Operating Engineers, Local 370

OPERATING ENGINEERS , LOCAL 370 International Union of Operating Engineers, Local No 370, AFL-CIO (Associated General Contrac- tors of America, Inc., Inland Empire Chapter) and Ernest Bailey. Case 19-CB-2340 June 10, 1976 SUPPLEMENTAL DECISION AND ORDER By MEMBERS FANNING, PENELLO, AND WALTHER On May 1, 1975, the National Labor Relations Board issued an Order in the above-entitled proceed- ing in which it, inter alia, adopted the findings, con- clusions, and recommendations of Administrative Law Judge Richard D Taplitz as contained in his attached Decision of March 6, 1975, and ordered that Respondent take the action set forth in the Ad- ministrative Law Judge's recommended Order' The Administrative Law Judge had concluded that Re- spondent violated Section 8(b)(1)(A) and (2) of the Act by refusing to refer Bailey to employment through its exclusive hiring hall on and after May 24, 1974, because Bailey owed dues to a sister union, Local 302, and ordeied that Respondent make Bailey whole for any loss of earnings suffered on and after May 24, 1974, by reason of Respondent's unlawful refusal to refer him to work Thereafter, on October 7, 1975, International Union of Operating Engineers, Local 370, AFL- CIO, Ernest Bailey, and the General Counsel of the National Labor Relations Board entered into a stipu- lation in lieu of backpay hearing in which they stipu- lated and agreed to certain facts The parties agreed that the stipulation should constitute the entire rec- ord in this case Moreover, they waived a backpay hearing before an Administrative Law Judge, the making of findings of fact and conclusions of law by an Administrative Law Judge, and issuance of an Administrative Law Judge's Decision, and submitted the case for findings of fact, conclusions of law, and an appropriate order by the Board On October 16, 1975, the Board issued an Order Approving Stipulation and Transferring Proceeding to the Board Thereafter, the General Counsel and Respondent filed briefs On March 31, 1976, in response to an informal request by the National Labor Relations Board for additional information, the parties entered into a supplemental stipulation in lieu of backpay hearing in which they agreed that the supplemental stipula- i Order of May 1, 1975, not reported in volumes of the Board's Decisions and Orders 641 tion plus the October 7, 1975, stipulation should con- stitute the entire record in this matter Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel The Board has considered the entire record herein, including the briefs, and makes the following find- ings Respondent discriminatorily refused to refer Bai- ley for employment through its exclusive hiring hall maintained pursuant to a collective-bargaining agreement with Associated General Contractors of America, Inc, Inland Empire Chapter 2 In accor- dance with the agreement's referral procedure, appli- cants' initial employment with a given contractor is governed by their position on an out-of-work list 3 Under the recall or call-back provision of the AGC agreement, however, persons are eligible to be re- quested back for subsequent openings with a prior employer "without regard to the requested man's place on the out-of-work list " 4 "Request" dispatches are at the discretion of an individual's prior employ- er Whether, for purposes of computing backpay due, Bailey should be credited only with general dis- patches given other individuals who bypassed him on the out-of-work list, or whether he should also be credited with subsequent "recall" or "call-back" dis- patches these individuals received pursuant to the contract's recall provision, is the sole issue to be de- cided here Respondent has already forwarded to Bailey the sum of $1,642 20, plus interest,' which the parties agreed correctly represents earnings lost by Bailey during the backpay period if Bailey is credited only with general dispatches given other employees who bypassed him on the out-of-work list General Counsel, however, asserts that an additional $8,250 88 in backpay is due, plus interest, a figure which the parties agree is due Bailey if he is entitled to the earnings of these other employees who were recalled pursuant to the terms of the agreement be- tween Respondent and the AGC Contrary to the General Counsel's contention, Respondent's brief, filed subsequent to the initial Oc- tober 7, 1975, stipulation, asserts that only the gener- 2 Hereinafter referred to as AGC 3 The out-of-work list is divided into three groupings which are based on an employees length of service with employers in the collective -bargaining unit At the time of the unfair labor practices, Bailey was entitled to register on the ` B out-of-work list but is now entitled to "A' list dispatch 4 Sec 5(F)(3) of the AGC agreement states Requests by employers for a particular man previously employed by the employer and who has been laid off or terminated by the employer within three years previous to the request shall be honored without regard to the requested man s place on the out-of-work list 5 Bailey was forwarded a total of $1,73649 224 NLRB No 94 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD al dispatch formula is appropriate and that, accord- ingly, the sum of $1,642 20, plus interest, is the total amount of backpay due Bailey Stressing that the general dispatch plus "recall" formula is based on speculation and uncertainty, Respondent argues that an employee's recall pattern is based on the subjec- tive whims of an employer and that there are no ob- jective standards to indicate whether Bailey would have been recalled to any job From the March 31, 1976, supplemental stipula- tion which was submitted after the parties' filing of briefs,6 it now seems apparent that while Bailey would not have received every "request" dispatch obtained by employees who bypassed him on the out-of-work list he would have received a consider- able number In this vein, the record reflects that, at all times material herein, Bailey has been listed on Respondent's out-of-work list as a dozer/loader op- erator There is no evidence that Bailey is not as well qualified as other individuals dispatched during this time period for dozer/loader jobs From September 1973 through March 1976,7 Bailey was initially dis- patched to three separate employers Two of those employers, or 67 percent, subsequently requested Bailey's dispatch pursuant to the recall provision of the AGC agreement S While the record regarding Bailey's request dispatches is thus limited, it does provide an objective basis for assessing his recall pat- tern That Bailey would not have received 100 per- cent, or perhaps even 67 9 percent of the "request" dispatches of employees who bypassed him on the out-of-work list does not support Respondent's claim that Bailey is only entitled to a backpay figure based upon a general dispatch formula For as we have of- ten noted in backpay cases, we refuse to give Re- spondent the benefit of uncertainties caused by its own misconduct 10 Rather, in the circumstances, we conclude that Bailey is entitled to credit for 67 percent of the "re- quest" dispatches received by employees who by- passed him on the out-of-work list In our view, this figure, which is based upon the only evidence pro- duced relative to Bailey's record of "request" dis- patches, can best restore the situation as nearly as possible to that which would have obtained but for 6 Although each party had an opportunity to file supplemental briefs neither did so 7 While this is the period reflected in the record, the backpay period starts from May 24, 1974 8 These statistics are gleaned from the supplemental stipulation 9It is noteworthy that for the period September 1973 through October 1975, Respondent issued 703 dispatches to individuals for dozer/loader jobs 237 of these dispatches or 34 percent, were "request' dispatches pur- suant to sec 5(F)(3), the recall provision of the AGC agreement 10 See e g , Controlled Alloy, Inc and Harlin Precision Sheet Metal Fabrica Lion Co, Inc 208 NLRB 882 (1974), United Aircraft Corporation 204 NLRB 1068 (1973), Southern Household Products Company, Inc 203 NLRB 881 (1973) Respondent's unlawful conduct Accordingly, we shall order that Respondent make payment to Bailey of an additional $5,500 58 in backpay, plus interest to the date of payment ORDER Respondent, International Union of Operating Engineers, Local No 370, AFL-CIO, its officers, agents, and representatives, shall make Ernest Bailey whole by payment of the additional sum of $5,500 58 in net backpay plus interest thereon accrued to the date of payment at the rate of 6 percent per annum, computed in the manner specified in Isis Plumbing & Heating Co , 138 NLRB 716 (1962), minus any tax withholdings required by Federal and state laws DECISION STATEMENT OF THE CASE RICHARD D TAPLITZ, Administrative Law Judge This case was heard at Spokane, Washington, on January 14, 1975 The charge was filed on October 15, 1974, by Ernest Bailey, an individual The complaint issued on November 29, 1974, alleging that International Union of Operating Engineers Local No 370, AFL-CIO, herein called Respon- dent, violated Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended Issue The primary issue is whether Respondent (Local 370) violated Section 8(b)(1)(A) and (2) of the Act by refusing to refer Bailey for employment from its exclusive hiring hall because Bailey was delinquent in dues to Local 302, a sister union of the same international All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs A brief which has been carefully considered, was filed on behalf of the General Counsel Upon the entire record of the case and from my observa- tion of the witnesses and their demeanor, I make the fol- lowing FINDINGS OF FACT I THE BUSINESS OF THE EMPLOYER At all times material herein, Respondent and the Associ- ated General Contractors of America, Inc, Inland Empire Chapter, herein called the Employer, have been parties to a collective-bargaining agreement covering all persons em- ployed as operating engineers performing highway, heavy building, and engineering construction work by employer- members of the Employer That contract contains an ex- clusive hiring hall arrangement under which employees are OPERATING ENGINEERS , LOCAL 370 referred from a hiring hall operated by Respondent The complaint alleges that Bailey was unlawfully refused refer- ral from that hiring hall The Employer is a multiemployer association incorpo- rated in the State of Washington, which exists, inter aha, for the purpose of negotiating collective-bargaining agree- ments with various labor organizations, including Respon- dent, on behalf of its employer-members During the year immediately preceding issuance of complaint, the employ- er-members of the Employer, in their combined purchases, caused to be transported and delivered to their places of business, building materials and other goods valued in ex- cess of $50,000, which were transported and delivered in interstate commerce directly from States other than the States in which said employer-members were located The Employer is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED Respondent and Local 302 are labor organizations with- in the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A The Events 1 The background Respondent's jurisdiction extends through part of the State of Washington east of the Cascade Mountains and into Idaho It has approximately 4,000 members and main- tains its main office in Spokane, Washington As set forth above, Respondent has contractual relations with the Em- ployer I under which it maintains an exclusive hiring hall Applicants for work within Respondent's jurisdiction must, pursuant to the contract, be referred from Respondent's hall The contract provides for class A, class B, and class C priorities The first priority, class A, goes to operating engi- neers who have been employed by an employer party to the agreement who has worked for such employer for 500 hours during the preceding 2 years Class B status goes to operating engineers who have engaged in such work be- tween 200 and 500 hours during that time All other ap- plicants are in the class C groups 2 Bailey has a class B priority 3 1 The current contract is from June 1, 1974, to May 31 1977 The preced- ing contract was from June 1, 1973 to May 31 1974 Although the contract provides for class B priority after 200 hours Respondent's dispatcher, Glenn H Chnstilaw, testified that class B status is granted after 250 hours 3 Respondent's records indicate that Bailey accrued 277 hours through May 1974 However, his records were not corrected to show the class B status until October 21, 1974 Arthur Hansen, Respondents field represen- tative, credibly testified that the delay in the change of the records was caused by the fact that some employers were late in reporting the hours worked by employees The complaint alleges that Respondent discriminated against Bailey in referrals since on or about May 24, 1974 The complaint alleges and the answer admits that "At all times material herein, Bailey maintained class B' List Applicant status' On the basis of the admission I find that on and after May 24, 1974, Bailey did have class B status 643 Under the hiring hall procedure, when an applicant ap- plies for work he fills out a registration form When an employer needs employees, it calls the union hall and the union dispatcher takes the work order The dispatcher maintains an out-of-work book which is signed by the ap- plicant for employment After examining the qualifications set forth in the work order, the dispatcher goes down his out-of-work list until he finds an applicant whose qualifica- tions meet the needs of the employer and that applicant is offered the job Those applicants who have been out of work longest are on the top of the out-of-work list and are given first opportunity for the job within their priority clas- sification 4 The hiring hall rules provide that an applicant must re-sign the out-of-work book every 30 days or his name is deleted therefrom This rule is posted in the hiring hall and Bailey admits that he was aware of it In practice the 30-day deletion rule is not always closely followed At times applicants are left on the list for many months, even though they have not re-signed Local 302 is the Operating Engineer Union with jurisdic- tion in the Seattle, Washington, area It also maintains a hiring hall within its jurisdiction 2 Bailey's efforts to secure employment a The incidents before May 24, 1974 Until October 31, 1972, Bailey was a member of Local 302 in Seattle On that date he was suspended from mem- bership for nonpayment of dues 5 However, even after the suspension Local 302 continued to refer Bailey from its hiring hall to some work On April 20, 1973, Bailey went to Spokane and regis- tered with Respondent's hiring hall At that time he spoke to Respondent's business representative and dispatcher Glenn H Chnstilaw Christilaw said that some of the dues stamps were missing from Bailey's Local 302 membership book Bailey replied that he was in arrears in dues In the latter part of July 1973, Bailey moved to Spokane in order to seek steady employment For some time he continued to work on a job he had been referred to by Local 302 and commuted to the Seattle area During the week of March 13, 1974, Bailey went to Respondent's Spo- kane hiring hall and spoke to the man behind the counter, Jerry Greeley He told Greeley about his problems with Local 302 and that as of September 1973, he owed Local 302 $179, but that the amount had grown to $420 The man suggested that Bailey get in touch with Local 302 and ob- tain an itemized statement However, Bailey was allowed to register and sign the out-of-work book Respondent's field representative, Arthur Hansen,6 was standing nearby and overheard the conversation Hansen said that if Bailey were in trouble with Local 302, he was also in trouble with Respondent Greeley told Hansen that there were special 4 Class A applicants are sent out before class B, and class C applicants are sent out last 5 The nonpayment came about after a dispute between Bailey and Local 302 concerning certain overtime problems and other matters not relevant here 6It was stipulated and I find that Hansen is an agent of Respondent 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD circumstances Hansen did not interfere with Bailey's regis- tration or his signing of the out-of-work book The following Monday, March 18, 1974, Bailey went to Local 302's hiring hall in Seattle and received an itemized statement of dues and fees that he owed Local 302 On March 19, 1974, Bailey went to the Washington State Department of Labor and spoke to Associate Chief Media- tor Gene Miller Bailey told Miller that he was having problems getting work and couldn't obtain a dispatch from Spokane Miller had no jurisdiction over such matters, but in order to be helpful he called the Union and told Hansen he would appreciate anything Hansen could do for Bailey Hansen told Miller to send Bailey over to see him The following day, March 20, 1974, Bailey spoke to Hansen at the union office Hansen said that he didn't have any jobs available for Bailey and that he would get in touch with Whitey Langberg (the business manager of Lo- cal 302) in Seattle and see if he could work out something for Bailey to pay back dues at Respondent, with Respon- dent forwarding them to Local 302 Hansen also told Bai- ley to come to the hiring hall every day and if Bailey was sitting there he (Hansen) would send him out if a job came in On March 22, 1974, Hansen called Bailey on the phone and said there was a job available for Bailey if he was experienced operating a certain type of heavy equipment Hensen told Bailey not to accept the job unless he was an expert on that machine Bailey did not have the type of experience needed so he declined the job On March 25, 1974, Bailey went to the hiring hall and again spoke to Hansen Hansen said that there were no jobs at that time but that work would be coming in as the weather improved Hansen gave Bailey the name of a com- pany that did not have an exclusive hiring hall in its con- tract and the names of some nonunion contractors and suggested he go speak to them Bailey was back at the hiring hall on March 28, 1974, at which time he spoke to Respondent's business representa- tive and dispatcher, Glenn H Christilaw Christilaw asked Bailey why he had spoken to Miller and said that Miller had no business with the Union Christilaw also said that Respondent did not discriminate and if there was anything that got his dander up it was somebody hollering discrimi- nation Bailey responded that all he wanted was to go out to work Christilaw said that he would send Bailey out if a job came in Respondent's records establish that Bailey was referred from Respondent's hiring hall on four separate occasions Based on a registration date of July 31, 1973, he was re- ferred to a short job on August 9, 1973 He signed the out-of-work list on August 14, 1973, and was referred to another short job on August 16, 1973 He signed the list again on August 22, 1973, but he was removed from the list on December 11, 1973, because he had not re-signed within 30 days Although the hiring hall rules provide for removal after 30 days, he was not removed for 3-1/2 months Bailey reregistered and signed the out-of-work list again on March 15, 1974 Thereafter, he had the conversations with the union agents as set forth above He was referred to a short job on April 15, 1974, and was back to sign the list again at the hiring hall on April 19, 1974 He was referred to work on August 22 and that job lasted about three weeks When it was completed, he once again signed the out-of-work list on May 16, 1974 b The incidents on May 24, 1974, and thereafter About 9 a in on May 24, 1974, Bailey went to the dis- patch window at Respondent's hiring hall and spoke to Business Representative and Dispatcher Glenn H Christi- law Christilaw said that he was not going to dispatch Bai- ley again until Bailey had a paid up receipt from Local 302 Bailey replied that Hansen had told him that he (Hansen) was going to try and get in touch with Whitey Langberg of Local 302 and see if they could work out a payment sched- ule Christilaw then said that neither Hansen nor anyone else in Respondent was going to help Bailey with his prob- lems with Local 302 7 On May 24, 1974, after talking to Christilaw, Bailey made a number of phone calls He called Langberg of Lo- cal 302 and discussed the problem with him He then placed a call to the International Union in Washington, D C, but was unable to speak to anyone He called Miller from the State Labor Department who told him that there was nothing he could do for him At or about 2 p in that day, Bailey called Hansen Bai- ley reported to Hansen that Christilaw had told Bailey that Christilaw was not going to send Bailey out again until Bailey had a paid-up card and that no one in Respondent was going to help Bailey straighten out things with Local 302 8 Hansen suggested that Bailey talk to Respondent's business manager, Bill Dunn During the following 3 weeks, Bailey called Dunn six or eight tunes, but was unable to reach him Finally about 3 weeks after his May 24 conversation with Hansen, Dunn's secretary told Bailey that Dunn was out of town Bailey replied that if Dunn did not call back when he came back into town, Dunn would have to talk to his attorney Bailey hung up and about 3 minutes later, Dunn called back and asked what was this about being sued Bailey said that Christilaw had told Bailey that Christilaw was not going to send Bailey out again until Bailey had a paid-up receipt 9 7 These findings are based on the credited testimony of Bailey Christilaw acknowledged in his testimony that he had a conversation with Bailey in the spring of 1974 in which he asked Bailey if Bailey had cleared up his dues problem with Local 302 According to Chnstilaw, Bailey said that he had not Christilaw did not specifically deny that the conversation took place as testified to by Bailey, but he did aver that he did not at any time refuse to dispatch Bailey because of Bailey's failure to pay Local 302 dues I credit Bailey's version of the conversation 8 Bailey also reported to Hansen That Bailey told Christilaw that Hansen was working on Bailey's behalf trying to set up a repayment schedule with Langberg, that Bailey called Langberg and Langberg told Bailey that Lang- berg didn't make deals with anyone about payment on dues and that it all had to be paid up before Bailey could be dispatched out of Local 302 or any other local in the International, and that Langberg told Bailey that Christi- law had called and said that Bailey had lied to Christilaw by saying Bailey was a paid-up member, that Christilaw had dust found out Bailey was not and that Bailey was not going to go out until Bailey paid up with 302 Hansen answered that Christilaw was a liar because everyone there knew that Bailey was behind in his dues to Local 302 and that Hansen was trying to help him get back on his feet 9 Bailey also told Dunn that Bailey was behind in his dues to Local 302, but that he had to go to work to pay them, that Bailey had been dispatched in the past, but that on May 24 Christilaw told Bailey that Bailey would not OPERATING ENGINEERS, LOCAL 370 Dunn replied that Christilaw did not run the Union and that he did Dunn also said that if Bailey's name came up on the list Bailey would go out Bailey then said "why don't you call, tell Mr Chnstilaw this " Dunn then said "you or no one else tells me what to do in this damn union, son of a bitch sue me," and slammed the phone down Bailey has not been sent out to work through the hiring hall since his referral of April 22, 1974 That job lasted about 3 weeks Respondent's records show that he signed the out-of-work list on May 16, 1974, and that he was re- moved from that list on August 30, 1974, for not signing in under the 30-day rule He did not sign in again until Octo- ber 22, 1974, when it was suggested to him by an agent of the General Counsel that he do so He credibly testified that even though he was aware of the 30-day rule, he did not sign in between May 16 and October 22, 1974, because he thought that in the light of his conversation with Christi- law and Dunn, such a sign-m would be meaningless After signing in on October 22, 1974, Bailey was removed from the out-of-work list under the 30-day rule on November 26, 1974 He signed again on December 2, 1974, and January 2, 1975 Bailey has paid all dobie fees (fees for the use of the hiring hall) that were required of him B Analysis and Conclusions An exclusive hiring hall giNes a great deal of authority over the hiring process to a Union, but such authority is not in itself violative of the Act 10 However, under such a hiring hall system, a union cannot lawfully refuse to refer an applicant because of union considerations unless that refusal is based on a valid union-security clause 11 A union may lawfully refuse to refer an applicant in a situation where that union could, pursuant to a lawful union-securi- ty clause, require immediate discharge of that employee for failure to pay dues under a contract governing his employ- ment," but the applicant cannot be required to pay back dues for a period when dues were not validly required as a condition of employment 13 Referral cannot lawfully be re- fused because an applicant is not a member of or current in his dues with a sister local of the same International as the go out again until Bailey had a paid-up receipt, that Bailey called Whitey Langberg and Langberg told Bailey that Bailey would have to be a paid-up member before Bailey was dispatched , and that Langberg also told Bailey that Christilaw had called Langberg and said that Bailey had lied to Christ]- law in saying that Bailey was a paid up member of 302 and that Christilaw was not going to dispatch Bailey again until Bailey was a paid-up member 10 Local 357, International Brotherhood of Teamsters, Chauffeurs Ware housemen and Helpers of America [Los Angeles Seattle Motor Express] v NLRB, 365 U S 667 (1961) 11 Seafarers International Union of North America, Atlantic, Gulf Lakes & Inland Waters District, AFL-CIO (Isthmian Lines Inc) 202 NLRB 657, enfd 496 F 2d 1363 (C A 5, 1974) In addition, referral may be conditioned on the payment of a reasonable nondiscriminatory hiring hall fee Boston Cement Masons and Asphalt Layers Union No 534 (Duran Maguire Eastern Corp), 216 NLRB 568 (1975) However there is no such issue in this case as Bailey paid all the dobie" fees required of him i2 Mayfair Coat & Suit Co 140 NLRB 1333 (1963) 13 Cf Fishermen & Allied Workers' Union Local 33 International Longshoremen's and Warehousemen s Union (S G Guiseppe Fishing Inc) 180 NLRB 851 (1970) enfd 448 F 2d 255 (C A 9 1971) 645 referring union 14 Where a union refuses to register or refer an applicant because of improper union considerations, the General Counsel need not prove that jobs were available at the time of the request for referral 15 In the instant case, on May 24, 1974, Respondent's busi- ness representative and dispatcher, Glenn H Christilaw, told Bailey that Bailey would not be dispatched from the hiring hall until he paid his back dues to Local 302 From that time on Bailey was not dispatched from the hiring hall Respondent operated an exclusive hiring hall and it could not lawfully refuse to refer Bailey on the ground that he was not current in his dues to a sister local Respondent, through the testimony of Christilaw, contended that there was no work available for Bailey to be sent to Such a contention, however, is not a valid defense under the cases cited above The amount of work (if any) that Bailey would have secured by referral from the hall, if he had been sent out without any consideration of his dues obligations to Local 302, is a matter to be considered in determing the amount of backpay due Bailey was on the out-of-work list from May 16, 1974, until August 30, 1974, when he was removed under the 30-day rule However, I find that Respondent's removal of Bailey from the out-of-work list did not end Respondent's continuing liability The same is true for the time he was removed from the out-of-work list between November 26, 1974, and December 2, 1974 Christilaw had made it clear to Bailey that Bailey would not be sent out of the hall and the law does not require a wronged party to go through meaningless acts as a condition for having the wrong remedied In about mid-June 1974, Respondent's Business Manager Dunn told Bailey that, if Bailey's name came up on the list, he would be sent out However, in the entire context of that conversation, it was clear that Dunn had no intention of reversing Christilaw's decision not to send Bai- ley out When Bailey asked Dunn to call Christilaw, Dunn answered, "you or no one else tells me what to do in this damn union, son of a bitch, sue me," and slammed the phone down Bailey reasonably assumed from Dunn's words that Dunn was not going to help him I find that, by refusing to refer Bailey to employment through its exclusive hiring hall on and after May 24, 1974, because Bailey was not current in his dues with Local 302, Respondent violated Section 8(b)(1)(A) and (2) of the Act 14 Cf International Brotherhood of Electrical Workers, AFL-CIO, Local 648 (Foothill Electrical Corporation) 182 NLRB 66 (1970), enfd 440 F 2d 1184 (C A 6, 1971), international Brotherhood of Electrical Workers, AFL- CIO Local 82 (National Electrical Contractors Association, Dayton, Ohio Chapter), 182 NLRB 59 (1970), enfd 440 F 2d 1184 (CA 6, 1971) t Utility and Industrial Construction Company and Local 1076, Internation al Laborers Union of North America AFL-CIO 214 NLRB 1053 (1974), and cases cited therein In the Utility and Industrial Construction Company case the Board held The Administrative Law Judge reasoned that , because the Respon dent Company never again requested any employees from the Respon- dent Union s referral system, the violation was merely a theoretical one and dismissed the allegations of the complaint in regard thereto This conclusion must be rejected We have consistently held that to establish a violation it is unnecessary to show that jobs were available at the time of the request for referral The stated reason for the Union s refus- al to register and refer was nonmembership Hence, we find that by refusing to register and refer [the applicant], the Respondent Union violated Section 8(b)(1)(A) and 8(b)(2) of the Act 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent , as set forth in section III, above, occurring in connection with the business opera- tions of the Employer set forth in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce V THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative ac- tion designed to effectuate the policies of the Act I shall also recommend that Respondent make Bailey whole for any loss of earnings suffered on and after May 24, 1974, by reason of Respondent's unlawful refusal to refer him to work The amount of backpay shall be com- puted in accordance with the formula set forth in F W Woolworth Company, 90 NLRB 289 (1950), with interest at 6 percent as provided in Isis Plumbing & Heating Co, 138 NLRB 716 (1962) It is recommended that Respondent be ordered to make Bailey whole for any rights he would have accrued from any employment relationship improperly foreclosed him through Respondent's unlawful conduct and that Respondent credit Bailey with the hours he would have worked but for the discrimination, in determining his eligibility for class A status in the hiring hall referral sys- tem As the unlawful conduct of Respondent indicates a pur- pose to limit the lawful rights of applicants for employ- ment, and the danger of its continued further commission is reasonably foreseen, I shall also recommend that Re- spondent be ordered to cease and desist from operating its exclusive hiring hall in such a manner as to cause or at- tempt to cause any employer subject to the Board 's juris- diction to deny employment to any employee or applicant for employment because of lack of union membership or payment of union dues, except to the extent permitted by Section 8(a)(3) of the Act It is recommended that Respondent be ordered to pre- serve and, upon request, make available to the Board or its agents, for examination and copying, all records pertaining to employment through its hiring hall and all records rele- vant and necessary for compliance with this recommended Order CONCLUSIONS OF LAW 1 The Employer and its member-employers are employ- ers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 Respondent and Local 302 are labor organizations within the meaning of Section 2(5) of the Act 3 By refusing to refer Bailey to employment through its exclusive hiring hall on and after May 24, 1974, because Bailey owed dues to Local 302, Respondent violated Sec- tion 8(b)(1)(A) and (2) of the Act 4 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended ORDER 16 Respondent, International Union of Operating Engi- neers Local No 370, AFL-CIO, its officers, agents, and representatives, shall I Cease and desist from (a) Refusing to refer Ernest Bailey to employment through its exclusive hiring hall because Bailey owes dues to International Union of Operating Engineers Local No 302, AFL-CIO (b) Operating its exclusive hiring hall in such a manner as to cause or attempt to cause any employer subject to the jurisdiction of the National Labor Relations Board to deny employment to any employee or applicant for employment because of lack of union membership or payment of union dues, except to the extent permitted by Section 8(a)(3) of the Act (c) In any like or related manner restraining or coercing employees in the excercise of rights guaranteed to them in Section 7 of the Act 2 Take the following affirmative action necessary to ef- fectuate the policies of the Act (a) Make whole Ernest Bailey for any loss of pay or other benefits he may have suffered as a result of its unlaw- ful refusal to refer him to work , in the manner set forth in the section of this Decision entitled "The Remedy " (b) Preserve and, upon request, make available to the Board or its agents , for examination and copying, all rec- ords pertaining to employment through its hiring hall and all records relevant and necessary for compliance with this recommended Order (c) Post at its business offices, hiring hall, and meeting places, copies of the attached notice marked "Appen- dix " 17 Copies of said notice on forms provided by the Regional Director for Region 19, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter , in con- spicuous places, including all places where notices to mem- bers are customarily posted Reasonable steps shall be tak- en by Respondent to insure that notices are not altered, defaced, or covered by any other material 16 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 17 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " OPERATING ENGINEERS, LOCAL 370 647 (d) Notify the Regional Director for Region 19, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith APPENDIX NOTICE POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the Umted States Government To all job applicants using our hiring hall, whether or not members of International Union of Operating Engineers Local No 370, AFL-CIO WE WILL NOT refuse to refer Ernest Bailey to employ- ment through our exclusive hiring hall because Bailey owes dues to International Union of Operating Engi- neers Local No 302, AFL-CIO WE WILL NOT operate our exclusive hiring hall in such a manner as to cause or attempt to cause any employer subject to the jurisdiction of the National Labor Relations Board to deny employment to any employee or applicant for employment because of lack of union membership or payment of union dues, except to the extent permitted by Section 8(a)(3) of the Act WE WILL make Ernest Bailey whole for any loss of pay or other benefits he may have suffered as a result of our refusal to refer him to work WE WILL NOT, in any similar manner, restrain or coerce employees INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL No 370, AFL-CIO