Int'l Union of Operating Engineers, Loc. 132

386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union of Operating Engineers, Local 132, AFL-CIO (Stone and Webster Engineering Corporation and Chapman Plumbing & Heating) and Joseph Cook. Case 6-CB-2782 January 30, 1975 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On October 21, 1974 , 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 cross-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 briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. Respondent excepts to the Administrative Law Judge's conclusion that it violated Section 8 (b)(1)(A) of the Act by failing to refer the Charging Party, Joseph Cook, for employment on August 10, 1973. In our view, Respondent's exception is meritorious. From September 1970 to April 17, 1973,1 Joseph Cook, a member of Respondent since 1958, worked on three jobs which he had obtained without registering on Respondent's "out-of-work" list. The last of these jobs was at the Harrison Power Station. When it neared completion, Cook agreed to take a new assignment with the same employer, Union Boiler Company, at another location. However, Respondent's business agent, Hardman Wilson, learned of Cook's expected transfer to the new project site and informed an employee at the new site that Cook "had jumped his last job on me and I'll stand a one-man picket line before I let him come down there and do it again." Having been informed of Wilson's intentions, the Union Boiler Company officials declined to request that Respondent refer Cook and instead accepted the referral of another individual who had been on the out-of-work list for 5 months. Cook completed his work at the Harrison Power Plant on April 17. On April 18 , Cook's wife telephoned Respondent's office in Clarksburg, West Virginia, and registered Cook on the out-of-work list, specifying that Cook desired assignment as a hoist operator. Respondent's office secretary, Sharon Held, tele- phoned Cook on May 30 to offer him a referral as a grade-all operator at Gaycon Company. Cook turned down the offer, saying he had just been released from the hospital. Under Respondent's hiring hall agree- ment, Cook's refusal caused him to drop to the bottom of the list, at least with respect to referral for grade-all operator jobs. But this still accorded Cook a registration effective that date. On July 11, Respond- ent telephoned Cook with another job referral, but no one answered Cook's telephone on that occasion. On August 10, 1973, Respondent dispatched John Radcliff to operate a "grader" for the Elkins Black Rock Company; Radcliff had registered on the out- of-work list on August 6. On August 29, a week after Cook filed the charge in this proceeding, Respondent once again telephoned Cook about a job referral, but was unable to reach him. On the same day, Mrs. Cook telephoned the hall and made an appointment to see Respondent's business agent, Wilson, on August 30. During the meeting, the Cooks and Wilson discussed Wilson's claim that Cook had bypassed the hiring hall in obtaining prior employment. Wilson said: Cook, all I want you to do is when you work here just be like the rest of the men and I'll treat you like the rest of the men but I don't owe anybody any special favors that go out and pick their own jobs and work behind the hall because we've got a hiring list and a referral list. All I'm saying Joe is this, I don't have anything personal against you and I'm not trying to starve you, all I want you to do is to come in here and I'll treat you like anybody else and I'll offer you any job that comes up, now that's all I can tell you. At another point in the conversation, Wilson protested that he never told anyone that he would not refer Cook through the Union's hiring hall, stating, "that's a lie, I never said anything of the kind. I said you would get on the list and take your turn with the rest of the men and that's the statement I made." On September 1, after a referral by Respondent which he accepted, Cook went to work operating a grade-all at Marble Cliff Quarries. The Administrative Law Judge reasoned that Wilson's statement that he would set up a one-man picket if Cook jumped jobs from the Harrison Station project to a new project demonstrated an I All dates refer to 1973 unless otherwise noted 216 NLRB No. 76 INTL UNION OF OPERATING ENGINEERS, LOC. 132 387 animosity against Cook which, as indicated by Wilson's remarks at the meeting on August 30, was maintained at least until the end of August 1973. He found that this animosity, an irrelevant considera- tion, motivated Respondent on August 10, when Cook was not referred to a grader's job. We disagree with this analysis of the facts. Wilson's statements on both occasions disclose a resentment against Cook for circumventing the hiring hall, but they do not establish any intention on Wilson's part to treat Cook differently than anybody else if he registered for work at the hiring hall. This is what Wilson told Cook on August 30, and nothing different was expressed or implied by him in April. Indeed, once Cook was properly registered, Re- spondent offered him a referral in May and tned to reach him with another referral in July, all before August 10, which the Administrative Law Judge found to be the date when Respondent discriminated against Cook. As no intervening incident or reason is shown which would evince any change in Respond- ent's attitude toward Cook before August 10, or thereafter, we cannot accept the Administrative Law Judge's conclusion that Respondent was disposed to discriminate against Cook at all times material herein. Nor are we persuaded that, on August 10, Cook was bypassed in favor of Radcliff for ajob which he was able and willing to perform, to Respondent's knowledge. Thejob offered Radcliff was to operate a grader. The Administrative Law Judge made no distinction between the classification of grade-all operator and grader and found that Cook, who was qualified to operate a grade-all, should have been dispatched to the grader's job instead of Radcliff. But his failure to distinguish between these classifica- tions with respect to Cook's availability appears to be without justification. Cook testified that he could operate a grade-all, a hoist, a cherry picker, compres- sors, or highlifts. In his August conversation with Wilson, he stated that he could not operate tractor- type equipment since an operation on his back. He testified at the hearing that his doctor had instructed him to stay off bulldozers and to work on stationary jobs. Cook further stated that, between 1968 and April 1973, he "worked no highway jobs." Wilson testified that bulldozers and graders are equipment used on road work. In view of these facts, we do not believe that a finding is warranted that, as of August 10, 1973, Cook was available for grader work and that Respondent, aware of that fact, denied him such work. On the basis of all the foregoing, we are not satisfied that the General Counsel has established that Respondent failed in its duty of fair and equal representation to Cook by failing to dispatch him to a grader's job on August 10, 1973. Accordingly, we shall dismiss the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE JOHN F. CORBLEY, Administrative Law Judge : A heanng was held in this case on June 19, 1974, at Fairmont, West Virginia, pursuant to a charge filed by Joseph Cook, an individual (hereinafter sometimes referred to as Cook or the Charging Party), on August 22, 1973, and served by registered mail on Respondent on the same day, an amended charge filed by Cook on August 28, 1973, which was served on Respondent on September 6, 1973, and a complaint and notice of heanng issued by the Regional Director for Region 6 of the National Labor Relations Board on April 29, 1974, which was also thereafter duly served on Respondent . The complaint alleges that Re- spondent during the penod April 18, 1973, to on or about August 30, 1973, failed to refer the Charging Party for employment with various employers with whom Respond- ent has an exclusive hiring hall arrangement ; that such failure was based on arbitrary, irrelevant, and invidious considerations; and that, by failing to refer the Charging Party based on such considerations , Respondent acted in breach of its duty of fair representation to the Charging Party, thereby violating Section 8(b)(1)(A) of the Act. In its answer to the complaint , which was amended at the heanng, Respondent denied the commission of any unfair labor practices. For reasons which appear hereinafter I find and conclude that Respondent has violated Section 8 (b)(1)(A) of the Act by failing to refer the Charging Party for employment during a part of the period covered by the complaint. At the hearing the General Counsel and 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 parties waived oral argument at the conclusion of the heanng. Briefs have subsequently been received from the General Counsel and Respondent and have been considered. 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record 1 in this case, including the briefs, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYERS INVOLVED Respondent maintains a collective-bargaining agreement with certain General Contractor Associations containing an exclusive hiring hall whereunder Respondent refers applicants to contractors in the West Virginia area. Two such contractors are Stone and Webster Engineering Corporation (hereinafter Stone) and Chapman Plumbing & Heating (hereinafter Chapman)? Stone, a Massachusetts corporation with its principal office located in Boston, Massachusetts, is engaged as a building and construction contractor in the business of industrial and power plant construction . During the 12- month period preceding the issuance of the complaint, Stone purchased and received goods and materials valued in excess of $50,000 from points directly outside the State of West Virginia for use within the State of West Virginia. Chapman, a Pennsylvania corporation with its principal office located in Washington, Pennsylvania, is engaged in the general construction business . During the 12 month period preceding the issuance of the complaint , Chapman in the course and conduct of its business operations has performed services valued in excess of $50,000 for other enterprises, including, inter alia, the General State Authori- ty of Pennsylvania, Brockway Glass Co., and the Pennsyl- vania State Board of Higher Education, located in the Commonwealth of Pennsylvania, which other enterprises annually receive goods , materials, and services valued in excess of $50,000 from points directly outside the Com- monwealth of Pennsylvania. The complaint alleges , the answer as amended admits, and I find that Stone and Chapman are now, and have been at all times material herein, employers engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. II. RESPONDENT'S LABOR ORGANIZATIONAL STATUS The complaint alleges, the answer admits, and I find that Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. BACKGROUND AND SEQUENCE OF EVENTS A. Respondent's Office in Clarksburg, West Virginia Respondent operates an office in Clarksburg, West Virginia, at which it maintains an "out-of-work" list of registrants for referral to construction work involving heavy equipment, highway construction , and building I Certain errors in the record have been noted and corrected Pursuant to arrangements made on the record at the hearing General Counsel's Exh . 6A (transcript of a tape, which is General Counsel's Exh. 4) and 6B (cover letter explaining that the accuracy of 6A has been stipulated by the parties) and Respondent's Exh. 2 (the bylaws of Respondent) were forwarded to me at my office in Washington, D C., by the General Counsel trades in the nearby geographical area. At this office are located two of Respondent's business agents, Hardman Wilson and Ed Wine, who are assisted by a secretary, Mrs. Sharon Held. The complaint alleges, the answer admits, and I find that Hardman Wilson and Ed Wine, at all times material herein, were Respondent's business agents and were agents of Respondent, acting on its behalf, within the meaning of Section 2(13) of the Act. B. The Background of the Charging Party,' His Unemployment During the Spring and Summer of 1973; The Aftermath Joseph Cook, the Charging Party, has been a member of the Respondent since 1958 . His employment history during the 5 years preceding the alleged unfair labor practices was as follows: Mitchell Power Plant (Ft. Martin), Oct. 8, 1968 - Dec. 1969; McKinney Drilling Company (Harrison Power Station), June 1970 - Sept. 1970; Union Boiler Co. (Amos Power Plant), Sept. 1970 - Aug. 5, 1971; Union Boiler Co. (Ft. Martin), Oct. 1971 - Dec. 1971; Union Boiler Co. (Harrison Power Station), Dec. 1971 - Apr. 17, 1973. Cook obtained the last three of these jobs without registering on Respondent's "out-of-work" list. During most of the foregoing 5-year period Cook worked as a hoist operator. However, he also operates a grader or grade-all, as will appear. As the last Harrison Power Station job was nearing completion, Cook was approached by two Union Boiler officials, Boswell and Stevenson, who asked Cook if he would be willing to take a job operating a hoist on the night shift at Fort Martin, after leaving Harrison Power Station. Cook agreed to take this new assignment if proper referral arrangements would be made with Respondent. The Union Boiler officials agreed that they would make these arrangements for Cook. Sometime thereafter Business Agent Wilson was visiting the Fort Martin site and learned from Moyler, an equipment operator there, that Cook's transfer to the Fort Martin project was expected. Wilson told Moyler that Cook was already working and could not come to Fort Martin until his current job was finished. Wilson further told Moyler that Cook "had jumped his last job on me" (apparently referring to Cook's obtaining his previous several jobs without first going on the "out-of-work" list) and that he, Wilson, would establish a one-man picket line before he would permit Cook to come to Fort Martin and "do it again." Boswell and Stevenson learned of Wilson's confrontation with Moyler and told Cook that they didn't think Cook would be able to take the new Fort Martin assignment because Wilson had been at that project and stated there that he would establish a one-man picket line to keep Cook off the job. and counsel for Respondent, respectively. These exhibits are hereby received into evidence, as is the instant stipulation signed by both counsel which appears at p. 39 of the General Counsel's Exh . 6B. These exhibits have also been marked by me as received in evidence The record is, accordingly, hereby closed. E See G C. Exh. 5. INTL. UNION OF OPERATING ENGINEERS, LOC 132 389 Union Boiler did not request Respondent to refer Cook to the Fort Martin job.3 When a referral request was made, another individual who had been on the "out-of-work" list for 5 months was instead referred to this job at Fort Martin. Cook completed his work at the Harrison Power project on April 17, 1973. Mrs Cook, Cook's wife, telephoned Respondent's office at Clarksburg on April 18, 1973, and requested that he be registered at that time on Respond- ent's "out-of-work" list for a hoist operator assignment. In May 1973, Cook spent some time in the hospital to obtain treatments which included shots in his arm. He was released from the hospital on May 28, 1973. On May 30, 1973, Respondent's Clarksburg office was given a referral request from the Gaycon Company for a grader operator. The office secretary, Held, then contacted Wilson, who was out of town, and asked Wilson who should be referred for this job. Wilson suggested the Charging Party, Cook. Held then telephoned Cook who answered the telephone and identified himself as Joe Cook. After Held told Cook Held was calling from Respondent, Held described the job to which Held intended to refer Cook. Cook turned down this offer, however, noting that he had just gotten out of the hospital.4 Under Respondent's hiring hall agreement this job refusal caused Cook to drop to the bottom of the list at least with respect to referral for grader operator jobs, but this, I conclude, would also accord him a reregistration effective that date.5 Shortly after June 1, 1973, Cook installed a telephone answering device on his home telephone. This device, when turned on, advises a caller that the Cooks are out, asks if the caller desires to leave a message, and, if not, refers the caller to another telephone number. On July 11, 1974, Respondent telephoned Cook to refer Cook to another job. No one answered Cook's telephone on this occasion .6 On August 22, 1973, as previously noted, Cook filed the charge in this proceeding. On or about August 29, 1973, Held telephoned Cook but was unable to reach him. On that same date Mrs. Cook telephoned the hall and spoke to Held and eventually also spoke to Wilson. As the result of Mrs. Cook's talking to Wilson, Mr. and Mrs. Cook went to see Wilson at Respondent's office in Clarksburg on August 30, 1973. 3 According to the credible testimony of Wilson in this regard 4 These findings are based on the credible testimony of Held in this regard , which testimony is supported by a bill from the telephone company charging Respondent for a completed call to Cook's telephone number on that date Cook confirmed that he had been released from the hospital on May 28, 1973, but denied that he had received the call I do not credit this denial nor the testimony of his wife that she and Cook were not home at the time. Cook was very nervous when he testified frequently shaking his head and blinking his eyes Mrs Cook, while calmer, was unconvincing in her manner in testifying on this point ; that is, the tone of her voice changed when she stated on cross-examination that she and Cook were out of town on that date This latter testimony added to her testimony on direct examination which was merely that neither was at home at the time. I also found Cook evasive when he was asked whether any of his children, who live nearby, ever answer his telephone. I also note that the testimony of Cook and Mrs. Cook disagree in respect to a later phone call from Respondent in February 1974. Held impressed me as being a sincere, self- confident witness who testified in a generally reliable manner, with one During this meeting on August 30, 1973, Wilson engaged in a lengthy discussion with the Cooks about Wilson's claim that Cook had obtained his last three jobs without going through Respondent's hiring hall. Wilson made it clear to the Cooks that he held this claimed dereliction against the Charging Party (more will be said about this matter hereinafter). The discussion also dealt with the efforts of Respondent to reach Cook over the summer of 1973. The secretary, Held, participated in this aspect of the discussion. Unbeknownst to Wilson, Mrs. Cook recorded about 45 minutes of this discussion, using a recording device which was in her purse. After the tape on this device had run out, Wilson told the Cooks, inter alia, that he had not tried to call Cook for the preceding 50 to 60 days. In another part of the discussion, about which more will also be said hereinafter, Cook told Wilson that he, Cook, would be willing to take an assignment as a grader or grade-all operator. On September 1, 1973, after referral by Respondent, Cook went to work as a grader or grade-all operator at Marble Cliffs. Cook remained with that Company until the closing days of December 1973. He had not worked since at the time of the hearing, although Respondent has offered him job referrals on several occasions in the late winter months and the spring of 1974. Concluding Findings The theory of the General Counsel's case is that Respondent breached its duty of fair representation to the Charging Party as a registrant for referral to employment through the Union's exclusive hiring hail.7 This breach, the General Counsel argues, grew out of Respondent's failure to refer Cook for employment during the period April 18, 1973, to on or about August 30, 1973 and was based, inter aka, on irrelevant considerations including Respondent's claim that Cook had bypassed the hiring hall in obtaining employment at the three jobs he held prior to April 18, 1973. In its brief, Respondent, in essence, acknowledges the requirement to operate its hiring hall in a manner whereby all applicants are treated equally and fairly but nonetheless advances two contentions - first, that there is no evidence that Respondent was disposed to treat Cook differently from its other members or registrants and, secondly, in any event, there is no showing that it did, in fact, discriminate against him by referring later registrants than he to jobs exception which will appear Further, while Cook has a son, the son was not known to be a member of Respondent nor is there any showing that the son had just been released from the hospital 5 See G C Exh. 2, art V, sec 17. B This finding is based on the credible testimony of Held in this regard and is confirmed by an entry on Respondent's referral list. While this call was made after the answering device was attached to Cook's phone it appears from a remark by Held (made at a meeting between Wilson and the Cooks on August 30, 1973) concerning a call placed by Held late in August 1973 that Held did not respond to an answering device unless told to do so The other business agent, Wine, testified that he does not "talk to recordings " The date of this call is also confirmed by a statement made by Wilson to the Cooks on August 30, 1973, that he, Wilson, had not called Cook in 50-60 days 7 Since this arrangement does not discriminate based on union membership Cook's membership in the Union would not presumably be a factor However, he was a union member at all times pertinent hereto 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (for which he was qualified) prior to the time it referred him .8 I find no merit in the first contention and while I find some merit in the second contention, I nonetheless conclude that Respondent did discriminate against Cook for at least part of the period specified in the complaint. That Respondent through its agent, Wilson, maintained an animosity against Cook based on Wilson's belief that Cook had been circumventing the hiring hall is clear from Wilson's admitted threat to walk a one-man picket line, if Cook were transferred to the Fort Martin project in April 1973. This threat, as Wilson admittedly explained it at the time, was made because, according to Wilson, Cook "jumped the last job on me and I'll stand a one man picket line before I let him come down there and do it again." Wilson also maintained this feeling towards Cook at least during the succeeding months until the end of August 1973. Indeed Wilson made such feelings clear at the meeting between the Cooks and himself at the Union's office in Clarksburg on August 30, 1973. Thus, Wilson told Cook at this meeting that: "Now what started this whole thing. When you started jumping jobs on me ...." There followed a lengthy discussion during this meeting of Wilson's and Cook's versions of how Cook had obtained his three previous jobs. In Wilson's version of these matters, Wilson indicated that he believed that Cook had bypassed the Union's hiring hall. Respondent, however, points to another remark by Wilson during this conversation which, according to Respondent, suggests a different feeling of Wilson toward Cook. This remark by Wilson at the meeting was: All I'm saying, Joe, is this, I don't have anything personal against you and I'm not trying to starve you, all I want you to do is to come in here and I'll treat you like anybody else and I'll offer you any job that comes up, now that's all I can tell you. Respondent points this comment out to show Wilson's desire to treat all members and applicants fairly and equally. A yet further implication flowing from Respond- ent's point here is that all Wilson sought to do was to have Cook register at the hall like other applicants. Unlike Respondent, I do not believe this comment by Wilson exculpates him nor relieves him of liability for his actions towards Cook, which will be discussed, nor his other comments to Cook, previously referred to, on this same occasion. For the instant comment must be taken in the context in which it was made. That context was that Cook had registered at the hall and had been on the referral list since April 18, 1973. Since Cook was therefore complying with the hall's requirements like any other 8 Respondent does not urge that its contractual hiring hall agreement authorized it to discipline Cook for his claimed bypassing of the hiring hall. While such conduct would be a violation of the Union's bylaws (Resp Exh. 2), the hiring hall arrangement specifically prescribes that referral shall not in any way be affected by union bylaws (G.C. Exh. 2, art V, sec. 1.4) 9 A similar statement relied on by Respondent to show Wilson 's lack of bias towards Cook meets the same fate on analysis in context. This statement - that Wilson owed no "special favors" to individuals who "work behind the hall" - does not help Respondent's case because Cook was not asking for any "special favors." He merely sought referral from the "out-of-work" list on which he had been registered for 4 1/2 months and registrant when the instant remark was made to him, the inescapable inference of the remark is that the disparate treatment accorded Cook grew not from his status at the time but rather from his claimed failure to follow the hall's procedures like other registrants in times past .9 I, accordingly, conclude that Respondent through Wilson was disposed to discriminate against Cook at all times material herein, based on a consideration irrelevant to its duty to represent him fairly and equally. I further conclude that this irrelevant consideration was Wilson's claim that Cook had not been using the hiring hall's "but- of-work" list to obtain pnorjobs.'° There is, however, some merit to Respondent's conten- tion that the record does not show that it failed to refer Cook to jobs for which he was qualified - at least for a part of the period in question here. In order to understand this issue two matters require some explanation - first, the equipment Cook was qualified to operate and Respondent's knowledge of such qualifications and, secondly, the state of the evidence in regard to referrals of other applicants ahead of Cook. At the hearing Cook claimed that he operates hoists, grade-alts, compressors, and "highlifts." However, when his wife called in to register him on the "out-of-work" list she registered him only for the assignment of hoist operator. Since Respondent admittedly sought on May 30, 1973, to refer Cook to a job operating a grader or grade-all, it is obvious that Respondent was also aware of Cook's qualifications in this regard.1' But there is no showing that Respondent's officials at the Clarksburg office were aware that Cook is qualified, as he claims, to run compressors or highlifts.12 As previously noted, most of his employment during the period 1968 to 1973 was in operating hoists. While the record shows that a number of employment applicants, who registered on Respondent's "out-of-work" list after Cook did, were referred for work ahead of Cook in the months of May and June, the record does not show what equipment they were referred to operate. The only showing of specific equipment involved in any job referrals is in the month of August 1973.13 With this background, I will now determine whether, when, and how Respondent treated Cook differently from other applicants who sought referral during the period in question here. As I have previously found, the failure of Cook to transfer from the hoist job at the Harrison Power project to another hoist job with the same employer at Fort Martin on April 18, 1973, was due at least in substantial part to Wilson's threat to mount a picket line at the latter site if Cook avoided Respondent's hiring hall in obtaining that job. I find nothing unlawful in Wilson's action in this instance, however, because Respondent was within its from which other applicants had been referred for work ahead of him, as will appear. 10 The irrelevance of this consideration is established on the face of the hiring hall agreement itself. See fn 8, supra 11 Contrary to the testimony of Wilson, which I discredit, that Wilson's first knowledge that Cook could operate a grade-all occurred when Cook so informed Wilson at their meeting of August 30, 1973. 12 It is not clear whether a "highlift" is a type of loader To the extent that it may be, I note that Cook told Wilson on August 30, 1973, that he, Cook, did not desire to operate a loader because of his back condition. 13 G.C. Exh. 5 INTL. UNION OF OPERATING ENGINEERS, LOC. 132 391 rights to enforce the registration provisions of its nondiscri- minatory hiring hall agreement.14 And Cook was not registered at that time.15 Insofar as the August referrals are concerned, two hoist operators, Strickler and Isner, were admittedly referred ahead of Cook. However both were in fact on the "out-of- work" list (albeit registered after Cook), had previously worked for the same employer, and that employer had requested their services again. Inasmuch as such out-of- order referrals, based on a prior employer's request, are specifically authorized by the hiring hall agreement, I conclude that these referrals of Strickler and Isner ahead of Cook were not improper. A different picture emerges from the referral of grader or grade-all operators during this period. Thus, the first such operator shown to have been referred from Respondent's hall for such an assignment on a date certain in August 1973 was John Radcliff, who was referred out to operate a grader on August 10, 1973. But Radcliff had only been registered on the "out-of-work" list since August 6, 1973, long after Cook's registration on April 18 of the same year. In view of Cook's earlier registration and Respondent's knowledge (since at least May 30, 1973) that Cook was qualified to operate a grade-all, it follows that Cook should have been referred to this assignment ahead of Radcliff on August 10, 1973.16 Despite Cook's prior right to such a referral, however, I find that no effort was made by Respondent to contact him for this assignment. I reach this conclusion on the basis of Wilson's statement to Cook on August 30, 1973, that he had not attempted to reach Cook for the preceding 50 to 60 days and the further fact that Respondent's records reflect no entry of any call being made to Cook during the period July I I to August 29, 1973. Against the background of Wilson's long-standing animosity towards Cook (based on Wilson's claim that Cook had bypassed the hiring hall in obtaining prior employment) I conclude that Respondent's failure to seek Cook's referral to the grade-all assignment on August 10, 1973, was founded on Wilson's resentment against Cook in this regard. While bypassing of the hiring hall on the part of Cook, if true, might have been an infraction of Respondent's union bylaws, bylaw infractions are specifi- cally excluded under the hiring hall agreement as a basis to deny referral of a registered applicant. Thus, for our purposes here, any such prior infraction, whether claimed or even proved, is a consideration which is irrelevant to Cook's right to be referred from the hall. I therefore further 14 Local 357, IBT [Las Angeles-Seattle Motor Express] v. N LR.B., 365 U.S. 667 (1961). 15 While there is a suggestion at several places in the record of an arrangement whereby an operator may be transferred to another job with the same employer if the employer so requests Respondent, no such request was made of Respondent to permit Cook to work at the Fort Martin job, an omission I have already noted earher in this decision. 16 Respondent cannot claim that Cook was required - to register specifically as a grade-all operator, inasmuch as its records in August 1973 show numerous referrals of applicants who indicated no equipment preference at all when they registered for referral. 17 In the circumstances, I do not therefore credit any self-serving testimony of Wilson, Wine, or Held that none of them were disposed to dtscnnunate against Cook conclude that Respondent, by not seeking to refer Cook on August 10, 1973, for the reason I have found,17 thereby failed in its duty of fair and equal representation to Cook and violated Section 8(b)(1)(A) of the Act.18 I find, however, that no such violation has been proved in connection with Respondent's treatment of Cook prior to that date.19 IV. THE REMEDY Having found that Respondent has violated Section 8(b)(1)(A) of the Act by failing to provide equal representa- tion to Cook in the matter of job referrals - such failure being based on irrelevant considerations - I shall recommend a remedial order requiring Respondent to cease and desist therefrom and further requiring Respond- ent to pay Cook a sum of money equal to that he would have normally earned (had he been referred in proper order) during the period August 10, 1973, to August 29, 1973,20 less net earnings during such period. Backpay shall be computed in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289(1950), with interest thereon at the rate of 6 percent as required by Isis Plumbing & Heating Co., 138 NLRB 716 (1962). I shall further recommend that Respondent notify Cook that use of its hiring hall facilities will be available to him on an equal basis with other applicants in regard to job referrals. Finally, I shall recommend that Respondent be required to post an appropriate notice. CONCLUSIONS OF LAW 1. Companies with which Respondent has a hiring hall agreement and to which it made referrals in 1973 are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By refusing to refer the Charging Party for employ- ment on August 10, 1973, Respondent failed to accord him equal representation with other members and job regis- trants based on -irrelevant considerations, thus violating Section 8(bXIXA) of the Act. 4. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] is Miranda Fuel Company, Inc, 140 NLRB 181 (1962), enforcement denied 326 F.2d 172 (C.A. 2, 1963). The decision of the Board, and not the court, is binding upon me. Prudential Insurance Company of America, 119 NLRB 768, 773(1957) 19 Cf Ebasco Services, Inc, 176 NLRB 896, 902 (1969) (failure to refer Clark for welder's work for which he was not qualified), International Hod Carriers, Building and Common Laborers Union ofAmerica, Local 341 AFL- CIO, 146 NLRB 1358, 1367-68 (1964) (the Chitna referrals). 20 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. 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.