Ironworkers Local 373

DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Association of Bridge, Structural & Ornamental Ironworkers, Local 373 and Henry Arminas, Paul Bongard, Jr., Frank Castellano, Jeffrey Coleridge, Philip Connell, William Craw- ford, Joseph Dolinich, Edward Farley, James Fox, John Krusis, Thomas McCloskey, Donald McMa- hon, Frank O'Neill, Arthur Smith, Charles Thom, and Joseph Thom, and Building Contractors Association of New Jersey, Party to the Contract International Association of Bridge, Structural & Ornamental Ironworkers, Local 45 and Adam Lerie, and Joseph Bucci, and Marcel Brizien, Carl Clarino, Patrick Clarino, James Moniello, John Moniello, Michael Moniello, and Jack Tagliareni and Building Contractors Association of New Jersey, Party to the Contract International Association of Bridge, Structural & Ornamental Ironworkers, Local 483 and William O'Neill, and Nicholas Philipchuk and A.H. Wink- ens, and Richard Clark, and Building Contractors Association of New Jersey, Party to the Contract. Cases 22-CB-3024, 22-CB-3046, 22-CB-3123, 22-CB-3151, 22-CB-3097, 22-CB-3195, and 22- CB-3204 September 28, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On September 23, 1976, Administrative Law Judge Tomas A. Ricci issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief; Respondents International Association of Bridge, Structural & Ornamental Ironworkers, Locals 373 and 45 (herein I Respondent Locals 373 and 45 have requested oral argument. This request is hereby denied as the record, exceptions, and briefs adequately present the issues and positions of the parties. 2 Respondent Local 373 has excepted to the failure of the Administrative Law Judge to strike the testimony of Frank O'Neill on the ground that his invocation of the constitutional privilege against self-incrimination effective- ly deprived it of its right to cross-examine him. Inasmuch as Respondent's cross-examination of the witness related primarily to matters relevant to backpay proceedings, we hereby affirm the Administrative Law Judge's ruling. See Sec. 102.44(c) of the Board's Rules and Regulations, Series 8, as amended. 3 The Northern New Jersey District Council of Ironworkers is comprised of various locals, including the three Respondents herein. Pursuant to a contractural agreement with the Building Contractors Association of New Jersey, these locals operate exclusive hiring halls. 4 The consolidated complaint specifically alleged, inter alia, that Respondent Locals 373, 45, and 483 had discriminated against 29 named individuals. At the hearing. the General Counsel withdrew the allegations of the complaint relating to alleged discriminatees A. H. Winkens, Nicholas Philipchuk. and Richard Clark. who had filed charges against Local 483. The Administrative Law Judge dismissed the allegations of the complaint with respect to alleged discriminatees William O'Neill, the sole remaining complainant against Local 483, Joseph Bucci, Charles Thom, and Joseph 232 NLRB No. 85 called Respondent Locals 373 and 45), jointly filed exceptions and a supporting brief; and the Charging Parties filed limited exceptions and a 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,2 findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge concluded that Respondent Locals 373 and 45 have engaged in widespread and pervasive violations of Section 8(b)(l)(A) and (2) of the Act by discriminating against nonmember applicants in the operation of their exclusive hiring halls. 3 He found that Respon- dents had committed unfair labor practice violations in every instance in which their members were referred to work in preference to 22 alleged discrimi- natees named in the complaint who had registered prior to them.4 In each instance the member's name bore no special designation in the right-hand column of the referral books entitled "Remarks" which might have justified preferential treatment.5 In so doing, the Administrative Law Judge, as part of his Decision, introduced into evidence as his own exhibits certain appendixes prepared and submitted by the General Counsel in a posthearing brief to the Administrative Law Judge which contained summar- ies of the referral books of Respondent Locals 373 and 45, and the shop steward reports of Respondent Local 45. It is clear from a comparison of the referral books with the statistical information set out by the Administrative Law Judge as illustrations of unlaw- ful conduct that, in finding specific violations herein, he substantially relied on the summaries provided by Thom. We adopt the Administrative Law Judge's dismissal of these allegations. 5 On July 28, 1972, a 5-year consent decree was issued by the United States District Court for the District of New Jersey in a Title VII action brought against, inter alia, the Northern New Jersey District Council of Ironworkers and its five locals, including the three Respondents herein. The consent decree provides 'that the referral system shall be operated by Respondents on a "non-discriminatory basis without regard to membership or non-membership in the Union, and there shall be no discrimination against any person by reason of race or color." The consent decree, however, permits the Unions to refer individuals out of chronological order in the following instances: (I) the contractor specifically requests an applicant, by name, who had previously signed the referral list; (2) the applicant is a trainee or apprentice within the geographical jurisdiction of the local union; (3) the contractor requests a specific individual to serve as foreman; (4) senior experienced applicants designated by the local union to act as stewards: (5) minorities requested by contractors who are obligated to meet affirmative action requirements imposed by any governmental agency: and (6) employer requisitions communicated during other than normal referral hours or on Saturdays, Sundays, or holidays. It appears that Respondents, when making referrals which purportedly fell within these classifications, generally denoted such referrals by placing special designa- tions in the "Remarks" column of their refenal books. 504 IRONWORKERS, LOCAL 373 the General Counsel rather than on the actual referral records which were introduced into evidence. Respondents except to the Administrative Law Judge's findings insofar as they are based on the General Counsel's posthearing summaries. They contend, inter alia, that the General Counsel failed to take into account designations in the "Remarks" column for members falling within excepted catego- ries under the consent decree, and did not consider other designations appearing elsewhere in their referral books. While we conclude that Respondents in fact have engaged in a continuing and widespread pattern of unlawful conduct against the discriminatees herein, we do so based upon our examination of the referral books themselves, placing no reliance on the General Counsel's summaries. In finding the specific viola- tions which are detailed in Appendixes C and D [omitted from publication], we have excluded from consideration those instances in which it appears from the books that Respondents seek to justify nonchronological referrals of members by according them preferential referral designations recognized by the consent decree. We have relied solely on those referrals wherein members with no purported desig- nations were given preference over the 22 nonmem- ber applicants found by the Administrative Law Judge to have been discriminated against. Thus, we find that Respondent Local 373 clearly violated Section 8(b)(l)(A) and (2) of the Act an indisputable minimum number of 349 times and Local 45 clearly violated the same provisions of the Act an indisputa- ble number of 74 times by affording preferential treatment to their own members. 6 In addition to his findings of specific violations, the Administrative Law Judge concluded that Respon- dents' designation of their own members as falling within the excepted categories of "foreman," "stew- ard," "requested," or "late call" were deceitful in at least half of the total instances in which they made out-of-turn referrals based on such designations. In this regard, he found: As the months went on-starting early in January 1975 before any charge was filed, continuing into the second half of the year with more charges being filed, and then through the early part of 1976 as the hearing approached, more and more of the preferred members were 6 Specifically, with respect to Local 373, a review of the referral books reveals that during the period from January 15, 1975, to June 10, 1976, that Respondent clearly violated the Act at least the following number of times against each of the named discriminatees: Henry Arminas (33); Paul Bonard, Jr. (26); Frank Castellano (30); Jeffrey Colendge (25): Philip Connell (36); William Crawford (60); Joseph Dolinch (6); Edward Farley (22); James Fox (27); John Krusis (12); Thomas McCloskey (26); Donald McMahom (14); Frank O'Neill (12); and Arthur Smith (20). Similarly, with respect to Local 45, for the period February 11, 1975, to June 10. 1976: designated foremen, stewards, etc. Indeed, there came a time when practically every member of Local 373 was recorded as in one special category or another. The inference that this progressive pattern tells a revealing story of deceit is inescapable. The Administrative Law Judge supported the "ines- capable" inference of deceit with a detailed recitation of findings conclusively establishing comparable patterns of progressively worsening, grossly disparate designation treatment for members vis-a-vis non- members in both Respondents' referral registers.7 While we do not find sufficient evidence to support the specific calculation in the Administrative Law Judge's finding that at least half of the aforemen- tioned designations were false, it is clear from the referral books that Respondents continuously and systematically designated their own members as falling within excepted categories under the consent decree and referred them out of turn, almost to the point of so designating each and every member referred. Although nonmember signatories signifi- cantly outnumbered members in the referral books, they were seldom accorded preferential referral classifications and were rarely referred to jobs out of chronological order even if they were classified within excepted categories in the books. We agree with the Administrative Law Judge that the only reasonable evidentiary inference to be drawn from this striking statistical contrast between member and nonmember referrals made pursuant to excepted category designations is that a substantial number of such designations are false. This evidence supplements the aforementioned conclusive evidence of multitudinous acts of discrimination against 22 identified nonmember applicants for employment and further demonstrates that Respondents have engaged in egregious and pervasive violations of the Act over an extended period of time by giving preference to members over nonmembers in making referrals. THE REMEDY Having found that Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b)()(A) and (2) of the Act, we shall order that they cease and desist therefrom and Marcel Bizien (4); Carl Clarino (I); Patnck Clanno (I); Adam Lerie (24); James Moniello (4); John Moniello (4); Michael Moniello (20); and Jack Tagliareni (16). See Appendixes C and D. 7 The Administrative Law Judge apparently based his findings with respect to excepted category designations and referrals upon an analysis of the referral books themselves. While there are minor discrepancies between the figures set out by the Administrative Law Judge and those revealed by our examination of books, such discrepancies are too insubstantial to affect our conclusion herein. 505 DECISIONS OF NATIONAL LABOR RELATIONS BOARD take certain affirmative action designed to effectuate the purposes of the Act. The complaint herein not only alleges that Respon- dents have violated the Act as to certain identified nonmember applicants, but also alleges more broad- ly that they have discriminated against "other of [their] applicants for employment." In view of our finding that Respondent Locals 373 and 45 have committed widespread unfair labor practices against nonmember applicants seeking employment through their hiring halls, we agree with the recommendation of the Adminstrative Law Judge that Respondents must be required to cease and desist from discrimi- nating against the 22 identified discriminatees, as well as all nonmember applicants similarly situated.8 We also shall provide that Respondents make whole the identified discriminatees and all nonmember applicants similarly situated who sought employment opportunities during the relevant period for any loss of earnings they may have suffered by reason of Respondents' discrimination against them.9 With respect to backpay for the individual discrim- inatees, and all nonmember applicants who were similarly situated, the Administrative Law Judge applied a formula to each Respondent Local where- by the overall earnings of all applicants, members and nonmembers, seeking employment through its referral system would be divided by the total number of ironworkers who worked out of the hiring hall. While we agree with the basic formula adopted by the Administrative Law Judge, we shall modify this portion of his recommended remedy by taking into account the net earnings of the individual discrimi- natees during the relevant period and by providing for the inclusion of interest. Thus, we shall order Respondents to make whole the named discrimina- tees and all other nonmember applicants who were similarly situated for any loss of earnings they may have suffered by reason of Respondents' discrimina- tion against them in the manner prescribed by the Administrative Law Judge, less their net earnings, I Respondents have set forth their use of' "requested" referral designa- tions made pursuant to the operative judicial consent decree as an affirmative defense to the charges herein. In this regard, the evidence of substantial falsification of excepted category referral designations by Respondents has already been discussed. In addition, we note specifically that Respondents have failed to substantiate the validity of "requested" designations by producing (1) the separate "Contractors Requisition Register" required by par. 23 of the consent decree or (2) wntten confirmation of contractors requests required by par. 27(c) of the consent decree. Respondents must at least produce such documents, or explain their failure to do so, in order to meet the burden of proving their defense to facially discriminatory referrals. Accordingly, the class of "similarly situated" discnminatees entitled to relief by this Decision and Order shall include any nonmember applicant for referral identified by the General Counsel in subsequent compliance proceedings as an individual in preference to whom a member applicant designated "requested" has been nonchronologically referred, with the provision that Respondents may attempt affirmatively to defend any "requested" referral designation by production and verification of the aforementioned documents or other evidence of sufficient probity. together with interest as provided in Florida Steel Corporation, 231 NLRB 651 (1977).1° The Administrative Law Judge also recommended that a neutral monitor-designated and supervised by the Board but compensated by Respondents-be appointed to oversee the daily operations and recording procedures at both hiring halls. In our judgment, the appointment of a monitor is not necessary to effectuate the purposes of the Act. However, in light of the consistent pattern of discrimination engaged in by Respondents against nonmember applicants over an extended period of time, we shall require Respondents to keep and retain for a period of 2 years permanent written records of their hiring hall operations and make such records available to the Regional Director upon request." We shall further require Respondents to submit to the Regional Director four quarterly reports concerning the employment of the 22 named discriminatees and other nonmember applicants subsequently found to have been similarly situated.12 In addition, we shall order Respondents to place the referral registers, for a period of 2 years, on a table or ledge in their hiring halls for easy access and inspection by all applicants upon completion of each day's entries in such registers. Finally, in addition to a requirement that Respondents post appropriate notices at their hiring halls, we shall direct that Respondents cause such notices to be printed in a newspaper of general circulation within their juris- dictional area. 13 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that: A. Respondent International Association of Bridge, Structural & Ornamental Ironworkers, Local 373, Perth Amboy, New Jersey, its officers, agents, and representatives, shall: 1. Cease and desist from: 9 See Painters, Decorators, and Paperhangers of America, Local No. 985 (W F Sahualia & Co., Inc.), 194 NLRB 323 (1971); Harold Goldsmith and Ada J. Goldsmith, d/b/a Superior Maintenance Company, 133 NLRB 746 (1961). 'o In accordance with our decision in Florida Steel Corporation, supra, we shall apply the current 7-percent rate for periods prior to August 25, 1977, in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. lI See, e.g., Ironworkers Local Union No. 290, International Association of Bridge, Structural and Ornamental Workers, A FL-CIO (Mid-States Steel Erection Company), 184 NLRB 177 (1970), enfd. 443 F.2d 383 (C.A. 6, 1971). 12 See, e.g., International Association of Bridge, Structural and Ornamental Iron Workers, Local 350 (Atlantic County Building Trades Employers Association), 164 NLRB 644 (1967). 13 See Local 420, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, A FL (J. J. White, Inc.), I I NLRB 1126 (1955), enfd. 239 F.2d 327 (C.A. 3, 1956). 506 IRONWORKERS, LOCAL 373 (a) Causing or attempting to cause the separate employer-members of Building Contractors Associa- tion of New Jersey, or any other employer, to discriminate against any of the following employees: Henry Arminas Paul Bongard, Jr. Frank Castellano Jeffrey Coleridge Philip Connell William Crawford Joseph Dolinich Edward Farley James Fox John Krusis Thomas McCloskey Donald McMahon Frank O'Neill Arthur Smith or any other employees, in violation of Section 8(a)(3) of the National Labor Relations Act because of their lack of membership in Local 373. (b) In any other manner restraining or coercing employees or applicants for employment in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. 2. Take the following affirmative action necessary to effectuate the purposes of the Act: (a) Keep and retain for a period of 2 years from the date of this Decision and Order permanent written records of its hiring and referral operations which will be adequate to disclose fully the basis upon which each referral is made and, upon the request of the Regional Director for Region 22, or his agents, make available for inspection, at all reasonable times, any records relating in any way to the hiring and referral system. (b) Submit four quarterly reports to the Regional Director, due 10 days after the close of each calendar quarter subsequent to the issuance of this Decision and Order, concerning the employment of the above- named employees and other nonmember applicants subsequently found to have been similarly situated. Such reports shall include the date and number of job applications made to Respondent, the date and number of actual job referrals by Respondent, and the length of such employment during such quarter. (c) Place the referral registers, for a period of 2 years, on a table or ledge in the hiring hall for easy access and inspection by the applicants as a matter of right, upon completion of each day's entries in such registers. (d) Make whole each of the above-named employ- ees, and all other nonmember applicants who were similarly situated, for any loss of earnings suffered by reason of the discrimination practiced against them, in the manner set forth in the section of this Decision entitled "The Remedy." 14 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 (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all records, reports, work lists and other documents necessary to analyze the amount of backpay due under the terms of this Decision and Order. (f) Post at all places where notices to employees, applicants for referral, and members are posted copies of the attached notice marked "Appendix A."1 4 Copies of said notice, on forms provided by the Regional Director for Region 22, after being duly signed by the Local's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Union to insure that said notices are not altered, defaced, or covered by any other material. (g) Cause, at its expense, the attached notice marked "Appendix A." 15 to be printed in a newspa- per of general circulation in Perth Amboy, New Jersey. (h) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps Respondent Local 373 has taken to comply herewith. B. Respondent International Association of Bridge, Structural & Ornamental Ironworkers, Local 45, Jersey City, New Jersey, its officers, agents, and representatives, shall: I. Cease and desist from: (a) Causing or attempting to cause the separate employer-members of Building Contractors Associa- tion of New Jersey, or any other employer, to discriminate against any of the following employees: Marcel Bizien Carl Clarino Patrick Clarino Adam Lerie James Moniello John Moniello Michael Moniello Jack Tagliareni or any other employees, in violation of Section 8(a)(3) of the National Labor Relations Act because of their lack of membership in Local 45. (b) In any other manner restraining or coercing employees or applicants for employment in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the purposes of the National Labor Relations Act: (a) Keep and retain for a period of 2 years from the date of this Decision and Order permanent written Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." II See fn. 14, supra. 507 DECISIONS OF NATIONAL LABOR RELATIONS BOARD records of its hiring and referral operations which will be adequate to disclose fully the basis upon which each referral is made and, upon the request of the Regional Director for Region 22, or his agents, make available for inspection, at all reasonable times, any records relating in any way to the hiring and referral system. (b) Submit four quarterly reports to the Regional Director, due 10 days after the close of each calendar quarter subsequent to the issuance of this Decision, concerning the employment of the above-named employees and other nonmember applicants subse- quently found to have been similarly situated. Such reports shall include the date and number of job applications made to Respondent, the date and number of actual job referrals by Respondent, and the length of such employment during such quarter. (c) Place the referral registers, for a period of 2 years, on a table or ledge in the hiring hall for easy access and inspection by the applicants as a matter of right, upon completion of each day's entries in such registers. (d) Make whole each of the above-named employ- ees, and all other nonmember applicants who were similarly situated, for any loss of earnings suffered by reason of the discrimination practiced against them, in the manner set forth in the section of this Decision entitled "The Remedy." (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all records, reports, work lists and other documents necessary to analyze the amount of backpay due under the terms of this Decision and Order. (f) Post at all places where notices to employees, applicants for referral, and members are posted copies of the attached notice marked "Appendix B." 16 Copies of said notice, on forms provided by the Regional Director for Region 22, after being duly signed by the Local's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reason- able steps shall be taken by the Union to insure that said notices are not altered, defaced, or covered by any other material. (g) Cause, at its expense, the attached notice marked "Appendix B"1 7 to be printed in a newspa- per of general circulation in Jersey City, New Jersey. (h) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps Respondent Local 45 has taken to comply herewith. "6 See fn. 14, supra. I7 See fn. 14, supra. APPENDIX A NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause or attempt to cause the employer-members of Building Contractors Asso- ciation of New Jersey, or any other employer, to discriminate against any of the following employ- ees: Henry Arminaus Paul Bongard, Jr. Frank Castellano Jeffrey Coleridge Philip Connell William Crawford Joseph Dolinich Edward Farley James Fox John Krusis Thomas McCloskey Donald McMahon Frank O'Neill Arthur Smith or any other employees, in violation of Section 8(a)(3) of the National Labor Relations Act because of their lack of membership in Local 373. WE WILL NOT in any other manner restrain or coerce employees or applicants for employment in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. WE WILL keep and retain for a period of 2 years permanent written records of our hiring and referral operations which will be adequate to disclose fully the basis upon which each referral is made and, upon the request of the Regional Director for Region 22, or his agents, make available for inspection, at all reasonable times, any records relating in any way to the hiring and referral system. WE WILL submit four quarterly reports to the Regional Director, due 10 days after the close of each calendar quarter subsequent to issuance of the Board's Decision and Order concerning the employment of the above-named employees and those nonmember applicants subsequently found to have been similarly situated. Such reports shall indicate the date and number of job applications made to us, the date and number of our actual job referrals, and the length of such employment during such quarter. WE WILL place the referral registers, for a period of 2 years, on a table or ledge in our hiring hall for easy access and inspection by the applicants as a matter of right, upon completion of each day's entries in such registers. WE WILL make whole each of the above-named employees, and all other nonmember applicants who were similarly situated, for any loss of 508 IRONWORKERS, LOCAL 373 earnings they may have suffered by reason of our discrimination against them. INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL & ORNAMENTAL IRONWORKERS, LOCAL 373 APPENDIX B NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause or attempt to cause the employer-members of Building Contractors Asso- ciation of New Jersey, or any other employer, to discriminate against any of the following employ- ees: Marcel Bizien Carl Clarino Patrick Clarino Adam Lerie James Moniello John Moniello Michael Moniello Jack Tagliareni or any other employees in violation of Section 8(a)(3) of the National Labor Relations Act because of their lack of membership in Local 45. WE WILL NOT in any other manner restrain or coerce employees or applicants for employment in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. WE WILL keep and retain for a period of 2 years permanent written records of our hiring and referral operations which will be adequate to disclose fully the basis upon which each referral is made and, upon the request of the Regional Director for Region 22, or his agents, make available for inspection, at all reasonable times, any records relating in any way to the hiring and referral system. WE WILL submit four quarterly reports to the Regional Director, due 10 days after the close of each calendar quarter subsequent to the issuance of the Board's Decision and Order, concerning the employment of the above-named employees and those nonmember applicants subsequently found to have been similarly situated. Such reports shall indicate the date and number of job applications made to us, the date and number of our actual job referrals, and the length of such employment during such quarter. WE WILL place the referral registers, for a period of 2 years, on a table or ledge in our hiring hall for easy access and inspection by the applicants as a matter of right, upon completion of each day's entries in such registers. WE WILL make whole each of the above-named employees, and all other nonmember applicants who were similarly situated, for any loss of earnings they may have suffered by reason of our discrimination against them. INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL & ORNAMENTAL IRONWORKERS, LOCAL 45 DECISION STATEMENT OF THE CASE THOMAs A. RIccl, Administrative Law Judge: A hearing in this proceeding was held at Newark, New Jersey, on May 24, 25, 26, and 27, and on June 7, 1976, on complaint of the General Counsel against three locals - Nos. 373, 45, and 483 - of the International Association of Bridge, Structural & Ornamental Ironworkers, together here called Respondents or the Unions. The final complaint, following several preliminary ones, and upon which the hearing was predicated, issued on April 27, 1976, and rests upon seven separate charges filed. The essential issue underlying the entire case is whether, in their operation of exclusive referral hiring halls, the Respondents unlawfully caused employers in their jurisdictional areas to discriminate against nonmembers of the pertinent locals in their employment opportunities, and thereby violated Section 8(b)(IXA) and (2) of the Act. The charges were filed on various dates beginning July 24, 1975, and ending April 7, 1976. With respect to Respondent Local 373 the complaint lists 16 employees - all individual ironworkers - as having suffered illegal discrimination at the hands of that local; it lists eight additional individuals, again all ironworkers, as having been prejudiced illegally by Local 45 in its hiring hall; and finally, the complaint names four ironworkers, all nonmembers of Local 483, as having been unlawfully refused referral to work by that union. Briefs were filed after the close of the hearing by the General Counsel, Respondents, and the Charging Parties. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGs OF FACT 1. THE BUSINESS OF THE EMPLOYERS Building Contractors Association of New Jersey, a State of New Jersey corporation, is an association of separate employers engaged in the business of construction in the State of New Jersey. For years these members have authorized the Association to bargain collectively with unions representing employees of the individual members on a multiemployer basis, and over the years the Associa- tion has, on behalf of its members, negotiated and signed 509 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collective-bargaining agreements with Respondent Locals 373, 45, and 483. In the normal course of their business operations the members of the Association have, during the past 12 months, and therefore a representative period, caused construction materials and other goods to be brought from out-of-state sources to their construction projects in the State of New Jersey valued in excess of $50,000. 1 find that the Association is an employer engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED I find that Locals 373, 45, and 483, of the International Association of Bridge, Structural & Ornamental Ironwork- ers, are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES 1 In this case there is no dispute as to the pertinent facts, which prove conclusively on their face the widespread unfair labor practices alleged in the complaint. Respondent Locals, through their council, called Northern New Jersey District Council of Ironworkers, have long been in contractual relations with the multiemployer group called Building Contractors Association of New Jersey. The contract provides in the usual way for hiring halls to be operated by each of the component locals, five of them, including these three Respondents. Also according to the contract and according to law, all ironworkers seeking employment are to be registered at the hall and referred out to job assignments in rotation as requests for workmen are received from separate employers. In further keeping with the law, the arrangement is that the locals will not assign their members to work out of turn; i.e., in preference to other ironworkers who sign the referral registers ahead of them. It is that conduct, of sending members - of Local 373 and 45 - to fill employer requests despite the fact nonmembers had signed into the halls before them that the complaint calls illegal and violative of the statute. By so sending its own members to work before nonmembers sitting in the hall and waiting their proper turn, the union causes the employer, who has contractually agreed to put people to work only when coming out of the hiring hall, "to discriminate against an employee in violation of Subsec- tion 8(a)(3)" in the words of the statute, and thereby itself violates Section 8(b)(2). See International Brotherhood of Boilermakers, Iron Shipbuildings, Blacksmiths, Forgers and Helpers Local Lodge No. 169, AFL-CIO (Riley Stoker Corporation), 209 NLRB 140 (1974). A number of contentions articulated in defense will be considered below. Respondents called no witnesses and offered no evidence at all. They rested upon conclusion of the General Counsel's and the Charging Parties' case. A. The Referral Registers The proof, showing that both Locals 373 and 45 did precisely what is charged in the complaint, consists of At the close of the hearing the General withdrew almost all of the complaint allegations directed to Respondent Local 483; the single remaining minor charge against that local will be disposed of at the end of written referral registers made by Respondents' agents themselves. They were produced at the hearing by Respondents in the original and were received in evidence. You look at a page, run your finger down the list of numbered signatures, and see one Local 373 member after another who signed the book after William Crawford on January 20, 1975, and was sent out to work before January 29, when his name was called out for the first time. For purposes of making clear at the outset the plain nature of all evidence, I find, as a first instance, that during the period January 21 to 28, 1975, inclusive, Respondent Local 373 violated Section 8(bX2) and (IXA) of the Act 15 times by sending 15 of its members to work, although each had signed into the hiring hall after William Crawford, who designated himself thereon as a member of Local 399. The same kind of pictures appear in the registers of Local 45, its members sent out to work while nonmembers who had signed in ahead of them were ignored. And this includes, with respect to Local 45 also, plain members with no purported designation. As will appear, both Respon- dents also committed a great many unfair labor practices where the conclusions rest on inference (Radio Officers' Union of the Commercial Telegraphers Union, AFL, [A. H. Bull Steamship Company] v. N.LR.B., 347 U.S. 17), but at this point there is no need for implied factual findings of illegality. Actually, Local 373 sent 42 of its members, all of whom signed that register after Crawford, out to work assign- ments during the 9-day period January 21 through 28, all this while ignoring the Local 399 registrant. Of the 42 in the book, 5 were labeled foremen, 14 were labeled stewards, and 6 called replacements. As to the 15 whose out-of-turn assignement proves the 15 unfair labor practices thus far found, there is not even a pretense that they fitted any category such as might excuse the illegal acts shown. In his brief, counsel for Respondents called these 15 unquestion- able unfair labor practices, plus other like complete violations of the statute shown in the Union's records by the hundreds "mistakes." Plain human experience makes this defense unacceptable. The first charge in this entire consolidated proceeding was filed in July 1975 against Local 373. The use of these designating words - foreman, steward, replacement, etc., - takes on added meaning if the register of January 1975 and that of November through December 1975, again as illustration of the whole, be compared in this respect. One of the exhibit referral books covers the period November 11, 1975, to January 13, 1976. During those 2 months 600 ironworkers signed the book and the Local 373 agents in charge referred to work 200 members of their own local. Of these, 106 were marked "steward," 50 were marked "foreman," 43 were marked "request," and only one name appears blank! In contrast, during the 9-day period a year earlier - 156 of 42 Local 373 were referred to work as nothing more than plain ironworkers. Given the contrast between January and December of the same year, and given the filing of the charge between the first and second numerical pictures, a rational mind asks: What are the this decision. The findings of facts and conclusions of law which follow are therefore concerned only with Locals 373 and 45. 510 IRONWORKERS, LOCAL 373 probabilities that such total designation of Local 373 members as special cases of one kind or another was tied to their common local union membership, and not to the mere assertion in the registers, unsupported by any objective proof, of special individual status? As to Local 373, referral registers were put in evidence for the period January 15, 1975, through June 10, 1976, and for Local 45 for the period February 11, 1975, to June 10, 1976. The first group consists of 10 books, each with 50 numbered pages, each page with 16 sequentially numbered employee signatures. The Local 45 records consist of two volumes, each with 50 pages, and each page also with 16 names. Crawford is I of 16 ironworkers named in the complaint as having suffered illegal discrimination in direct conse- quence of illegal operation of the hiring hall by Local 373. All 16 of these are members of ironworker locals other than Local 373, all are experienced ironworkers - some in the trade as long as 10 or 20 years, and all have been shaping up - i.e., registering for work - in the Local 373 hiring hall for a number of years. The complaint also alleges that other hiring hall registrants, also members of locals other than Local 373, although not identified in the complaint and who did not file charges, suffered similar illegal discrimination in the operation of this hiring hall. As to Respondent Local 45, the complaint names eight individu- al ironworkers, again also not members of Local 45, as having been illegally passed over out of turn in work assignments in the operation of the Local 45 hiring hall. For purposes of considering certain defense contentions, it suffices at this point to note that the referral registers in question show violations of Section 8(bX2) by the two Respondents totaling in the hundreds. Each of the named discriminatees, at least, signed into the hiring halls a number of times, and the registers show multiple violations occurring after most of the times each of them signed their names to the registration books throughout the entire period. The extent, the multiplicity, the flagrance of the unfair labor practices shown without question in this case are so great that there is an inescapable tie, even at this stage of the Board proceeding, between what unfair labor practice findings ought be made and what remedial action must be taken forthwith. In fact, because it is not possible here to report and specify each and every instance when a Local 373 or Local 45 man was unlawfully preferred to the outsiders, the defense arguments - discussed below - are intentionally aimed at frustrating simple handling of the case before the Board and thereby inordinately delying and perhaps even making impossible eventual correction of an intolerable continuing situation. Some comments are therefore in order, so that the purpose of the Act - always the correct objective of all Board proceedings - not be lost in the shuffle. The Local 373 registers show the dates when each of the 16 charging parties registered, the date his name was called for referral in the hiring hall following each of his particular signings in, and the precise dates - with names, skills, employers, when the great number of Local 373 members, each of whom had signed after the outsider, were referred to work ahead of him nevertheless, always prima facie proof of an unfair labor practice. The following chart, set out here for the purpose of illustration, is an extract from the register of the picture it reveals as to what Local 373 did after every one of the many signings in by Charging Party Jeffery Coleridge. JEFFEREY COLERIDGE LOCAL 373 MEMBERS REFERRED OUT-OF-TURN Date Date Signed in Referred Marked Foreman Marked Steward Marked Marked Replacement Returned Marked No Requested Mark 3/11/75 4/9/75 4/17/75 5/9/75 6/11/75 6/26/75 7/17/75 7/25/75 8/8/75 9/23/75 10/8/75 10/16/75 10/27/75 12/12/75 10 7 5 12 14 14 5 6 6 3/19/75 4/15/75 4/23/75 6/10/75 6/25/75 7/15/75 7/24/75 8/7/75 8/19/75 10/7/75 10/15/75 10/23/75 11/14/75 12/30/75 17 9 3 13 13 13 7 7 10 20 1 8 5 8 26 3 14 1 1 1 2 1 4 3 3 1 2 1 1 3 1 3 3 7 2 1 15 9 4 3 7 3 6 1 3 10 2 3 1 1 3 4 511 512 1/23/76 2/18/76 4/14/76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2/17/76 3/22/76 4/27/76 4 19 27 29 9 11 4/28/76 5/29/76 5 23 156 237 Comparable to the case, already mentioned, of only one of the registrations by Crawford in January 1975, here the illustrative chart shows Respondent sent 551 of its members to work out of turn ahead of Coleridge, as a total picture, after the 18 times he registered in the hiring hall. Inasmuch as next to the names of 84 of these particular 551 members of Local 373 there is no mark, and therefore no claim they were on any basis entitled to preference, I find a separate violation of Section 8(bX2) with respect to each of these 84 referrals. As part of his brief submitted after the close of the hearing, the General Counsel attached voluminous statisti- cal analysis of all of the referral registers of both Local 373 and 45, showing, as does the above chart for Coleridge, every out-of-turn referral made by Respondents of their members following the many signings in by each of the 16 outsiders as to Local 373, and by each of the 8 outsiders with respect for Local 45. The summary consists of 234 pages, each page listing about 30 members of Respondents as having been so preferred. If in overall appraisal of this total statistical picture, the continuing registrations of each of the 24 outsiders, be viewed in isolation from the rest of the case, it would appear that Respondents violated the statute about 7,000 times; i.e., 234 times 30. But the records also show that during many periods there was more than one outsider - maybe two, three, or more - whose name was ahead of the preferred member. This means that a great many particular out-of-turn referrals are listed under the statistical picture pertaining to more than one of the prejudiced nonmembers. Can it be said that when Smith, a Local 373 member, was one day referred out of chronologi- cal order Respondent violated the statute twice, or three times, instead of once? In a case of this magnitude, reflecting so pervasive and fixed a determination to disregard the law, it hardly matters. It would be a mistake to belabor such details once it has been found that Respondents, acting as here, have violated the statute at least hundreds of times, no matter how the numbers be added. But while this question may smack of philosophical play in terms of how many unfair labor practices were committed, it takes on a very real and substantive meaning when it comes to deciding just who was hurt by the illegal conduct, and just how much money earnings each of the prejudiced ironworkers lost in consequence. In short, how do you remedy this sort of continuing misconduct, to say nothing of putting a stop to it? When a member of the local, Smith, is referred out of order, which two outsiders - Brown and Jones - who signed the register before him and are still waiting for work lost how much because of the discrimination - Brown? Jones? both? The very unprece- dented complexity revealed by this single example, multi- plied hundreds of times as it is here, dictates a rational overall look at both what findings of illegal conduct are warranted and what thought should be given now to the appropriate remedy. 1 1 2 20 4 B. Defense 3 15 50 1 2 6 4 84 I. Due process Counsel for Respondents protests against the entire proceeding on the ground that his clients are being denied "due process" because they have not been told what "the exact violations alleged" are, because no proof of wrongdo- ing "was put into evidence," because the accused locals were not informed of "the exact nature of the charges" they are "called upon to defend." In a very real sense, the "truth" in this case, the "evidence" of wrongdoing was brought to the hearing by Respondents themselves. There certainly is no surprise, and there certainly is no failure to show the proof to Respondents. The referrals, without end, of union members who signed and dated the books after the nonmembers, are recorded in the handwriting of Respondents' business agents, the men who run the hiring halls. To say that they must be shown what they themselves did, after they themselves brought their own records to court, is no more than an attempt to make a mockery of both reason and the rules of evidence. I find no merit in this defense argument. 2. Consent decree In 1972 a consent decree issued out of the United States District Court for the District of New Jersey in an action brought by the United States against, among other defendants, the Northern New Jersey District Council of Ironworkers and its five locals, including the three Respondents, to enforce Title VII of the Civil Rights Act of 1964. Included in the court decree are strictures against the halls to the effect that, in the operation of their hiring halls, they not discriminate against registrants for job referrals on account of "race, creed, color, or national origin." In detailing the exact procedures according to which the hiring halls must be run, the decree then expressly incorporates a number of the precise applicable provisions spelled out in the Ironworker Council's collective-bargain- ing agreement with the Building Contractors Association. Among these, and pertinent here, is the understanding that "no ... applicant shall be ... denied referral because he is not a union member." And, of course, the hiring halls remain even today subject to supervision and scrutiny of the District Court to prove compliance with its every provision. I find no merit in the conclusionary, all-embracing statement that because Respondents must operate their hiring halls in conformity with the civil rights aspect of this consent decree, the National Labor Relations Board is precluded from testing their referral registers after a charge is filed alleging violations of the proscriptions of the National Labor Relations Act. I can conceive of a case where John Smith was passed over on January I in favor of Joe Brown who registered on January 2, and where a civil court has ordered the union to send Brown out right away, IRONWORKERS, LOCAL 373 now, in affirmative action - to use a modern phrase. The Board might well yield in that specific situation, preemp- tion or no preemption. But when a District Court orders a union not to discriminate against black or Spanish people, and even to do something extra to balance the prejudices of the past, it does not follow that respondents in Board proceedings may therefore utilize the hiring hall to monopolize virtually all available work in an entire geographical area in flagrant flouting of the clear prohibi- tions of this Federal law. The argument rests fundamental- ly upon poor logic anyhow. It does not follow from the fact that you may not discriminate against blacks, etc., that you may therefore discriminate against members of another local union. And this is what the documentary evidence proves time without number in this case. But even apart from all this, the decree itself literally restates the provisions of Section 8(b)(2) of the Taft-Hartley Act. The first caveat on the subject of "referrals" in the consent decree reads: The referral system shall be operated on a nondiscrimi- natory basis without regard to membership or non- membership in the Union, and there shall be no discrimination against any person by reason of race or color. In his brief the General Counsel correctly paraphrases this defense as an attempt to shift the burden of proving an asserted affirmative defense to the prosecution side of the case. The Union's referral registers are an overwhelming prima facie case if there ever was one - violations of Section 8(b)(2) without end for months and continuing today. The court decree says the Union could send members of minority groups out to work even before others who signed in ahead of them. Now the Union says: "We had, and we have a right to do that, Taft Hartley or not. Prove to us and to the Board that we did not - i.e., prefer minority people - in each and every one of the hundreds of instances where our records show preference to our own members." It is a mistaken notion, or defective reasoning, to say that when one party has the burden of proving the positive, you assume the positive so long as the opponent fails to disprove the positive, or to prove the negative. Moreover, there is the determinative fact that the Respon- dents here do not even claim the positive to be true. While saying it had a right to send blacks to work out of turn, Local 373, as well as Local 45 for that matter, did not even make the statement that what appears as pure discrimina- tion against nonmembers was in fact positive discrimina- tion in favor of minorities. It could hardly make the statement. Of the 200 Local 373 members referred to work between November 17, 1975, and January 13, 1976, only 12 were black; and of the 42 Local 373 members referred out to work from January 21 to January 28, 1975 - all - The registers also show that in addition to L.ocal 373 or Local 45 members reterred out of turn with no mark, or marked "foremen." "steward." etc.. still others were also sent out to work out of turn. with respect to the dates when the Charging Parties signed the registers The underlying collective-bargaining agreement provides that each Ironworker. ,hen registering for work, must indicate his particular expeltise within the trade. This means he marks himself for the following kinds of work or skill: connecting work. structural work, ornamental work, machine rigging, tinishinig work. sheeting. fencing. rod. swelding. welding structural and selding rods preferred against Crawford's earlier registration - no more than three were black! I view all of Respondents' talk about that consent decree as amounting to no more than an opening statement that they intended to prove an affirmative defense to defeat the complaint. They left it at that, and came forth with nothing in the form of evidence or proof. The record stands - an absolute prima facie case upholding the complaint - as though counsel for Respondents had not spoken at all about the consent decree. If Local 373 had proof that 15 of its members who were improperly assigned ahead of Crawford in January 1975 - only 3 of them black - were in fact so favored as a form of affirmative action to prefer minority groups in compliance with the court decree - and never mind Section 8(bX2) of the Act - all it had to do was come forth with proof. It did not. 3. Foremen, stewards, etc. The argument that the locals had a right in certain circumstances to prefer particular ironworkers, even if they happened to be members of Respondents, and that therefore the General Counsel has not satisfied his primary burden of proof, is made a second time - albeit limited to less than all the local men who were referred out of turn - in a reference apart from the court decree. The contract between the Ironworkers Council and the Contractors Association deals with referral of foremen, stewards, replacements, and employees expressly requested by name by a particular employer, and the General Counsel concedes that ironworkers who met such special qualifica- tions spelled out in the collective-bargaining agreement could be referred out of turn. I find this defense argument also unconvincing in the light of the total record. But the interest of clarity requires the finding now that, even assuming, contrary to my ultimate conclusions, there was merit in this defense position as to some of the preferred members of Local 373 or Local 45, a very substantial number were illegally favored without question because as to them the defense assertion cannot possibly apply. No mark of any kind was ever placed near the names of perhaps hundreds of preferred local men. As the months went on, starting early in January 1975 before any charge was filed, continuing into the second half of the year with more charges being filed, and then through the early part of 1976 as the hearing approached, more and more of the preferred members were designated foremen, stewards, etc. Indeed, there came a time when practically every member of Local 373 was recorded as in one special category or another. The inference that this progressive pattern tells a revealing story of deceit is inescapable. 2 In an ordinary unfair labor practice proceeding before this Board, once it had been found that a respondent When registrants are referred out in response to requests received from contractors. they can only go for work within their indicated skills. In each and every instance where the preferred assignment of a Local 373 or Local 45 member is shown in the General Counsel's appendixes it means a man as shown on the fact of the referral register was sent to do the precise kind of work for which the nonmember had registered before him. All of those members of Respondents who. although referred out of turn, appear (Continued) 513 DECISIONS OF NATIONAL LABOR RELATIONS BOARD committed hundreds of separate violations of the same section of the statute, it really is immaterial whether or not it also committed more, even if the additional ones themselves run into the further hundreds. But there are significant and important aspects of this case that demand special consideration. In a very substantial sense the question of whether or not Respondents violated the statute is intimately interwoven with the question of the appropriate remedy. The unfair labor practices already found reveal an unmistakable and fixed determination in these locals to violate the statute flagrantly and persistent- ly. The pattern of misconduct gives promise only of continued indifference to all legal proscriptions. It is appropriate therefore to put at rest the claim that because the contract and the law do permit out-of-turn assignments of a local union member as a steward or a foreman, etc., Local 373 or Local 45 can simply continue to mark all of its members with such one-word titles and under that cover send out all its members while ignoring all other regis- trants. As noted, from November 11, 1975, to January 13, 1976, Local 373 marked 199 of the 200 of its members assigned in such fashion. A numerical breakdown of the total Local 373 registers, spanning a 15-month period, shows that it sent 1,048 of its members to work as "stewards," while putting the title on only 383 nonmem- bers. This disparate treatment bespeaks a double message when coupled with the fact that during the same period more than twice as many nonmembers signed the registers as did Local 373 members - 5,210 compared to 2,410. But the contract provides only that "senior, experienced applicants" may be referred out of chronological sequence to work as stewards. So far as this record shows, the outside applicants - the Charging Parties for the least - were as experienced as the bulk of the local members. There is no basis for presuming that the ratio of experienced ironwork- ers between the two groups was 6 to I in favor of the local members. But that is precisely what the relative number of steward referrals shows against the total registration. As in the case of the civil rights minority group argument, here the locals argue they had a right to prefer experienced men even if they were members. But it offered nothing even tending to justify such a meaningful dispro- portion in its selection. It may well have had objective, nondiscriminatory basis for the out-of-turn selection of some of these, but surely not for so large a number. The applicable rule of reasoning is called the law of concomi- tant variations.3 The revealing numerical picture applies with equal force where Local 373 members were marked "foreman" when referred to work out of chronological order. Again, the contract provides that when a contractor "requests a specific person to serve as a foreman on a job," that man could be sent out so long as his name was on the register, no matter when he signed in. Can it be presumed - absent any evidence in support - that so many Local 373 members were requested and so few nonmembers? Refer- ence has already been made to the register for November to have been sent to do the kind of work for which the Charging Parties did not then register, have been ignored, both in the appendixes and in discussions in this Decision. I The cumulative indications of false labeling take many forms. Among 17, 1975, to January 13, 1976, where 50 of the 200 Local 373 men sent out were marked "foreman." More glaring is the picture shown in the immediately following register - that for January 13, 1976, to March 18, 1976. Here, 784 ironworkers signed the book; of these about 267 were Local 373 members and about 517 nonmembers. Fourteen Local 373 members were not in the hall when called, and therefore were marked "absent." Of the remaining 253, all sent out, the record shows clearly 107 were marked "steward," 75 were marked "foreman," 57 were marked "requested," and about a dozen were marked ambiguously. Can it be, again, that all Local 373 men were "senior, experienced men," or requested by employers to act as foremen, or requested by such a diversity of contractors for unexplained personnel attachment? I think not. I find that a substantial number of Local 373 members who are referred to work marked "stewards," "foremen," or "requested" - and it is not necessary to fix the precise number - were not specially qualified, or requested, and that when Local 373 sent them out it violated the statute in the vast majority of such cases. But what most supports this finding of repeated unfair labor practices and points to hidden purpose - as distinguished from nondiscriminatory objective selection - is the further fact that during the January 13 to March 18 period alone, of the 75 Local men called "foremen," all but 2 were referred to work out of chronological order - i.e., while men who had signed in ahead of them sat and watched in the hall. In significant contrast, all but 4 of the 22 nonmembers who were marked "foremen" on registers went to work only when their names, as listed, entitled them to assignment. The pattern holds with respect to "stewards" referred during the same 2-month period. There were 93 men marked "steward" and 69 marked "nonmembers." But, of the 69 nonmembers only 3 were referred out of chronologi- cal order, while of the 93 Local 373 men, all but I were given preferential assignment; i.e., out of chronological order. C. Local 45 All of the foregoing considerations apply with equal pertinence to what is revealed in the referral registers of Local 45. The defense argument relying on the minority rights consent decree, the contractual privilege of employ- ers to request special referrals for foremen and even for any ironworker personally desired by a contractor, and the right of a union to select men to serve as stewards are addressed with respect to Local 45 exactly in the same words as they are advanced to explain away the primafacie case proved against Local 373 by its registers. For the period February 11, 1975, to June 10, 1976, about 1,526 ironworkers signed into the Local 45 hiring hall, according to its records; of these, only 45 are marked "black." The percentage ratio between black and white cannot begin to justify the extent of out-of-turn preference shown here for Local 45 members, to say nothing of the fact there is no the members it sent out to work as stewards were approximately 65 Local 373 apprentices and trainees. On the face of the registers, these could not have fallen in the special category of "senior, experienced men." 514 IRONWORKERS, LOCAL 373 evidence - offered or claimed - that color was the reason for the proven discrimination pattern. As he did with the Local 373 registers, the General Counsel prepared, and attached to his brief, a statistical summary taken from the Local 45 referral registers as they reveal out-of-turn referrals of Local 45 members after many instances when the eight nonmembers named in the complaint signed into this hall. The following chart sums up a significant part of the information set out in the statistical picture: LOCAL 45 MEMBERS REFERRED OUT-OF-TURN TO THE PREJUDICE OF THE NONMEMBERS PREVIOUSLY SIGNED IN NONMEMBER TIMES REGISTERED NO. MARK AFTER NAMES MARKED "REQUESTED" Jack Tagliarini John Moniello James Moniello Michael Moniello Carl Clarino Patrick Clarino Marcel Bizien Adam Lerie I cannot and do not believe that so many members of the local, all repeatedly given deliberate preference in work assignments over the nonmembers who signed in ahead of them, could possibly have been specifically requested by the great number of employers that must have been involved. But again, as to all of those Local 45 men next to whose names there is no distinguishing mark at all, it was a pure violation of Section 8(b)(2) of the Act by Respondent Local 45 to have referred them. How many separate violations were committed? Here too there is an overlap shown in the registers of Local 45. But for the least there occurred 109 separate unfair labor practices, for that many unmarked members were preferred to Adam Lerie after he signed in. As in the case of Respondent Local 373, I find that Respondent Local 45 violated Section 8(b)(2), as alleged in the complaint, at least 109 times, to the detriment of the 8 employees named in the complaint. D. Further Contentions by the General Counsel I. All 16 ironworkers named in the complaint as having suffered illegal discrimination in the operation of the Local 373 hiring hall applied for membership in that local in 1975 or 1976 and were refused. Likewise, all eight of those, also named in the complaint, who were hurt illegally by Local 45, were denied membership applications filed with that Respondent. The General Counsel asks for a finding that an additional reason why the two Respondents referred their members out of turn ahead of the named individuals was retaliation for having presumed to apply for member- 4 International Brotherhood of Boilermakers. Iron Shipbuilders, Block- smiths, Forgers and Helpers Local Lodge No. 169. AFL-CIO (Riley Stoker Corporation), 209 NLRB 140(1974). ship. Clearly, Respondents did not want these men in their locals, and I suppose this is evidence of dislike for them in the eyes of Respondents' officers. But it would add nothing to the strength of the affirmative evidence to make such a further finding. If a union ignores members of other locals who timely register in the hiring hall and by such deliberate denial of their statutory rights to employment under an exclusive hiring hall arrangement commits a complete unfair labor practice 4 - as already found in this case - to point to other indications of an intent to violate the statute in the very same illegal act is no more than adding color. 2. Another assertion by the General Counsel at the start of the hearing was that he intended to prove Respondents favored friends and relatives of their mem- bers against the same named individuals. There is no supporting evidence to warrant such a further factual finding. 3. Still another element of proof of illegal discrimina- tion, again as asserted by the General Counsel, is that when they did refer nonmembers albeit after first favoring the Local 373 or Local 45 men, Respondents sent the strangers to jobs of very short duration. And some evidence was offered that does prove many assignments to the outsiders were indeed for only I day, perhaps 2 or 3 days. The W-2 forms used for this purpose also show, however, that on other occasions the outsiders went to work that lasted much longer. But of greater significance, on this point, is the further fact that there is no indication that could support any meaningful finding that the local men were in fact sent to longer assignments. There is proof, in another form, showing without question that Local 373 members OTHER MARKS 7 6 5 4 5 4 3 7 41 42 39 51 36 9 52 109 46 49 51 39 49 12 61 55 20 24 22 16 24 11 27 15 515 DECISIONS OF NATIONAL LABOR RELATIONS BOARD earned much more during the years 1975 and 1976 than did the Charging Parties. But to say that the discriminatees, in addition to having been sent out less frequently, as shown by the referral registers, were also sent out to less desirable jobs would require inquiry into what kind of jobs were given the local union members. Absent such evidence there can be no comparison between the two groups. 4. As to Local 45, there is another form of documentary evidence that does add to the quantum of affirmative proof supporting the basic complaint allegation - i.e., that that local really did favor its members without regard to the fair distribution of jobs theoretically guaranteed by the hiring hall arrangement. This evidence does not go to intent or reason for discrimination, but rather to the fact itself of discrimination. On all the projects where work covered by the contract between the Ironworkers Council and the Employer Association is performed, there is a steward who makes a weekly report to the Ironworkers Union Pension Fund. These are called steward reports, and in each instance show the names of every employee on the job, the local union of which he is a member, and the number of hours worked during that week. Perhaps a thousand of these steward reports were received in evidence, for the period January 1975 to June 1976. As to these exhibits, still original records maintained by Respondents, the General Counsel prepared a third statistical picture, also attached to his posthearing brief. It will be recalled that the 8 outsiders who signed into the Local 45 hiring hall, together registered a total of 41 times. The steward reports show that in just about each and every such instance members of Local 45, who signed the registers after the outsiders, worked on projects covered by the collective-bargaining agreement, not only as assigned out of turn from the hall, but to a much greater frequency on jobs that are not mentioned in the registers at all. And they performed this work - detailed without end as to day and place - during the very period when their names appeared on the registers recording them as ostensibly waiting for work. As the General Counsel asserts, the registers of Local 45 are false. The collective-bargaining agreement does provide an employer may request "an applicant" out of the hall by name. But these men went from one job to another - always as reported by the stewards - without their names ever going back on the register. The local is required to keep a record of all such requests by employers for "applicants," but although contending all these members "had been requested" Respondent did not produce its record in this regard. Again, these steward reports are not necessary to help prove the essential complaint allegation, for the referral registers - even in the case of Local 45 - more than suffice to establish continuing, repetitive, and multitudi- nous violations of the statute by Local 45. E. Joseph Bucci Joseph Bucci's name appears in the complaint as an alleged discriminatee but without specific reference to a particular local respondent. He finished high school in June 1975 when 18 years old, applied for entry into the Ironworkers Union Apprenticeship Program, failed the "entrance exam" and was so notified in November. He then received a notice advising him he could appeal the ruling but he did not do so. At the hearing he testified that he went to the Local 45 hiring hall on December 1, 1975, where Babe Venner, business agent of Local 45, asked who was he; when he answered "Joe Bucci," the business agent asked did he have an Ironworkers book. Bucci said no, and then, according to his testimony, the business agent "closed the glass window and that was it." Bucci never again thereafter spoke to any union agent. I will recommend dismissal of the complaint as to this man. There is no grounds for holding he was entitled, considering all the applicable provisions of the relevant collective-bargaining agreement, to register in this hiring hall. F. William O'Neill This man's name appears in the complaint as having been illegally referred out of the Local 483 hiring hall. There were, at the start of the hearing, three other ironworkers named in the complaint as having been denied proper referral by that Respondent - Wilkens, Philipchuk, and Clark. As to the last three, the General Counsel withdrew their names from the case at the close of his case in chief. O'Neill's story is the only remaining part of the case against Local 483. He said he went to the union hall on August 25, 1975, because a certain Mr. Conklin, owner of a company called Senia Construction, had told him that he, Conklin, would arrange, or had arranged, to have some agent of the employer request O'Neill's special referral to the job. The witness said he sat in the hall that day but was not sent to that particular job. He was referred out to work 3 days later. This is the totality of the testimony, or proof of any kind, said to establish that Local 483 did anything illegal with respect to this man. It is the purest hearsay and nothing else. I shall recommend dismissal of the complaint as to William O'Neill also. G. Frank O'Neill and Jack Talgliareni Frank O'Neill, a member of Local 158 of the Ironwork- ers International, registered at the Local 373 union hall 16 times during 1975 and the first half of 1976. He was subjected to the same discriminatory treatment as were the other nonmembers of Local 373 - about 300 names of Local 373 men appearing on registers of having signed in after him but being referred out first. When his name was called in the hall following his 16 registrations - although always belately - 13 times he was present and accepted assignments, where he went and worked. Three times he was absent. His record of absences is not abnormal, for absences are marked throughout the registers next to the names of all kinds of registrants, members of Local 373 included. Tagliareni, a member of Ironworkers Local 399, regis- tered six times in the Local 45 hiring hall, and also like the other named claimants here was repeatedly passed over - according to this Respondent's registers - in favor of later registrants who were members of Local 45. Five of the times Taglareni's name was belatedly called, he was present and sent out of work. What happened the sixth 516 IRONWORKERS, LOCAL 373 time is not clear in the registry book because the appropriate place for notation was simply left blank. During cross-examination of these two men at the hearing it was brought out that both have at times worked as ironworkers under other assumed names. The reason for such activity, the timing, the relationship between that and the referrals and the discriminations shown here, does not appear. Whatever the fact of a man using more than one name when working at the same trade may mean in other contexts, or under other rules and laws, it has no significant relationship to the question presented in this case. They sought work out of this hall, they accepted it when it was offered, and they were unlawfully denied referrals to which they were lawfully entitled. The continuing unfair labor practices committed by Respondents hurt them as well as others named in the complaint. There is no reason therefore for viewing them in any different light so far as this proceeding is concerned. H. Charles and Joseph Thom These two men are brothers who signed into the Local 373 hall nine times, all but once together. They often marked the book "one car," giving the Union dispatcher to understand they wanted an assignment that would make it possible for both of them to travel to work together - in one car. And they were sent out in that way. Eight times they signed together; of these, four times they were sent to the same employer on the same day, twice their names were called on the same day and both were absent from the hall, once there is a blank space in the register after both names, and once, again their names called on the same day, Charles was absent and Joseph went to a job. The only other time when either name appears on the register is when Joseph signed alone, and eventually, albeit belatedly, was sent out alone. That their concept of employment as ironworkers required joint employment as a regular arrangement, is further shown by a picture of their earnings, also placed in evidence. The two principal jobs they held were with Vican Construction and with Sudler Construction. At Vican, Joseph earned $8,063 and worked 99 days, while Charles earned $7,680 and worked 94 days. At Sudler, Joseph earned $3,435 and Charles $3,306, while Joseph worked 42 days and Charles 41 days. I do not think there can be a finding in this case that Local 373 violated the Act respect to these two registrants in its hiring hall. They used the hall for work they could get that fitted their special circumstances and needs. To conclude that the Union treated them differently than it treated its own members would require that it in fact sent its members out to double jobs, or assignments where two men could travel to work in one car. There is no such evidence, and none was offered. I shall therefore recom- mend dismissal of the complaint with respect to Charles and Joseph Thom. I have had marked three of the Appendixes (A, B, and C) attached to the General Counsel's brief as Administrative Law Judge Exhibits: Administrative Law Judge Exhibit I is the statistical picture drawn from the Local 373 referral registers and showing all referrals of Local 373 members in preference to the 16 nonmembers named in the complaint who signed in ahead of the preferred members. Adminis- trative Law Judge Exhibit 2 is the statistical picture drawn from the Local 45 registers and showing the like out-of- turn referrals by that Respondent vis-a-vis the earlier registrations by the other eight outsiders named in the complaint. Administrative Law Judge Exhibit 3 is the statistical picture drawn from the steward reports of Local 45, showing about 1,000 instances when its members were working on contract jobs in total disregard of the exclusive hiring hall. In order that the closing findings of unfair labor practices committed be better understood by any reviewing authority, I now receive into evidence Administrative Law Judge Exhibits 1, 2, and 3. I find that, in every instance where Local 373 and Local 45 referred their members to work in preference to nonmembers who had signed into the hiring hall ahead of them, and where the member's name bears no special mark of designation in the book, all as shown in the original referral registers received in evidence, Respondents violat- ed Section 8(bXIXA) and (2) of the Act. I also find that all instances, again as precisely shown in the referral registers, where the two Respondents referred members in prefer- ence to previously registered nonmembers, but marked their names "foreman," "steward," or "requested," they violated the same section of the statute more than half of the total times they did so. The realities are that there must have been some occasions when such "marked" out-of-turn referrals in fact conformed with and were therefore justified by the provisions of the underlying collective- bargaining agreement. With no less certainty, there must have been occasions when the use of the labels was not in keeping with the contract exceptions to the hiring hall rules. In the light of rational inferences arising from the very significant related numbers revealed on the total records, I think at least half of such referrals in truth were no more than regular, nonexceptional assignments, and probably even many more. Inferences of illegal motivation do arise from numerical imbalance; see United States v. Ironworkers Local 86, 443 F.2d 544 (C.A. 9, 1971), cert. denied 404 U.S. 984 (1971). For purposes of this Decision these findings will suffice. IV. THE REMEDY It has been held that in special circumstances the Board may, indeed should, fashion unusual remedies. Where the violations of the Act committed are of extraordinary pervasive nature, where they are of almost unlimited magnitude, if the remedy imposed is to have any justifica- tion at all it too must be of a force and character to match the offenses. Long ago the Supreme Court said an employer must bargain with a union which in the end concedes it represents no present employees, and the reason was because emphasis upon the conventional meant frustration of the very purpose of the statute in that case. Franks Bros. Company v. N.LR.B., 321 U.S. 702 (1944). And more recently the Court ruled that where an employer's unfair labor practices are sufficiently "fla- grant," "egregious," it could be ordered to extend exclusive recognition to a union, and bargain collectively with it, notwithstanding there is no showing it was ever in fact authorized by a majority. N. LR.B v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). This case at bar brings to light 517 DECISIONS OF NATIONAL LABOR RELATIONS BOARD still another instance of such widespread flouting of the law, such longstanding, repetitious, and pervasive viola- tions of the statute, that the normal or usual remedial Board techniques are pointless. In fact, the record, as a whole strongly suggests that these two local unions are counting upon the standard procedural delays inevitably tied to the usual Board practices in order to continue right on with their now long-established practice of denying work to any hiring hall applications but their own members. It is for this reason that Respondents demand to be shown now each and every instance where they in fact prejudiced a man. That infinitessimal question alone, were it to be permitted to stall this proceeding, would mean months of detailed bookkeeping before a Board finding of any kind could issue - with Respondents all the while continuing the illegal practices of the past. This is why I think finding a few hundred separate violations suffices instead. But the same delay - reaching into years - is sought obliquely via the make-whole route. In the normal case, after the Board finds an unfair labor practice was committed, a check is made to ascertain how much the discriminatees lost in wages. The standard backpay specifications detail to the penny precisely how much Smith "would have earned" had the union not ignored his right to work. In this case it is not possible to restructure the past - i.e., it is not possible to determine with any rational degree of certainty, how much each of the 22 (the Thoms excluded) individuals named in the complaints - to say nothing of those in fact discriminated against but not yet identified! - would have earned had they been sent to work in proper rotation. The inquiry in each of maybe a thousand instances would become so ramified and speculative that in the wasted morass of time and energy the misconduct would simply remain unremedied. Counsel for the locals correctly said, at the hearing: "Neither of us are that young to do that." Two definitive elements in the remedy are dictated in this case. Of course, as always, Respondents must be ordered to cease and desist from further violations of Section 8(b)(l)(A) and (2) of the Act in the operations of their exclusive hiring halls. There must also, however, be: (1) a monitor - designated and supervised by the National Labor Relations Board but compensated by the two Respondent Locals - to oversee the day-by-day operation and recording of both the Local 373 and Local 45 hiring halls; and (2) an immediate order by the Board directing the two Respondents to pay, to each of the 22 named discriminatees, an amount of money to bring their 1975 earnings, and their first half of the year 1976 earnings, out of these halls, up to a par with the average earnings of all Local 373 and Local 45 members who shaped out of these halls during the same periods. As to the first point - designation of a neutral overseeing monitor - if the facts of this case, as already explained above, are not sufficiently persuasive to a reviewing authority, if the logic and necessity for such a 5 "the burden is upon the employer to establish facts which would mitigate that liability." N.LR.B. v. Brown & Root, Inc., 311 F.2d 447, 454 (C.A. 8, 1963). And whenever in the total picture there do appear uncertainties or ambiguities "the backpay claimant should receive the benefit of any doubt rather than Respondent, the wrongdoer responsible for corrective measure do not emerge from the face of the record no amount of added monologue here would help. A respondent, or defendant, which so blatantly and continu- ously disregards a Federal District Court order not to discriminate in referrals on the basis of local union membership, will surely continue to ignore any directive of this Board unaccompanied by simultaneous power to enforce. As to the second item there is in evidence data from the records of the District Council of Iron Workers of Northern New Jersey Pension and Welfare Funds, and it shows with exactness how much money members of Local 373 earned at work covered by the Iron Workers Council - Employer Association Contract during 1975, and the amount they earned during the first half of 1976. For the year 1975 these members averaged over $17,000 in earnings, and, in contrast, as shown by the same computer printout from the pension fund, the 14 ironworkers who suffered illegal discrimination at the hands of Local 373 earned only an average of about $6,400. The relative picture holds substantially the same for 1976. Even the Local 373 apprentices, and trainees, earned greatly in excess of the prejudiced outsiders, all skilled craftsmen. I agree with the General Counsel and the Charging Parties that short of extraordinary remedial action these Respon- dents will continue on in their illegal ways. Whatever course this proceeding may take, inevitably in the end what Respondents will have to pay to restore the status quo (a phrase not literally applicable here) must be no more than an approximation of the actual loss of earnings, a guess - but a rational, educated, justified, and unavoidable guess. And the procedure of estimating in place of precision is supported by precedent.5 The discriminatees are not to be paid an amount to bring their earnings up to that of the favored members, for had there been equitable allocation of work instead of illegal preference, the members would have earned less than they did. The actual earnings of all - members and nonmembers - should be totaled, the overall sum divided by the number of ironworkers who worked - again members and nonmembers - and the resultant average be deemed the amount each of the discriminatees would have earned absent the illegal conduct. And precisely similar calculations can be made with respect to those nonmembers - identified in the pleadings or not as yet identified - who were illegally denied proper referral out of the Local 45 hiring hall. The pension fund financial data which produced the exhibits received in evidence reflecting the earnings of members of Local 373 are equally available upon request to produce the average earnings of all members of Local 45. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of Respondents set forth in section III, above, occurring in connection with the the existence of any uncertainty and against whom any uncertainty should be resolved." United Aircraft Corporation, 204 NLRB 1068(1973); see also J.H. Rutter-Rex Manufacturing Conpany, Inc., 194 NLRB 19 (1971), and N. LR.B. v. Miami Coca-Cola Bottling Company, 360 F.2d 569 (C.A. 5, 1966). 518 IRONWORKERS, LOCAL 373 operations of the diversified employer members of the Building Contractors Association of New Jersey, 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 com- merce and the free flow of commerce. On the basis of the foregoing findings of fact, and upon the entire record I make the following: CONCLUSIONS OF LAW I. By attempting to cause and by in fact causing the employer members of the Building Contractors Associa- tion of New Jersey to discriminate against 14 ironworkers named in the complaint, and other as yet unidentified ironworkers, in violation of Section 8(a)(3) of the Act, Respondent Local 373, International Association of Bridge, Structural and Ornamental Iron Workers has violated and is violating Section 8(bX2) and (IXA) of the Act. 2. By attempting to cause and by in fact causing the employer members of the Building Contractors Associa- tion of New Jersey to discriminate against the eight individual ironworkers named in the complaint and other as yet unidentified ironworkers, in violation of Section 8 (a)(3) of the Act, the Respondent Local 45, International Association of Bridge, Structural and Ornamental Iron Workers has violated and is violating Section 8(b)(2) and (IXA) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 519