Teamsters Local 83 (Various Employers)

CONSTRUCTION, BLDG. MATERIALS. LOCAL 83 Construction, Building Materials & Miscellaneous Drivers, Local No. 83, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Various Employers within and outside of the Building and Construction Industry; Dooley's Building Materi- als Co. a/k/a Dooley's Block Company and V. O. Contracting Co.) and Stanley J. Matuszak. Case 28-CB-1 115 November 15, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENEL.LO, AND MURPHY On August 11, 1977, Administrative Law Judge James S. Jenson issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. 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 brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, except that the remedy is modified so that interest is to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977),' and the notice is corrected accordingly. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Construction, Building Materials & Miscellaneous Driveis, Local No. 83, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, Phoenix, Arizona, its officers, agents, and representatives, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. I See, generally, Isis Plumbing & Healing Co. 138 NLRB 716 (1962). APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had the opportunity to present evidence, the National Labor Relations Board found that we violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT in any unfair and/or discrimina- tory manner maintain, enforce, or give effect to an exclusive hiring hall arrangement or practice with Arizona Chapter, Associated General Con- tractors; Associated General Contractors, Arizo- na Building Chapter; Dooley's Building Materials Co. a/k/a Dooley's Block Company; or V. O. Contracting Co. WE WILL NOT discriminate against Stanley J. Matuszak, or any other registrant for job referral, because said registrant has engaged 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 Rela- tions Board. WE WILL NOT in any other manner restrain or coerce registrants for employment in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL operate our exclusive hiring hall and referral system in a fair and nondiscriminatory manner. WE WILL pay Stanley J. Matuszak the amount of earnings which he lost after August 23, 1976, because of our failure to refer him in a nondiscri- minatory manner, plus interest on such lost wages. CONSTRUCTION, BUILDING MATERIALS & MISCELLANEOUS DRIVERS, LOCAL No. 83, AFFILIATED WITH THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA DECISION STATEMENT OF THE CASE JAMES S. JENSON, Administrative Law Judge: This case was heard before me in Phoenix, Arizona, on February 24 233 NLRB No. 82 509 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and 25, 1977. The complaint was issued on December 27, 1976, pursuant to a charge filed on October 26, 1976, alleging violations of Section 8(b)(1)(A) and (2) of the Act in that Respondent has operated its hiring hall in a discriminatory manner with respect to registrants for referral to available employment opportunities and has discriminated against Stanley J. Matuszak for arbitrary, capricious, and invidious reasons. Respondent filed an answer denying the commission of the unfair labor practices. All parties were afforded full opportunity to appear, to introduce evidence, and to examine and cross- examine witnesses. Briefs were filed by the General Counsel and Respondent and have been carefully consid- ered. Upon the entire record in the case, and from my observation of the demeanor of the witnesses, and having considered the posthearing briefs, I make the following: FINDINGS OF FACT I. JURISDICTION The complaint alleges, Respondent admits, and I find that Arizona Chapter, Associated General Contractors; the Associated General Contractors, Arizona Building Chap- ter; Dooley's Building Materials Co. a/k/a Dooley's Block Company; and V. O. Contracting Co., a member of Arizona Chapter, Associated General Contractors, each is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Construction, Building Materials & Miscellaneous Driv- ers, Local No. 83, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. ISSUES 1. Whether Respondent has operated its hiring hall in a discriminatory manner with respect to the registration and referral of Stanley J. Matuszak. 2. Whether Respondent, in the operation of its hiring hall, has discriminated against Matuszak in such an arbitrary, capricious, and invidious manner as to have breached its duty of fair representation. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent, with statewide territorial jurisdiction, oper- ates an exclusive hiring hall from its Phoenix, Arizona, offices pursuant to collective-bargaining agreements with Associated General Contractors of America, Arizona Chapter; and Associated General Contractors of America, Arizona Building Chapter, herein the construction con- tract; and various cement block and brick plants, herein called the block industry contract. The dispatching proce- dures in both agreements are identical, and provide for the placement of applicants for employment on one of three hiring hall lists depending upon their meeting certain requirements. "A" list registrants, who have first job priority, must have been employed for a period of at least 60 days within the preceding 2 years by any employer signatory to an agreement with the Union containing the same dispatching procedures; "B" list registrants, who are entitled to dispatch upon exhaustion of the "A" list registrants, must have been employed for at least 45 days within the preceding 4 years by an employer signatory to an agreement with Respondent, or who did work of the type covered under the contract within the past 5 years and, who had been a resident of the State for the immediately preceding 2 months. The "C" list contains all other registrants. The Master Labor Agreement provides that they are entitled to referral after the "A" and "B" lists have been exhausted. Employers may request a registrant specifically by name from the "A" list, regardless of his position on the list. While the collective-bargaining agreements between Respondent and miscellaneous industries, including beer and liquor, fail to include language requiring the use of Respondent's hiring hall, in actual practice requisitions for employees are filled from qualified employees on the "C" list. If the dispatcher is unable to locate a qualified man on the "C" list, he continues to the "A" list until that list is exhausted, and then refers from the "B" list. Inasmuch as there were in excess of 500 men registered as out of work on the "A" list at times material herein, it is readily seen that placement on the "B" list afforded the least opportuni- ty for referral for employment. Prior to February 1975, preference in referrals was given to registrants present in the hiring hall. Since then, registrants have not been required to be present in the hall to receive their referrals; however, those physically present in the hall are also entitled to referral in the order of their placement on the out-of-work list. Requisitions for employ- ees are made by telephone, at which time the dispatcher completes a "work order" showing the name of the contractor, the job classification sought, the location and starting time of the job, and other pertinent information. After a qualified workman has been located on the applicable out-of-work list, a referral slip is completed and given to the registrant. Each of the lists is coded so that the dispatcher will know the types of work which a registrant is capable of performing. Stanley J. Matuszak, the Charging Party, was a member of Respondent and registered on the "A" list from 1959 to 1965 when he left Arizona. Upon his return 2 years later, he was registered on the "B" list because of his lengthy absence. However, after working for a signatory employer for a 30-day period, he was again placed on the "A" list, where he remained until September 12, 1974. With the object of establishing that officials of Respon- dent harbored animus toward Matuszak, the General Counsel sought, and was permitted over Respondent's objections, to introduce evidence concerning events that occurred more than 6 months prior to October 26, 1976, the date the charge giving rise to the instant complaint was filed. The General Counsel does not contend those early events violated the Act, but that they shed light on Respondent's purpose or motivation for its actions in 510 CONSTRUCTION, BLDG. MATERIALS, LOCAL 83 August and September 1976, and are relevant and admissible background evidence tending to establish unlawful motivation. Respondent, on the other hand, contends the pre-l10(b) evidence must be disregarded since the 10(b) conduct, standing alone, does not constitute evidence of independent unfair labor practices. Both the General Counsel and Respondent rely on Local Lodge No. 1424, International Association of Machinists, AFL-CIO [Bryan Manufacturing Co.] v. N.L.R.B., 362 U.S. 411 (1960), to support their respective positions. I have considered Bryan Manufacturing and the Board cases cited by the parties and, contrary to the reasoning advanced by Respondent, reaffirm my prior ruling admitting such evidence. Neither the courts nor the Board holds that events within the 10(b) period must be considered in a vacuum, but rather "earlier events may be utilized to shed light on the true character of matters occurring within the limitations period; and for that purpose Section 10(b) ordinarily does not bar such evidentiary use of anterior events." Bryan Manufacturing, supra. ' The record shows that in 1972 and 1973, Matuszak was an unsuccessful candidate for local union president and secretary-treasurer, respectively. In the latter election he opposed, among others, Robert Peterson who was the winner. Shortly after the election, Matuszak made applica- tion to become an assistant business manager. Peterson, however, encouraged him to apply for a position with one of the union benefit funds. While Matuszak was inter- viewed for the job, he was not successful in securing it. Contrary to the General Counsel's position, these facts fail to establish any animus against Matuszak by reason of his having run for union office in opposition to Peterson. Sometime in April 1974, Matuszak received a check from his employer, Evergreen Engineering, drawn on insufficient funds. The matter was brought to the attention of the Union and Matuszak was advised by the Union's counsel that Evergreen was not a solvent corporation and that the Union was encountering difficulty in locating any assets of the corporation. Thereafter, Matuszak obtained a default judgment against Evergreen in the justice court. Unable to collect on the judgment, on July 12, 1974, Matuszak filed another complaint with the Union against Evergreen seeking $2,863.68 as "waiting time" pay for the period between the issuance of the insufficient funds check and the date of the judgment against Evergreen, all in accordance with section A 100.9.1 of appendix A to the Master Labor Agreement. 2 On August 16, 1974, Matuszak attended a union membership meeting and criticized Business Agent Under- wood's handling of his complaint against Evergreen. On August 29 he wrote a letter to Secretary-Treasurer Peterson I See also Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers ofAmerica (Rubber CiO, Express), 204 NLRB 700 (1973). 2 Sec. A 100.9.1 provides that: "Any employee laid off or discharged and who is not paid wages due him within his regular work shift shall be entitled to eight (8) hours pay at his regular straight-time rate for each twenty-four (24) hour period or fraction part thereof elapsed time between the end of his last shift and the time he is paid in full: provided that the contractor shall not be obligated to pay off the man except during regular office hours." 3 This testimony stands unrefuted since Reeves did not appear as a witness. In this regard Respondent sought to introduce in evidence, in lieu of his testimony. an affidavit given by Reeves to a Board agent during the wherein he criticized Peterson's handling of the two Evergreen complaints. Copies of the letter were sent to the Union's general president in Washington, D.C., and the president of Teamsters Joint Council No. 71. In response, Matuszak received the following letter from Peterson dated September 11: Dear Sir and Brother: The Executive Board of Teamsters Local Union No. 83 requests your appearance before their next regular scheduled Executive Board Meeting on September 24, 1974 at 7:00 p.m. This is in regard to slanderous conduct toward a Business Agent at the General Membership Meeting on August 16, 1974. Also, a letter sent to the Secretary- Treasurer, Bob Peterson, in which statements were made to insult the integrity of Bob Peterson, Secretary- Treasurer of Teamsters Local Union No. 83, copies of which were also sent to the Joint Council No. 71 and to the International Brotherhood of Teamsters by you. On September 12, 1974, Matuszak, then on the "A" out- of-work list, received a referral to Union Rock. He was terminated after 4 hours for lack of work and returned to the hiring hall where dispatcher Gary Reeves, who had been appointed to his dispatching job by Peterson, advised Matuszak that his name was being removed from the "A" list because he hadn't worked 60 days for a signatory employer within the past 2 years and therefore wasn't entitled to "A" list registration. When Matuszak protested, Reeves replied, "Well, that is the orders I got from up front."3 His name was removed from 25th on the "A" list and placed as first on the "B" list. It appears from the record that one other employee was removed from the "A" list on the day following Matuszak's removal, and his name became second on the "B" list. The basis for his removal from the "A" list does not appear in the record. Pursuant to section 1007 of the Master Labor Agreement then in effect, Matuszak protested removal from the "A" list, and a hearing was held before an "impartial referee" selected by the Area Labor Management Committee composed of three representatives of the unions and three representatives of the contractors. The parties presented their position to the impartial referee, Constable Trejo of the South Phoenix Justice Precinct, on December 18 and 23, 1974, and on December 24 Constable Trejo issued his "opinion and decision" wherein he agreed with Respon- dent's position that Matuszak had worked insufficient days to be registered on the "A" list, and that he should be placed on the "B" list. investigation of another Board charge filed by Matuszak. The complaint herein, which issued on December 27, 1976, alleges, and Respondent admitted in its answer, that Reeves was Respondent's dispatcher and an agent from June 10, 1974, to June 2, 1975. Respondent's counsel stated during the second day of the heanng that it wasn't until that morning that an attempt had been made to get hold of Reeves. No notice was given to the General Counsel prior to the hearing that Respondent intended to offer this statement in evidence. The affidavit was rejected and placed in the rejected exhibit file. In its brief Respondent makes reference to the contents of the rejected exhibit. I reaffirm my ruling rejecting the exhibit. See Federal Rules of Evidence, Rule 804(bX5), covering exceptions to the hearsay rule in cases where the witness is unavailable. 511 DECISIONS OF NATIONAL LABOR RELATIONS BOARD By letter dated September 25, 1974, Peterson wrote the following letter to Matuszak: Dear Sir and Brother: Enclosed are copies of charges filed against you at the Regular Executive Board Meeting on September 24, 1974, in which you were requested to appear. Two separate letters were sent to you requesting your appearance; however, you declined. The charges filed against you by Brothers Charles M. Reed, George Turnbough, Terry Underwood and George Steele, for violation of the International Constitution, Article XIX, Section 6, numbers 2 and 6 read as follows: (2) Violation of the oath of loyalty to the Local Union and the International Union. (6) Abuse of fellow members or officers in the meeting hall. The charges filed against you by Brother Robert W. Peterson for violation of the International Constitution, Article XIX, Section 6, numbers 2 and 5 read as follows: (2) Violation of the oath of loyalty to the Local Union and the International Union. (5) Abuse of fellow members and officers by written or oral communication. The Executive Board of Teamsters Local Union No. 83 requests that you appear for a trial in regard to the above charges on Tuesday, October 15, 1974, at 7:30 p.m. in the Conference Room of Teamsters Local Union No. 83 at 1450 South 27th Avenue, Phoenix, Arizona. The charges appear to stem from the August 16 general membership meeting wherein Matuszak was critical of union officials because of their handling of the Evergreen Engineering complaints and Matuszak's similarly critical letter to Peterson of August 29. Pursuant to said notice, a hearing was held before Respondent's trial board on October 15. Ed Lawrence, who was later to be appointed dispatcher by Peterson, was a member of the trial board. On November 7, the trial board issued its decision unanimously finding merit to the charges against Matus- zak. On November 20, he appealed the decision, and on January 23, 1975, the joint council, which was the appellate body, sustained the appeal and remanded the proceedings to Respondent Union. By letter dated February 3, 1975, Matuszak was advised by Peterson that a rehearing would be held on February 19. On that date all charges against Matuszak were dropped. 4 Some of the charges were withdrawn, some dismissed, and others are the basis for outstanding complaints against Respondent. The first charge, in Case 28-CB-910, was filed on November 21, 1974, alleging Matuszak's removal from the "A" list because he had run against Peterson for union office and because he had filed charges against Peterson and other union officials. On February 26, 1975, Respondent was advised that the charge had been withdrawn without prejudice. On the same day, February 19, 1975, Matuszak filed with the Board the second of what was to become eight unfair labor practice charges against Respondent's hiring hall and dispatching procedures.4 On the following day, during a visit to the hiring hall, Peterson invited Matuszak into his office. While they were discussing what Matuszak referred to as his harassment, the charge which Matuszak had filed the previous day was handed to Peterson. Matuszak testified without contradiction that Peterson's response was to slam the charge down on the desk and tell Matuszak, "I am going to get you for this." Matuszak testified that despite frequent visits to Respondent's hiring hall since that date, he has not received a single referral. The record also fails to show any other individual on the "B" list has received a referral. An appraisal and analysis of the foregoing facts compels the conclusion that the Union, Peterson in particular, harbored an animus toward Matuszak, not only because Matuszak openly criticized another union representative in a general membership meeting on August 16, 1974, and Peterson in his letter of August 29, resulting in those individuals filing intra-union charges against him, but because he filed a charge against the Union with the Board on February 19, 1975, which provoked Peterson's reaction "to get you for this." In this regard, his abrupt removal from the "A" list on the day following Peterson's letter requesting his presence before the Union's executive board to answer for his criticism of union representatives gives sound basis for the inference that but for his critical remarks regarding the union officials, Matuszak would not have been removed from the "A" list.5 With this back- ground in mind, we proceed to the allegations in the instant complaint. B. Events Within the 1O(b) Period 1. Additional evidence of animus The charge herein was filed on October 26, 1976; hence, the Section 10(b) period commences on April 26, 1976.6 On May 4, a consolidated complaint was issued by the Regional Director for Region 28 pursuant to a number of charges filed by Matuszak charging Respondent, other labor organizations, and a number of employers with the maintenance and operation of an illegal hiring hall arrangement (G. C. Exh. 8). Those cases have not yet been heard. George Johnston, a witness for the General Counsel, testified that on or about June 17 or 18, he and Matuszak visited the Bechtel Power Corporation's Palo Verde nuclear generator jobsite located approximately 60 miles from Phoenix to see if the company was about to hire any drivers. On their return Johnston, accompanied by Matus- zak, told dispatcher Riley where they had been. On June 20, Johnston received a call at home from Riley advising him he had a referral and to pick it up at the hiring hall. 5 It appears that Matuszak actually may not have been entitled to "A" list registration after his return to the Phoenix area in 1967. However, neither that issue nor the factual and legal basis for Constable Trejo's finding is before me. Insofar as the instant case is concerned, Matuszak was registered on the "B" list which, because of Sec. 10(b), is not open to attack here. Brvyan Manufactunring, supra. 6 All dates hereafter are in 1976 unless otherwise stated. 512 CONSTRUCTION, BLDG. MATERIALS, LOCAL 83 Upon his arrival at the hiring hall, Riley called Johnston into one of the back offices. According to Johnston, whose testimony is not contradicted, Riley "told me that I had a referral, and he asked me about this visit out to the plant. I told him about it, and he said that I could make the Union's shit list pretty fast by accompanying Stan Matuszak. He didn't want me close to Stan for some reason. He said that he had had a lot of suits against the Union and he was a troublemaker.... That was just about it. He gave me my referral and said, 'This is a 10- year job. So keep your nose clean.' " 7 This evidence is unrefuted and clearly establishes Respondent's continued animus toward Matuszak, more recently for having exercised his lawfully protected right to utilize the Board's processes. 2. Alleged refusals to register and refer Matuszak (a) The complaint alleges that on August 23 Dispatcher Lawrence refused to refer Matuszak to an available employment opportunity. As has been established above, Matuszak had been registered as first on the "B" list since September 12, 1974, and while he protested his removal from the "A" list, Constable Trejo held on December 24, 1974, in agreement with Respondent, that his proper placement was on the "B" list. The record discloses that on August 23, Manuel Moreno, an "A" list registrant, was in the hiring hall when dispatcher Lawrence offered him a referral to work for one of the beer distributors who utilized the hiring hall.8 Moreno declined the job since he had no experience driving a beer truck. Moreno then told Matuszak about the job, and Matuszak immediately approached Lawrence and stated he would take the job. Lawrence, declining to refer him, responded, "You know that this is a C-list job." Matuszak testified he had experience working for beer distributors prior to his removal from the "A" list. Neither Moreno nor Matuszak testified regarding the name of the company. Lawrence testified that requests from beer and liquor distributors are filled by experienced registrants appearing on the "C" list and then from those with beer and liquor experience from the "A" list. Lawrence did not deny he offered a referral to Moreno. Instead, he testified the only job referral issued on August 23 was to Dave Reid, who was referred from position 82 on the "C" list as a local driver to Anderson and Burke, a beer distributor. I conclude that after Moreno declined the referral, Lawrence then went to the "C" list from which he made the referral to Reid. Thus, it is seen that Lawrence did not follow the prescribed procedure of first exhausting the "C" list before making a referral from the "A" list, but instead first offered a "C" referral to Moreno, an "A" list man, and then went to the "C" list.9 While I would not view as discriminatory a refusal to dispatch Matuszak from the "B" list to a "C" list job in circumstances where the prescribed dispatch and referral rules were consistently followed, where they are not followed as in the instant case, where it was known he was qualified and available in the hiring hall, and where the evidence clearly establishes Respondent's animus toward I Johnston was sixth on the "A" list at the time of his referral. I It has been the practice to refer beer drivers from the "C' list. Matuszak, the refusal to dispatch him on August 23 can only be viewed as discriminatory and in violation of Section 8(b)(2) and (IXA) of the Act. See, for example, Local Union No. 174, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Independent (Totem Beverages, Inc.), 226 NLRB 690 (1976); Local Union No. 121, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry (M. J. Doy'le, Inc.), 223 NLRB 1250 (1976); International Associa- tion of Bridge, Structural & Ornamental Iron Workers, Local 751, AFL-CIO (Red-E-Steel Company, Inc.), 193 NLRB 665 (1971). (b) The complaint alleges that on or about September 15, Lawrence refused to dispatch Matuszak to employment with V. O. Contracting Co. At the commencement of the hearing herein, the parties stipulated (Jt. Exh. 1) that if Joyce Demarbiex were called to testify, she would "credibly testify" as follows: Joyce Demarbiex is employed as a secretary at V. O. Contracting Co. On September 15, 1976, at 9:00 A.M., pursuant to instructions from V. O. Contracting Superintendent James Willow, she telephoned Respon- dent's hiring hall and spoke to the dispatcher, Ed Lawrence. Demarbiex identified herself and told Lawrence she was calling for V. O. Contracting to request that Respondent refer to them an individual, preferably a minority, qualified to drive a water truck at the Company's Punkin Center, Arizona project. Demarbiex told Lawrence the Company wanted the man to start tomorrow morning, September 16, 1976, and that if Lawrence could not find a minority, to send anyone who was qualified to drive a water truck. Lawrence replied okay and the conversation ended. Later the same day at 3:00 P.M. in the afternoon, Demarbiex again called Lawrence and inquired as to whether anyone would be sent out. Respondent's dispatcher Lawrence then told Demarbiex that he had not been able to get anyone. The conversation ended. The parties stipulated orally that James Willow would "credibly testify" that he: . . . is employed by V. O. Contracting Company and is a superintendent, and in September, 1976, was in charge of the company's Punkin Center, Arizona project. Because no one arrived on the job on either September 16, 17, or 20 of 1976 to fill the company's earlier September 15 request for a water truck driver, which job remained available and vacant, on the afternoon of Monday, September 20, 1976, at 4:00 p.m., James Willow telephoned Respondent's dispatch- er Ed Lawrence and told Lawrence to issue a referral to Kent Morgan. Willow had met Morgan earlier that same day about noon and as he was passing through the Punkin Center area. Kent Morgan, who was on the "A-list" at the time, was given a referral by Respondent and began work for 4 Antonio Calles testified to other times when, as an "A" list registrant, he and others on the "A" list were offered referrals to "C' list jobs 513 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. O. Contracting at the Punkin Center project the next day, September 21, 1976. In view of the stipulations, I find that Demarbiex and Willow would so testify credibly. Matuszak, whose referral history included employment as a water truck driver, was present in the hiring hall on Wednesday, September 15, Friday, September 17, and Monday, September 20. The "work order" which Lawrence made out upon receiving the referral request from V. O. is dated September 14 and indicates the employer wanted a "W.P." (water pull or water truck driver) at 7 a.m. on September 16. Elsewhere, the work order lists, in Lawrence's handwriting, the names of four men. Lawrence, in attempting to explain the V. O. referral, was inconsistent and evasive and contradicted not only his own testimony, but the stipulated facts with respect to the testimony of Demarbiex and Willow. Thus, contrary to the stipulated facts, he testified that V. 0. had requested Ken Powell by name. In accordance with the stipulation, I find that the request was for "an individual, preferably a minority, qualified to drive a water truck . . . and if Lawrence could not find a minority, to send anyone who was qualified." On the basis of these facts, I find, contrary to Lawrence's testimony, that Powell was not requested by name. Lawrence then testified that upon discovering that Powell was already working for V. O., he went down the "A" list to 528, Lloyd Morris, who turned out to be "not available." 10 Acknowl- edging that the proper procedure would have been for him to then complete running through the "A" list and go to the "B" list where Matuszak was listed as first, the record shows he waited several days and on September 17 went back to the top of the "A" list and issued a dispatch to Eddie Maya, 49th on the list. With regard to his delay until September 17 to make a further effort at fulfilling the September 14 request for an employee, the work order and Demarbiex's telephone calls to Lawrence on September 14 show that V. 0. was anxious that someone be referred to report on September 16. Further, section 1002.2 of the collective-bargaining agreement contains the usual provi- sion giving Respondent 48 hours within which to furnish an employee before an employer is permitted to secure an employee outside the hiring hall. In addition, the record reflects that there were in excess of 500 men on the out-of- work list at that time and the "A" list shows specifically that Maya desired work only in the Phoenix area, whereas the V. O. job was located approximately 60 or 70 miles from Phoenix. Moreover, despite Lawrence's denial, the credited testimony of Antonio Calles shows that Maya was intoxicated at the time he was issued a dispatch. Perhaps this fact explains why Maya didn't reject the referral on September 17. In any event, on the morning of September 20, he called Lawrence and reported he couldn't report to the V. 0. job because his car had broken down. Even then Lawrence didn't make a further attempt to dispatch anyone, and it wasn't until Willow called him on the afternoon of September 20 and requested Kent Morgan, an "A" list registrant, by name, that the requisition of September 14 was finally filled. There is no doubt that at least one qualified water truck driver, Matuszak, was available during all of that time. By Lawrence's own admission, the hiring hall and dispatch procedures required that he proceed to refer from the "B" after having exhausted the "A" list, in which event Matuszak, as first on the "B" list, would have received the V. O. referral. Lawrence's attempt to explain his reasons for not having done so did not instill confidence in his testimony. His actions in handling the V. 0. referral, and his testimony, add further to the evidence of Respondent's proclivity for operating a hiring hall outside the prescribed procedures. Further, I conclude the enmity against Matuszak, which was first exhibited in 1974 with the filing of intraunion charges against him, was next exhibited by Peterson in February 1975 when he threatened to "get" Matuszak for having filed a charge against the Union, and which appeared again in August 1976 when dispatcher Riley told Johnston that he would make Respondent's "shit list" by associating with Matuszak, was a material reason for Respondent's failure and refusal to refer Matuszak to the V. 0. job, and is an additional basis for finding a violation of Section 8(bX)()(A) and (2) of the Act. Local No. 174, Teamsters, supra, Local No. 121, Plumbers, supra; Local No. 751, Ironworkers, supra. (c) The complaint alleges that on or about September 24, 1976, Lawrence refused to dispatch Matuszak to employ- ment with Dooley's Block Company. Contractually, refer- rals to Dooley's are from the "A" list. A composite of the testimony of the witnesses and the stipulation entered into by the parties discloses that on Friday morning, September 24, Hector Torres, the yard foreman for Dooley's, called the hiring hall and requested that Lawrence refer a man qualified to do forklift work in the brickyard; that Landon Berryman, 97th on the "A" list, was in the hiring hall that morning and was referred to Dooley's; that Berryman told Matuszak, who was also present in the hiring hall, about the referral; that upon reporting, Berryman realized he didn't have the required experience for the job, and informed Torres that he wasn't qualified and that he would return to the hiring hall and turn the referral back in; that upon his return, Berryman told Matuszak he didn't have the necessary experience for the job; that Matuszak was present when Berryman returned the referral and told Lawrence that Dooley's needed an experienced man; that Matuszak picked up the referral and told Lawrence that he was experienced in block plant operations and would take the job; that Lawrence looked up from his work but didn't respond and immediately returned to his work; that had Lawrence referred to Matuszak's work history card on file in the hall, it would have shown that he was qualified and had been dispatched to block plant employers through the hiring hall in the past; that Lawrence made no further effort to fill the job; that over the weekend Dooley's learned "that there was a man in their organization named Michael Padgett who was qualified" to do the work; that Torres called Lawrence again on Monday, September 27, and asked how to "clear a man through the hiring hall" who was on a withdrawal card at that time; that Lawrence 10 The "A" list of September 13 contains the names of 558 registrants. 514 CONSTRUCTION, BLDG. MATERIALS, LOCAL 83 stated, "there would be no problem as long as the withdrawal card was not over 2 years old;" that Padgett had worked for Superlite Builders Supply from September 1974 to September 1975 when he took out his withdrawal card; that Superlite and Respondent were parties to a collective-bargaining agreement, and consequently Padgett met the 60-days-work-for-a-signatory-contractor-within-2- years requirement for registration on the "A" list; and that upon his reporting to the hiring hall the morning of September 27, Padgett's name was added to the bottom of the "A" list and he was immediately referred to Dooley's. The job referral slip shows he was requested by name. Berryman's work record on file in Respondent's hiring hall shows that at the time of his dispatch from the "A" list on September 24, he had not worked the required 60 days within the past 2 years entitling him to registration on the "A" list, thus tending to support the General Counsel's contention that the dispatch and hiring hall procedures are not uniformly applied to all registrants. In this regard, the General Counsel points to the case of Antonio Calles, who had worked but I day within the prior 2 years for a signatory employer, yet whose name was retained on the "A" list for an undisclosed period of time, ostensibly because he had filed an action with the EEOC to prevent its removal and one of Respondent's attorneys had advised the Union against removal of his name from the "A" list. It was removed, however, on December i, 1976. Thus, while Calles' name appears to have been improperly retained on the "A" list, it is clear that Respondent sought to remove it and its retention was obviously due to the pending EEOC action. Accordingly, I attach it no significance insofar as showing an unlawful hiring hall practice. Remaining, however, is the fact that Berryman, although clearly not eligible for "A" list registration, was retained in a comparatively high position on the "A" list, within the top 20 percent, and even though not qualified, was the recipient of the Dooley referral. The fact that Lawrence then failed to refer anyone else from the "A" list to the Dooley job lends itself to the presumption that he exhausted the "A" list, and that Matuszak, present in the hiring hall and known by Respondent to be qualified for the job and to head the "B" list, should have been referred. Given the fact that it was Lawrence's job to fill referral requests, that work was slow in August and September and as a consequence there were a lot of men listed on the out- of-work list, I cannot accept as credible his testimonial excuses for failing to make a further effort, that the matter either slipped his mind or that it "might" have slipped his mind. Given the hostility exhibited toward Matuszak by Respondent's agents, I conclude the failure to refer him to Dooley's job was discriminatory and in violation of Section 8(b)(2) and (1)(A) of the Act. Local No. 174, Teamsters, supra; Local No. 121, Plumbers, supra; Local No. 751, Ironworkers, supra. (d) Paragraph 14(a) of the complaint alleges that since on or about August 1, Respondent has refused to permit Matuszak to register on the "A" list, allegedly because he hadn't been employed for at least 60 days by a signatory it Miranda Fuel Company, Inc., 140 NLRB 181 (1962), enforcement denied 326 F.2d 172 (C.A. 2, 1963) contractor, while permitting others who lacked the 60-day employment requirement to so register. Matuszak's removal from the "A" list on September 12, 1974, is not subject to attack in this proceeding. Bryan Manufacturing, supra. Hence, for the purposes of this case, he was properly registered on the "B" list on April 26, 1976, the 10(b) cutoff date. It has not been shown that he has worked the contractually required 60 days for a signatory employer within the past 2 years which would entitle him to "A" list registration within the 10(b) period, nor has it been shown he was entitled to "A" list registration at the time of the hearing herein unless by virtue of loss of employment opportunities due to Respondent's discrimi- nation against him as found herein. The General Counsel appears to argue in his brief, however, that the presence on the "A" list of Berryman and Calles and the dispatch of Padgett show that individuals or members not formerly employed for a period of at least 60 days by a signatory contractor were permitted to register on the "A" list. While the evidence indeed shows that Berryman was not eligible for "A" list registration at the time he was referred to Dooley's, this indicates only that his name was not removed from the list in accordance with the hiring hall procedures, not that he was permitted to register when he was not qualified as alleged in the complaint. The same principle applies to Calles. Moreover, steps were taken to remove the latter's name from the "A" list. Insofar as Padgett's case is concerned, the parties stipulated he had worked for a signatory employer from September 1974 through September 1975. Whether or not he was on withdrawal on September 27 is of no impor- tance. Having fulfilled the requirement for "A" list registration, he was entitled to "A" list registration, was so registered, and was referred in accordance with a specific request from Dooley's on that date. Therefore, I recom- mend dismissal of this allegation. Hence, Matuszak's placement on the appropriate registration list should be determined at the compliance stage of this proceeding as set forth in the remedy section hereafter. Citing the Miranda doctrine," the General Counsel contends all of the foregoing conduct directed against Matuszak was for arbitrary, capricious and invidious reasons, thereby violating Respondent's duty of fair representation. As the Supreme Court stated in Vaca v. Sipes, 386 U.S. 171, 177, 190 (1967), "It is now well established that, as the exclusive bargaining representative of the employees . . . the Union [has] a statutory duty fairly to represent all of those employees," this duty "includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct .... A breach of the statutory duty of fair representation occurs only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory or in bad faith." I find that Respondent has failed to accord Matuszak the fair and impartial treatment to which he and all other members and applicants for employment are lawfully entitled. Accordingly, I further find that Respon- 515 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent's agents failed to fulfill the Union's statutory duty of fair representation when, for arbitrary, capricious, and invidious reasons, it failed and refused to refer Matuszak to the jobs outlined above, which conduct violates Section 8(b)(l)(A) and (2) of the Act. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section IV, above, occurring in connection with the operations of Arizona Chapter, Associated General Contractors; Associ- ated General Contractors, Arizona Building Chapter; Dooley's Building Materials Co. a/k/a Dooley's Block Company; and V. O. Contracting Co., as described in section I, above, have a close, intimate, and substantial relationship 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. Vl. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent discriminated against Matuszak by refusing to refer him to jobs on August 23, September 15, and September 24, it will be recommended that Respondent be required to make Matuszak 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 August 23, absent such discrimination, less his net earnings elsewhere during said period. 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 (1962). It is further recommended that Matuszak be credited, for the purposes of placement on the "A" list, with those days he would have worked for signatory employers but for Respondent's discrimination against him as found herein, and that Respondent notify Matuszak in writing that use of the Union's referral system will be available to him on an equal and nondiscriminatory basis with other employees and applicants. It is also recommended that Respondent make available to the Board, on request, all hiring hall and other records to facilitate checking the amount of backpay due. In view of the nature of Respondent's unfair labor practices found herein, I shall recommend that Respondent cease and desist from infringing in any other manner on the rights of employees or applicants for employment guaranteed by Section 7 of the Act. As the Board held in Local No. 78, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Murray Walter, Inc.), 223 NLRB 733 (1976), "A 'broad' order is appropriate in situations such as this where Respondent's unfair labor practice is 12 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board. the findings. conclusions, and recommended Order herein shall, as provided in Sec serious in nature and strikes at the very heart of the rights intended to be protected by the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941)." See also Local Union No. 77 of International Brotherhood of Painters and Allied Trades, AFL-CIO (Colorite, Inc.), 222 NLRB 607 (1976). Upon the basis of the foregoing findings of fact, and the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW I. Arizona Chapter, Associated General Contractors; Associated General Contractors, Arizona Building Ctap- ter; Dooley's Building Materials Co. a/k/a Dooley's Block Company; and V. O. Contracting Co., each is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Construction, Building Materials & Miscellaneous Drivers, Local No. 83, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By failing and refusing to refer Matuszak for employment with Anderson & Burke, V. O. Contracting Company and Dooley's Building Materials Co. a/k/a Dooley's Block Company, thereby causing said employers to discriminate against Matuszak in violation of Section 8(a)(3) of the Act, Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(b)(l)(A) and (2) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 12 The Respondent, Construction, Building Materials & Miscellaneous Drivers, Local No. 83, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Phoenix, Arizona, its officers, agents, and representatives, shall: I. Cease and desist from: (a) Discriminating against Stanley J. Matuszak, or any other member of Respondent, in the matter of referral to jobs because Matuszak, or any other member of Respon- dent, has engaged in concerted 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 members, to the joint council and to the International Union with which Respondent is affiliated, regarding Respondent's practices over the handling of complaints by Respondent's members. (b) In an unfair and/or discriminatory manner maintain- ing, enforcing, or otherwise giving effect to an exclusive hiring arrangement or practice with Arizona Chapter, Associated General Contractors; Associated General 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. 516 CONSTRUCTION, BLDG. MATERIALS, LOCAL 83 Contractors, Arizona Building Chapter; Dooley's Building Materials Co. a/k/a Dooley's Block Company; and V. O. Contracting Co. (c) In any other manner restraining or coercing employ- ees or applicants for employment in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed and found necessary to effectuate the policies of the Act: (a) Make whole Stanley J. Matuszak for any loss of earnings suffered by him since August 23, by reason of Respondent's discrimination against him as is herein found, less his net earnings in that period, in the manner set forth in the section hereof entitled "The Remedy." (b) Credit Matuszak for the purposes of placement on the "A" referral list with those days he would have worked for signatory employers on and after August 23, but for Respondent's discrimination against him. (c) Operate Respondent's exclusive hiring hall and referral system in a nondiscriminatory manner. 13 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 (d) Post at its business office and meeting place or places copies of the attached notice marked "Appendix. " 3 Copies of said notice, on forms provided by the Regional Director for Region 28, after being signed by an authorized representative, shall be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to it- members are customarily posted. Reasonable steps shall be taken to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 28, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the complaint be, and it hereby is, dismissed insofar as it alleges violations of the Act not found herein, specifically paragraph 14(a). Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 517