immediate referral thereafter to the Riley job and his interest in that Job as admittedly expressed to Clayton Gerard Thus, Vincent admitted he discussed the Riley Job with Clayton Gerard and told Gerard he hoped to get laid off before the completion of another boilermaker job in the vicinity, because he would thereby get ahead of the people from the other job on the out-of-work list and this would put "a lot of work ahead of us " I conclude in the context of this remark that the "a lot of work" referred to by Vincent was the Riley job. which, he said, was expected to run 4 years according to what Davis told him i' Vincent testified that all of the boilermakers were laid off together T he referral card of Eugenis. one of the six laid off, shows that he was laid off from the instant job on November 3, 1972 Gerard did not recall the exact date the Job ended and stated, at one point in his testimony, that other boilermakers may have worked a few more days than he Also after being refreshed with a look at his rownsend pay stub. Gerard testified that he last worked on October 24 1973 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent on notice that Clayton Gerard was "out-of- work" and that Gerard, under Respondent's practice, thereby became eligible for referral. The three boilermakers from the Townsend job, who were members of Respondent,-Vincent, Eugenis, and Evans-were referred to the Riley Stoker job at Karn on November 6, 1972, by Respondent. As Vincent had previously warned, the three Townsend nonmember boilermakers (including Gerard) were not. During the period November 6, 1972, through November 14, 1972, only members of Respondent (with one excep- tion) were referied by Respondent to jobs in all the geographical areas of its jurisdiction. These jobs were to begin from November 9 through November 30. By my count 160 referrals of Respondent's members were made during this period.16 Of these 160 referrals, Respondent's members R. Busch, C. Carter, C. Hardman, G. Herbert, G. Hinkle, J. Koehler, F. Smales, J. Snell, C. Van Slaubrouck, and D. Visser were referred twice and members N. Tarasick and H. Vickery were referred three times. Sometime in November 1973, after his layoff on November 3, 1972, but before the deer hunting season began on November 15, 1973, the Charging Party and his brother George Gerard went to see Mullet at Respondent's Midland hall about referral for work. Mullet advised the Gerards that he couldn't put them to work adding that about 30 "local men" were out of work at that time.17 When Mullet spoke of local men, I conclude he was speaking of members of Respondent.18 On December 7, 1972, Clayton Gerard called Mullet person-to-person at the Respondent's Midland office to seek work but Mullet told him none was available. On or about January 21, 1973, Rasmussen telephoned 16 1 accord no weight to Rasmussen's speculative testimony that boomers (nonmembers) probably left the area at that time because "we" (Respon- dent) had so many men out of work at that time (This testimony was offered to explain why no nonmembers were referred during this period) I do attach weight to this remark as an admission of Rasmussen 's awareness that nonmembers do not expect referrals when Respondent's members are out of work 17 1 make these findings on the basis of the credible and generally corroborative testimony of Clayton Gerard and George Gerard Mullet recalled the conversation and also stated that about 40 members and nonmembers were out of work in the area at that time Mullet denied stating that he could not put the Gerards to work because local men were out of work at that time There are a number of conflicts in the testimony of the Charging Party and/or his brother, on the one hand , and Mullet on the other in addition to the above, Mullet also denied speaking to Clayton Gerard by telephone on December 7, 1972, and February 6, 1973, telephone calls which will be discussed hereinafter These calls were billed by the telephone company as person-to-person calls to the telephone number at Respondent's Midland office and, according to the Charging Party's credible taumony , he spoke to Mullet directly Mullet later changed his testimony, at least as to the second of these telephone calls, to the statement that he could not recollect the conversation In at first denying these last two telephone calls Mullet noticeably blinked his eyes , according to my trial notes I did not notice otherwise that this was his habit while testifying Wherever a conflict appears in the testimony of Mullet on the one hand and the Charging Party or the latter's brother in the other, I have credited the recollection of Clayton Gerard or his brother as to the events in question I have already described the forthright manner of Gerard in testifying George Gerard's manner was similar 18 This inference is inescapable A literal interpretation of local men (to mean men living in the local area) would make no sense because the Gerards themselves lived in the local area Moreover, Rasmussen likewise the Charging Party who received a message to return the call.19 The Charging Party returned the call on January 21, 1973, and spoke to Rasmussen. Rasmussen offered the Charging Party some work at least in the Detroit area. Rasmussen also told the Charging Party that Mullet was saving the Charging Party for the Karn job and that he, the Charging Party, would be.better off to wait for it. The Charging Party did not accept the offer of a referral at that time, explaining, in part, in his testimony that he wasn't too interested in going to Detroit.20 On February 6, 1973, Gerard again telephoned Mullet to ask specifically about referral to a certain repair job at Weadock. Mullet told Gerard that he, Mullet, was saving Gerard for the Karn plant job on the Consumer jobsite (the Riley job).21 In February 1973, there was a significant upswing in employment in boilermaker work. This included the Palisades job mentioned by Rasmussen in his testimony, recounted supra. A substantial number of nonmembers were referred to this and other jobs in that month. In March 1973, the referral opportunities went back to "chicken s-t" jobs, in the lexicon of Rasmussen. During the period March I to 16, 1973, some 285 of Respondent's members were referred for work whereas only 23 nonmem- bers were referred during the same period. In March, Rasmussen admitted, he was aware that the Charging Party was available for work. On April 12, 1973, as previously found, Gerard filed the charge in the present case. Sometime in April 1973, Gerard also called Mullet about a job referral and complained that Respondent had used the phrase "local men" in his testimony and explained that in his use of that phrase he meant members of Respondent 19 Prior to this time the Charging Party telephoned Rasmussen several times at Detroit but was unable to get through to him 20 In its brief Respondent asserts that Gerard gave divergent versions of this conversation I conclude that the final state of the record-bearing in mind Gerard's weakness on dates, but clarity on events-supports my findings above as to what was stated by Rasmussen in this conversation Gerard was confused about this conversation, but when he recalled the event in which a possible referral to Detroit was discussed, his testimony thereafter is consistent and believable For his part, Rasmussen admitted the conversation and stated he offered Gerard work in the Detroit area or at a nuclear plant at Palisades in the western part of Michigan He also stated Gerard said he was "hanging loose" and wanted to make the Riley job in Bay City To this Rasmussen admittedly said, "be my guest " Rasmussen's testimony that he told 3erard the referrals offered and elsewhere "sure beat unemployment" was changed on cross-examination to testimony that this is his "standard cliche," but he wasn't certain he said it to Gerard in the instant phone call Rasmussen's denial that he advised Gerard to wait for the Riley job from Mullet is directly contrary to Rasmu .,en's admission that he, Rasmussen, told Gerard to "be my guest" in response to Gerard's statement that he, Gerard, planned to wait for the Riley job Other testimony of Rasmussen, which might be contrary to Gerard's is prefaced by the expression "I would have told" Gerard which falls short of testimony as to what was actually said In view of the above, I credit Gerard's version of this conversation Under the contract, as noted, Gerard had the right to one pass of a referral without penalty and the right to several passes under Respondent's policy 21 Although the Charging Party did not repeat this latter aspect of the conversation in cross-examination he did state on cross that Mullet had previously told him he was being saved for the Karn job BOILERMAKERS, LOCAL NO. 169 147 referred a permit (apparently nonhoilermaker) employee to a boilermaker job 22 Also in April 1973, about 2 weeks before May 3, 1973, the Charging Party spoke to Rasmussen at home and asked if he, Gerard, was on the out-of-work list. To this, Rasmussen replied that he was not going to put Gerard on the out-of-work list until he did something official. Rasmussen then hung up.23 On April 23, 1973, Gerard's attorneys wrote a letter to Rasmussen stating that they had been retained to represent him, that Gerard was ready and available for work pursuant to the constitution of Respondent's International and Respondent's bylaws and that Gerard had authorized these attorneys to institute proceedings against Rasmussen if Gerard continued to be denied employment. Rasmussen admitted that in April he told his office to put Gerard on the out-of-work list and refer him to the next job. The Charging Party was referred by Mullet for work on May 3, 1973, to a job with Terre-Haute Industries and the Charging Party was working there at least until the hearing began on July 2, 1973. This was his first referral since the Townsend job in September 1972. although, as noted, he was offered and declined referral on January 21, 1973, in a telephone conversation with Rasmussen.24 D. Respondent 's Defenses 1. The defense that Gerard was not referred to the Riley Stoker job was because Gerard was not qualified for work with the employer. Respondent's principal defense is that Clayton Gerard was not referred to the Riley Stoker job for the reason that he was not qualified to do the work on that job. Respondent contends that the Riley job dealt with work on two of the largest pressure boilers ever installed in Michigan and that only highly skilled top riggers qualified for the rigging work involved. The riggers referred to this job were, says Respondent, more highly qualified than the Charging Party. And, Respondent concludes that, in making referrals, it was not precluded from using its best judgment as to the relative qualifications of employees seeking referral. Gerard began work in the boilermaker trade in earnest in 1966, having had brief experience at such work in 1955. Between 1955 and 1966 he worked as a painter and a steeplejack. Between 1966 and 1970 he was referred by Respondent for boilermaker jobs, Rasmussen advising employers at that lime that he was sending out "less than qualified" registrants to jobs. By 1970, however, Respon- dent concedes in its brief, Gerard had 4 years qualifying experience as a boilermaker.25 Four years experience as a boilermaker qualifies a boilermaker for registration on a boilermaker's out-of- work list under the provisions of the aforementioned Boiler Manufacturers National Construction Agreement applica- ble hereto.26 Respondent's brief further concedes that by 1972 Gerard had approximately 6 years' experience as a boilermaker.27 Nowhere is there any indication that the Charging Party was refused employment by a contractor at any time from 1966 to 1972 based on lack of qualification, although a contractor is entitled under the national agreement to reject an applicant referred by a local union such as Respondent. Nor is there any indication that Gerard has ever been requested to take a boilermaker "competency examination," although such might have been requested under the national agreement. Nor is there any showing that any question has been raised as to his competence (a question which would be resolved by the local joint referral committee under the national agreement and implement- ing rules) from 1970 until Respondent has now taken the position that he was not qualified for referral to the Riley Stoker job. I find. therefore, that Clayton Gerard had 6 years qualifying experience as a boilermaker in November 1972 and that this is more than sufficient to meet the 4-year requirement of the national agreement for placement in this boilermaker classification on the out-of-work list. While the record amply shows that a rigger and, particularly, a high rigger are demanding jobs of consider- able skill in the boilermaking trade, I also conclude that Gerard is a qualified high rigger. For he has worked at several jobs--on referral from Respondent-requiring him to perform rigging work at heights of 90 feet or more. These jobs included a job with Riley Stoker at Harbor Beach in the late 1960's at which Gerard worked as a boilermaker at substantial heights regularly for about 2 years.29 Also, Gerard worked at the DeVilbiss job for several months in early 1972 which involved work on a 90- foot stack and also the Townsend job in September and October 1972, which required lifting a deairator unit to the top of a building 29 There is no indication that anyone. contractor or Respondent, raised any question as to Gerard's capabilities when he was performing any of these assignments. In any event, the statement by Davis, field superintend- ent of Riley Stoker, to Vincent in the presence of other boilermakers including Gerard at the Townsend job 22 The Charging Party's name appears on Mullet's desk pad under the date April 24, 1973. 23 These findings are based on the testimony of Gerard Rasmussen's version of the conversaton is essentially corroborative . Rasmussen recalled the call , stated that Gerard complained of his failure to be referred and that he wasn't being treated fairly under the rule-, To this Rasmussen told Gerard that, if Gerard were going to be technical, Gerard was supposed to call the office during working hours to show availability Rasmussen admitted being angry about the call and said he probably hung up on Gerard 21 As previously noted, under the national agreement and implementing rules, an applicant could turn down one referral without penalty In practice, however, as Rasmussen testified, an individual could turn down more than one referral without penalty and also take his chances on waiting for referral to a long-term job This concession is consistent with the admissions of Rasmussen 2fi See Resp Exh 3, p 14 27 This concession is buttressed by Gerard's printed record of referrals in 1971 and 1972 and testimony as to his assignments in those Vears 2" This finding is based on Gerard's credible testimony Westphal's testimony that the work was of only a few days duration is not necessarily inconsistent because Westphal by his own statement quit that job while it was still going on 2" These findings are also based on the credible testimony of Gerard I disagree with the statement in Respondent ' s brief that Gerard's testimony on rebuttal in regard to the Townsend job is contradictory of his testimony when the General Counsel put on its case in brief For, while the Townsend job involved the installation of deairator which itself is only 12 to 14 feet high, the deairator. as Gerard testified , had to be moved to the top of a building as found, supra 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conclusively establishes that Gerard was qualified to work on the Riley project at Karn. For, as I have found, Davis told Vincent that he hoped they (the Townsend boilermak- er crew) got over on the Riley job when, he, Davis, started hiring men for Riley. Respondent's defense, of course, goes somewhat deeper than the foregoing. What Respondent is saying, essentially, is that it has the right to send its best qualified men and that there is no prohibition against its exercise of this right. And Respondent asserts that Vincent, Eugenis, and Evans, whom it referred to Riley, on November 6, 1972, and Card, Snell, and Flood, referred on or about November 28, 1972, were much better qualified than Gerard to do high rigging work. Further, says Respondent, the welders it referred to Riley in both instances were qualified in an area of -the trade-welding-in which Gerard is not qualified. The record supports the conclusion that riggers Vincent, Eugenis, Evans, Card, Snell, and Flood, all of whom are members of Respondent, are better qualified than Gerard. I find that Gerard, in the absence of any probative evidence to the contrary, is not a qualified welder However, I disagree with Respondent's contention that there is no prohibition in its exercising its discretion in referring out what it considers its most qualified talent.30 The contract of the International with Riley, which is the basis of Respondent's exclusive referral system, prohibits this method of referral. That contract specifically requires referral on a first in, first out basis31 provided the boilermaker is qualified. As I have found, Gerard became qualified for referral under the contract based on his admitted 4 years experience as a boilermaker and should have been referred when his name came in turn to the top of the out-of-work list.32 This means that he should have been referred at least before Eugenis who was laid off after Gerard was laid off from the Townsend job. But even if I were to accept Respondent's defense insofar as the Riley Stoker job is concerned, which I do not, Respondent offers nothing to explain its failure to refer Gerard to boilermaker opportunities with other employers in area III in November 1972,33 although other boilermak- er referrals were made in that area at that time and Respondent's exclusive referral system serviced from 26 to 55 employers in the State of Michigan during the period July 1972 to June 1973. Nor is there any explanation of its 30 Respondent cites Local 341, Hod Carriers, Building and Common Laborers Union of America, 146 NLRB 1358, for this proposition which appears in the Trial Examiner's Intermediate Report However, the Board in that case in affirming the Trial Examiner's Report, did soon the basis of a failure of factual proof, specifically declining to adopt the Trial Examiner's exposition of the law to, p 1358, In 11 31 See Resp Exh 3, p 15 (section 4) 32 Rasmussen admitted, as noted, that Respondent does not refer on a first in , first out basis as required by the cor'ract-see transcript p 311 and pp 332 and 333 Further rigger Card, referred to Riley on November 28, 1972, had been out of work longer than Eugenis, who was referred on November 6, 1972 Thus, Card's file shows he was previously employed by "MBE" (which Rasmussen explained, and I find, stands for Michigan Boiler) at Weadock beginning on September 27, 1972 That job closed down before the Townsend job at which Eugenis was employed until November 31, 1972 (Vincent so testified) Yet, Rasmussen had high regard for the abilities of Card as a top rigger since, according to Rasmussen , Card was one of the "top flight people" he decided to send to Riley on November 27 33 1 note in passing that Respondent's opinion of Gerard was at least as good as its opinion of Harold Martin, judging from the comments of failure to refer him for other boilermaker opportunities as they arose with Riley Stoker.34 In view of the foregoing I reject Respondent's defense that Clayton Gerard was not qualified for referral to Riley on November 6, 1973. 2. Respondent's partial defense that the General Counsel did not give Respondent due notice of one of the General Counsel's violation theories Respondent avers that the General Counsel did not give it due notice of his charge that, in refusing to refer Gerard, Respondent unlawfully violated its duty of fair representation. I likewise find no merit in this defense. The General Counsel in his complaint has pleaded the violations with which Respondent is charged and has set forth the sections of the Act Respondent is charged with violating, i.e., Sections 8(b)(1)(A), 8(b)(2), and 2(6) and (7). The General Counsel has also pleaded in this same complaint that Respondent violated these sections of the Act by refusing to refer Gerard because he is not a member of the Respondent and because Respondent was giving preference in its referrals to its own members. Thus, Respondent has been clearly put on notice of the sections of the Act which it is charged with violating and a factual allegation of the conduct which is alleged as the substance of the claimed violations. What Respondent's argument boils down to is that the General Counsel did not allege in the complaint all of the theories on which he hoped to establish violations of these sections of the Act. I reject this contention. I am aware of no such requirement in pleading and Respondent cites me none. Moreover, in his opening statement the General Counsel did alert Respondent as to this theory citing the authority on which the theory is based, Miranda Fuel Company, Inc, 140 NLRB 181. After the second day of hearing, there was a recess of almost 2 weeks in which Respondent could have prepared its defense to the alleged violations as they may have been based on that theory. Respondent's further contention that the proof underly- ing this theory has failed will be dealt with hereinafter. 3. Respondent's partial Collyer defense. In its brief Respondent argues, as it did at the beginning of the hearing, that this matter should be deferred to arbitration, under principles announced by the Board in Collyer Rasmussen regarding Gerard based on his own observations and reports received by him from his assistant business managers, Mullet and Westphal Respondent referred Martin for work at Weadock and Alpena in are" ill on November 8, 1972, and December 16, 1972, respectively Martin is a member of Respondent Gerard, of course, is not i4 I find no evidence in this record that only high riggers or even riggers were needed to perform the Riley Stoker Job While the testimony of Mullet and Rasmussen is consistent that high riggers (and welders) were sought by Riley on November 6, and I so find , Rasmussen's testimony as to Riley's requests for November 27 or 28 indicate that at that time riggers and welders were requested and I so find Rasmussen's determination to send what he considered "top flight" people was sua sponte The undisputed testimony of Lonnie R Briggs, office administrator of Riley, shows, and I find, that the number of boilermaker mechanics (including riggers) which was 9 on November 29, 1972, increased to 10 on February 28, 1973, to 14 on March 28, 1973 and to 16 on April 25. 1973 The additional boilermaker mechanics hired on or about February 28 and thereafter are not shown to be riggers or high riggers Finally Rasmussen conceded that Gerard was qualified in a number of areas of the boilermaker trade and testified he was willing to refer Gerard in January to a job involving a major repair on a nuclear reactor BOILERMAKERS, LOCAL NO. 169 Insulated Wire, 192 NLRB 837. More precisely the Respondent desires that this dispute be resolved through the process of the local Joint Referral Committee, established under the provisions of the national agreement, and whose function is, among others, to settle disputes over referrals of job applicants.35 Here, in the absence of any evidence to the contrary, I conclude that the Charging Party did not invoke his appeal rights to seek redress under the local area Joint Referral Committee Rules and Standards. However. I reject this defense for the reasons which follow. Such a deferral by the Board, if one were to occur, would proceed on the assumption that the arbitration procedure would "resolve this dispute in a manner consistent with the standards of Spielberg. "36 And the Board in deferring would not dismiss the complaint but would instead retain jurisdiction over the case to insure that the arbitration did in fact accord with Spielberg standards.37 The Board will not defer to arbitration any complaint brought by an individual Charging Party, as here, unless it appears that the interests of that individual harmonize with the interests of one of the parties to the collective- bargaining agreement-employer or union-wherein the arbitration process has been established.38 In the present case, however, the interests of the Union are clearly at odds with those of the Charging Party, because the Respondent is charged with discriminatorily refusing to refer the Charging Party for employment. As to the employers governed by the exclusive referral provisions of the national agreement, these employers either have no interest in the proceeding, since they would presumably have no knowledge of an applicant never referred to them, or, if the employers were aware, their interests would coincide with those of Respondent because they have delegated to Respondent, under the exclusive referral arrangement, a role in the hiring process. Hence, I conclude that this case is not one which is appropriate for deferral to arbitration under the Board's Collyer doctrine.39 Moreover, there is an additional reason in the present case for my refusal to defer. That is, that it cannot be assumed in this case that the arbitration procedure (the procedure which would begin with an appeal to and hearing before the joint referral committee) would resolve this dispute in a manner consistent with Spielberg. For, in Spielberg, the Board relied on the fact that the arbitration proceeding therein appeared to be fair and regular and specifically noted that the four individuals involved were represented by counsel. In the present case article IV, section B, of the referral appellate procedure, relied upon by Respondent in support of its Collyer argument, also provides: 35 See reverse side of G C Ech 7, article IV, local area joint referral committee rules and standards Local 169. 78 National Radio Co, 198 NLRB No I. speaking of Spielberg Mfg Co, 112 NLRB 1080 37 National Radio Co, supra 38 Kansas Meat Packers, a Division of 4risto Foods, Inc, 198 NLRB No 2 iq Cf Anaconda Wire and ('able Compan3, 201 NLRB 775 Respondent's reliance upon legal principles to the contrary as advocated in the 149 ... No professional legal counsel shall be permit- ted to appear for any of the parties at the hearing. (Emphasis mine.) 40 The denial of this fundamental right under article IV, section B, is in my judgment at odds with Spielberg and precludes any assumption that the arbitration process herein would accord with Spielberg standards. For, under the operative facts of that case, Spielberg standards include the right to counsel. Concluding Findings It is. of course, hornbook law that discrimination in job referrals under an exclusive referral arrangement must be proved; it cannot be presumed.41 Where, however, it has been proved that a union has refused to refer an applicant under an exclusive referral system because he is not a member of that union, it is a violation of Section 8(b)(1)(A) and 8(b)(2) of the Act. 42 Here I am satisfied that the General Counsel has proved that Respondent refused to refer the Charging Party to boilermaker opportunities with Riley Stoker and other employers, because he was not a member of the Union. I rest this conclusion principally on the following. On November 6, 1973, when referrals were made to the Riley job, none of the nonmember boilermakers, such as Clayton Gerard, from the prior Townsend job, were referred to Riley Stoker. This was just what Respondent's Townsend steward, Vincent, had warned Gerard and the other Townsend nonmember boilermakers after he, Vincent, acting within the scope of his authority as Respondent's agent in the reporting of layoffs and upcoming vacancies, had spoken to Mullet, the Midland assistant business manager, about referrals to the Riley job. The three boilermakers from the Townsend job who were members of Respondent-Eugenis, Vincent and Evans-were promptly referred on November 6, 1973, to Riley. Yet under the provisions of the national agreement under which Respondent's referral system was established and is supposed to operate, Gerard should have been eligible for referral to that job at least before Eugenis since, as I have found, Gerard was laid off before Eugenis. Further, at or about the same time as the Riley referrals were made, or sometime between Gerard's layoff from Townsend (shortly before November 3, 1973) and the beginning of the local deer season (November 15. 1973), Clayton Gerard and his brother George were told by Mullet that there was no work for them, Respondent's members being out of work. Mullet could not have made it plainer to Clayton Gerard that Clayton Gerard would not intermediate Report in International Hod Carriers, Building and Common laborers Union of America. Local 34! AFL-CIO. 146 NLRB 1358, is misplaced. for, as I have heretofore noted those legal principles were not adopted by the Board The hearing referred to is the one held by the joint referral committee " Local 694. United Brotherhood of Carpenters and Joiners of America. AFI-CIO. 133 NLRB 52. 42 See Local 117, United Brotherhood of Carpenters and Joiners of America. AFL-CIO, 189 NLRB 690 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be then referred, since Gerard was not a member, nor would Gerard be referred with members out of work.43 And, since Mullet is an admitted agent of the Union with responsibility to make employment referrals on the basis of frequent contact with, and instructions from, Rasmussen and other officials at Respondent's Dearborn office, I conclude that Mullet was acting within the scope of his authority and that Respondent is responsible for his conduct. Finally, as I have found, only members, with one exception, were thereafter referred by Respondent in November 1972, to jobs beginning as late as November 30, 1972. I have previously rejected Respondent's defense that the Charging Party was not qualified for referral to the Riley Stoker job as a high rigger. And as noted, this defense, even if found meritorious, would not have met the allegation of the complaint that Respondent also discriminatorily refused to refer Clayton Gerard to other employers under its exclusive referral arrangement nor even to Riley Stoker for other and later boilermaker opportunities. I also rest my rejection of this defense on the absence of any showing that the Charging Party was even told that he was not being referred because of his alleged lack of qualification. Gerard's prior referrals to work of the same type likewise belie any validity in this defense.44 Further, it is clear from an examination of the collective- bargaining agreement and the implementing joint referral committee rules that the Respondent has the right to categorize applicants as boilermakers, apprentices, or helpers. It is also clear from the entire record herein that Respondent could consistently further categorize boiler- maker applicants as welders, riggers, and mechanics. However, the contract does not give Respondent the right to pick and choose among individuals in any of these categories but rather imposes upon it the duty to make selections in each category solely in the order in which the individuals have registered for employment. In short, applicants are supposed to be referred, as required, on a first in, first out basis.45 Any deviation by the Respondent from the requirement that applicants be listed in the order in which they register for referral or otherwise indicate their availability for referral may be considered, among other facts, as an indication of the discriminatory operation of the Union's exclusive hiring hall privileges, contrary to the Act.46 Here the Respondent, contrary to the requirements of its collective-bargaining agreement and implementing rules, does not maintain any lists at all, but merely keeps records in a box in no particular order and, even within the box, the records of union members are separated from records of nonmembers. Referrals are made in accordance with the discretion of the business manager, Rasmussen, or the dispatcher. I conclude that the failure to maintain lists as required by the contract and rules and the further failure to refer applicants on a first in, first out basis, as likewise required, additionally evidences Respondent's discrimina- tory operation of its exclusive referral system.47 These same facts impel me to the conclusion that Respondent has carried out its referral system in an arbitrary and capricious fashion whereby it has referred applicants not on any objective basis-although objective bases are spelled out in the contract as well as means for resolving questions as to qualifications-but rather in accordance with the desires of the business manager or dispatcher at a given time. That this has resulted in an overwhelming preference being shown to Respondent's members over nonmembers, particularly in lean times such as November 1972, and March 1973, is apparent from my findings, supra. But this conduct is directly contrary to the mandate of the Respondent under its exclusive referral system to refer applicants without regard to union membership, that is, to serve all its applicants-its constituency-equally. This duty is no different from that of an exclusive bargaining representative to represent all employees in a collective- bargaining unit in the manufacturing industry equally; that is, to provide equal representation and service to all employees in the unit without regard to union membership or other considerations. For, given the fluctuation of employment in the construction industry, the legality of prehire collective-bargaining agreements in that industry under Section 8(f) of the Act and the legality of a nondiscriminatory referral system to implement such prehire agreements, the unit for representation in the construction industry, under an exclusive referral system, necessarily includes applicants for referral.48 I accordingly conclude that Respondent's refusal to refer its nonmembers applicants on an equal basis with its member applicants violates its duty to represent its nonmember applicants on a fair and equal basis with its member applicants.49 Based upon all the foregoing, I conclude that Respon- dent, beginning November 6, 1972, discriminatorily ref- used to refer Clayton Gerard for boilermaker opportunities because he is not a union member, and that Respondent thereby violated Section 8(b)(I)(A) and 8(b)(2) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate and substantial relation to trade, traffic, and commerce among the several states and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 43 Id. 44 International Brotherhood of Electrical Workers, AFL-CIO, Local 82, 182 NLRB 59, enfd. 440 F.2d 1 184 (C.A. 6, 1971). 45 Where any question as to an applicant's qualifications arises the contract and implementing regulations further provide adequate means for resolving such questions, as previously mentioned. 46 Ironworkers Local Union No. 290 (Mid-States Steel Erection Co.), 184 NLRB 177, enfd. 443 F.2d 383 (C.A. 6, 1971). 1" It is. of course, well settled that an applicant is an employee within the meaning of the Act. Phelps Dodge Corporation v. N.L.R.B., 313 U.S. 177. 4'+ Cf. Hughes Toot Company 147 NLRB 1573. This conclusion is in my judgment particularly apt in the present case, since, I find, based on the undisputed testimony of Gerard, he pays 2-1/2 percent of his earnings to Respondent. Cf. Houston Maritime Association, Inc., 136 NLRB 1222, 1225, enfd. as modified 337 F.2d 333 (C.A. 5, 1954). BOILERMAKERS, LOCAL NO. 169 151 Y. THE REMEDY Since I have found that the Respondent engaged in certain unfair labor practices in violation of Section 8(b)(1)(A) and (2) of the Act, I will recommend that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As the discriminatory practices in the operation of the Respondent's exclusive referral system could have been precluded by Respondent's compliance with the proce- dures prescribed in the national agreement and implement- ing national and local regulations, designed in part. at least on their face, for the prevention of any discrimination in job referrals between members of Respondent and non- members, it will be recommended that Respondent shall be ordered and directed hereafter to meet all requirements in that agreement and in the implementing rules in the matter of job referrals as set forth in detail in those documents and in all succeeding collective-bargaining agreements and rules which-if they contain exclusive referral arrange- ments-must necessarily contain the same or substantially equivalent requirements if such documents are to avoid the proscriptions of the Act. More specifically, and in accordance with the national agreement and implementing rules, it will be recommended that the Respondent be required to maintain separate registers or books of records for each of the classes of applicants for employment designated in the agreement and rules. Thus, Respondent will be required to prepare and maintain a separate list, by chronological order of applicant registration, for each of the following classifica- tions-boilermakers, boilermaker helpers. and boilermaker apprentices. This means that there will be a single registration list for each classification and members and nonmembers will not be segregated thereon but nonresi- dents may be segregated on each such list consistent with the provisions of Section 8(f) of the Act and appendix B of the national agreement. This recommendation is intended to permit the boilermaker's register to be subdivided into the subclassifications of welder, rigger, and mechanic and a qualified boilermaker may register for any or all of such subclassifications. This recommendation is not intended to preclude the resolution of issues in respect to qualifications pursuant to the national agreement and the implementing rules, however, in my judgment, any dispute over qualifica- tions or other disputes over a referral matter which are alleged to be an unfair labor practice should not be deferred by the Board for disposition under the contract or the rules so long as the local rules forbid an applicant to be represented by an attorney in such dispute. It is also intended that applicants may limit the areas of Respon- dent's geographical jurisdiction in which they desire work. It will be recommended that applicants be referred from each appropriate list on a first in, first out basis consistent with appendix B, section 4, of the national agreement, subject to the other rules of the national agreement and implementing regulations thereunder such as the require- ment of availability for contact by the hall between the hours of 12:30 p.m., and 4:30 p.m., Monday through Friday and consistent with each applicant's desire as to the geographical area in which he wishes to work. It will be recommended that all exclusive referral lists be updated every 2 weeks to eliminate personnel already referred or whose deregistration is required for some lawful reason pursuant to the national agreement and the implementing rules. It is not the intention of this recommendation to preclude registration by an applicant in any manner heretofore permitted, e.g., in person, by letter, by telephone or by steward's layoff report. It is however the intention of this recommendation that Respondent be required to maintain a record of all such letters, telephone calls, or stewards' reports for 6 months or until the individual thus registered has been referred whichever occurs sooner. It will be further recommended that the Respondent he required to post all such referral registers, or that such books of record be prominently placed in plain view of applicants for their perusal in Respondent's Dearborn office or suboffices, if any, as that in Midland. It will also be recommended that Respondent maintain records of its exclusive referral operation and make them available to the Regional Director, upon request 50 And it will be recommended that the Respondent he required to follow all other provisions of the national agreement and implementing national and local rules in a manner that will assure the nondiscriminatory operation of its exclusive referral system. Finally, it will be recommended that Respondent make Clayton Gerard whole for any loss of earnings he may have suffered because he was discriminatonly denied referral for employment beginning with the Riley Stoker job on November 6, 1972, until his referral on May 3. 1973, by payment to him of the sum of money he would have earned during this period, less net earnings, if any, during such period to be computed in the manner prescribed in F. W. Woolworth company, 90 NLRB 289, with 6-percent interest thereon as required by Isis Plumbing & Heating Co., 138 NLRB 716. i'i. (OACLUSIONS OF LAW 1. Riley Stoker Corporation is engaged in commerce within the meaning of the Act. 2. Respondent. International Brotherhood of Boiler- makers, Iron Shipbuilders, Blacksmiths , Forgers and Helpers Local Lodge No. 169, AFL--CIO, is a labor organization within the meaning of the Act. 3. Respondent, by the unfair labor practices described herein, supra, has violated Section 8(b)(1)(A) and (2) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommmended Order omitted from publication.] 50 Iron%orkers Local Union No 290 supra