Ironworkers Local 45

DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Association of Bridge, Structural & Ornamental Ironworkers, Local 451 and Ralph Bucci and Building Contractors Association of New Jersey Case 22-CB-3223 September 28, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On December 30, 1976, Administrative Law Judge John M. Dyer issued the attached Decision in this proceeding. Thereafter, Respondent International Association of Bridge, Structural & Ornamental Ironworkers, Local 45, filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs 2 and has decided to affirm the rulings, findings, recommendations, 3 and conclusions of the Administrative Law Judge only to the extent consis- tent herewith. The record discloses that alleged discriminatee Ralph Bucci, a nonmember of Respondent Local 45, registered as an applicant for employment at Re- spondent's hiring hall on three separate occasions over a 10-month period. 4 As set forth in Local 45's referral books, which the General Counsel intro- duced into evidence at the hearing, Bucci first signed the register on December 1, 1975, and was not called for referral until February 9, 1976,5 when he was Herein called Respondent Local 45. 2 Respondent Local 45 has requested oral argument. This request is hereby denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties. I Respondent Local 45 has excepted to the recommendation of the Administrative Law Judge that this proceeding be consolidated with International Association of Bridge, Structural & Ornamental Ironworkers, Local 373 (Building Contractors Association of New Jersey), 232 NLRB -- - also issued on this date. Inasmuch as we are relying solely on the record evidence before us in making findings as to the alleged violations in the instant case, and are relying on that former case only as background with respect to the appropriateness of the remedy herein, we do not adopt the Administrative Law Judge's recommendation that these cases be consolidat- ed. 4 The Northern New Jersey District Council of Ironworkers is comprised of various locals, including Respondent. Pursuant to a contractual agreement between the District Council and the Building Contractors Association of New Jersey, Respondent operates an exclusive hiring hall. 5 All dates are in 1976, unless otherwise indicated. 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 Respondent herein. The consent decree provides that the referral system shall be operated on a "non- 232 NLRB No. 86 marked "absent"; he next registered on May 5, but was not referred for work until August 16; and he subsequently registered on August 17, and had not been referred as of September 22, the date of the hearing in this proceeding. The Administrative Law Judge, apparently relying on posthearing summaries of Respondent's referral books submitted by the General Counsel, found that Local 45 had violated Section 8(b)(1XA) and (2) of the Act with respect to Bucci in a total of 56 instances during the above periods by referring its members out of chronological order with no purport- ed designation under the consent decree.6 A review of the referral books themselves, however, reveals that the General Counsel's summaries failed to denote certain instances in which Respondent designated members as falling within the enumerated excepted categories under the consent decree in making referrals. While we conclude that Respon- dent has engaged in a pattern of unlawful conduct against Bucci, we do so based on an examination of the referral books themselves and without including those instances in which it appears that nonchrono- logical referrals of members were purported to be justified under the consent decree. Rather, in finding a specific minimum number of violations with respect to Bucci, which are detailed in Appendix B, attached hereto, we rely solely on those referrals in which members with no purported designations were given preference over Bucci. Thus, we find that Respondent Local 45 clearly violated Section 8(b)(1)(A) and (2) of the Act at least 18 times during the period from December 1, 1975, to September 22, 1976, by affording preferential treatment to its own members over Bucci in making referrals.7 The Administrative Law Judge also determined that Respondent's designations of its own members as falling within the excepted categories of "request- 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; (6) employer requisi- tions communicated during other than normal referral hours or on Saturdays, Sundays, or Holidays. It appears that Respondent, when making referrals which purportedly fell within these classifications, generally denoted such referrals by placing special designations in the "Remarks" column of the referral books. I Specifically, a review of the referral books themselves shows that Respondent clearly violated the Act 14 times by refemng members out of sequence with no purported designation under the consent decree between the time that Bucci signed the register on December 1, 1975, and his subsequent referral on February 9; committed 3 violations during the second period from May 5 to August 16; and I violation for the period August 17 through the date of the instant hearing. (See Appendix B.) 520 IRONWORKERS, LOCAL 45 ed," "late call," "call back," or "steward" in making referrals were deceitful in at least half the total instances that Local 45 made out-of-turn referrals based on such designations. Apparently, again relying on the General Counsel's summaries, the Administrative Law Judge found that between December 1, 1975, and February 9, 1976, Respon- dent reported 17 out of 34 members who were referred out of turn in preference to Bucci as being designated under excepted categories; so designated 96 of 124 members between May 5 and August 16; and 56 out of 67 members between August 17 and September 22, the date of the hearing.8 The Adminis- trative Law Judge's finding of deceitful referral designations also relied specifically on the findings by Administrative Law Judge Ricci in Ironworkers 373, supra, with respect to referral books for an earlier period, which books were not introduced into evidence in the instant case. Furthermore, that prior case was still pending before the Board on exceptions as of the date of the Administrative Law Judge's Decision herein. 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 designations as "requested," "call back," or "steward" were deceitful, and while we specifically do not adopt his reliance on evidence not before him in this proceeding, it is clear from the referral books themselves, in view of Respondent's continuing pattern of designating its own members as falling within excepted categories under the consent decree in numbers grossly disproportionate to those of nonmembers, that a substantial number of such designations of its members were false. We therefore find that Respondent has engaged in unlawful discrimination not only by referring its members to work in preference to Bucci, but by its consistent a While there are minor discrepancies between the figures set out by the Administrative Law Judge and those revealed by our examination of the referral books themselves, such discrepancies are too insubstantial to affect our conclusion herein. In any event, we note that the correct figures for these periods would show, in fact, that Respondent designated an even higher proportion of its members as falling within excepted categories if the purported designations of apprentices, trainees, minorities, and foremen set forth in the referral books were to be considered as designations reported under the consent decree. 9 Respondent has set forth its use of "requested" referral designations 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 Respondent has already been discussed. In addition, we note specifically that Respondent has failed to substantiate the validity of "requested" designations by producing (I) the separate "Contractors Requisition Register" required by par. 23 of the consent decree or (2) written confirmation of contractors' requests required by par. 27 (c) of the consent decree. Respondent must at least produce such documents, or explain its failure to do so, in order to meet the burden of proving its defense to facially discriminatory referrals. Accordingly, the class of "similarly situated" discrininatees entitled to relief by this Decision and Order shall include any nonmember applicant for referral identified by the General Counsel in subsequent compliance pattern of discrimination against all similarly situat- ed nonmember applicants. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(bX 1)(A) and (2) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the purposes of the Act. In view of our finding in Ironworkers Local 373, supra, that Respondent Local 45 previously has engaged in widespread and pervasive violations of Section 8(b)(1)(A) and (2) of the Act, we conclude that the unfair labor practices in this proceeding constitute a continuation of Respondent's earlier unlawful conduct. Therefore, in order to effectuate the purposes of the Act, we shall direct Respondent to take action similar to that which we found appropriate in that prior case. Thus, we shall order Respondent to make whole Ralph Bucci and all other nonmember applicants who were similarly situated 9 for any loss of earnings they have suffered by reason of Respondent's discrimination against them.10 Such backpay will be applied under a formula whereby the overall earnings of all appli- cants, members and nonmembers, seeking employ- ment through its referral system would be divided by the total number of ironworkers who worked out of the hiring hall, taking into account the net earnings of the individual discriminatees during the relevant period and providing for the inclusion of interest as provided in Florida Steel Corporation, 231 NLRB 651 (1977). 1 We shall additionally require that Respondent keep and retain for a period of 2 years permanent written records of their hiring hall operations and make those available to the Regional Director upon proceedings as an individual in preference to whom a member applicant designated "requested" has been nonchronologically referred, with the provision that Respondent may attempt affirmatively to defend any "requested" referral designation by production and verification of the aforementioned documents or other evidence of sufficient probity. 'o The complaint herein not only alleges that Respondent has violated the Act with respect to the referral of Ralph Bucci, but it also alleges more broadly that Respondent has unlawfully discriminated against "other of its applicants for employment." In view of our finding herein that Respondent has engaged in a pattern of widespread discrimination against nonmember applicants seeking employment through its hiring hall, and in light of our previous findings in Ironworker 373, supra, we find it appropriate to provide restitutional relief to Bucci, as well as to other as yet unidentified discriminatees, for any loss of earnings they may have suffered by reason of Respondent's dlscrimination against them. See Painters, Decorators, and Paperhangers of America, Local No. 985 (W. F. Schualia d Co., Inc), 194 NLRB 323 (1971); Harold Goldsmith and Ada J. Goldrmiith, d/b/a Superior Maintenance Company, 133 NLRB 746(1961). II In accordance with our decision in Florida Steel Corporation, 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. 521 DECISIONS OF NATIONAL LABOR RELATIONS BOARD request. We also shall order Respondent to submit to the Regional Director four quarterly reports concern- ing the employment of Ralph Bucci and other nonmember applicants subsequently found to have been similarly situated. Further, we shall require Respondent to place its referral registers, for a period of 2 years, on a table or ledge in its hiring hall for easy access and inspection by the applicants upon the completion of each day's entries in such registers. Finally, we shall direct that Respondent post an appropriate notice. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, International Association of Bridge, Structural & Ornamental Ironworkers, Local 45, Jersey City, New Jersey, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause the separate employer-members of the Building Contractors Association of New Jersey, or any other employer, to discriminate against Ralph Bucci, or any other employees, in violation of Section 8(a)(3) of the 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 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 on 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 Ralph Bucci and those 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 the table or ledge in the hiring hall for easy access and inspection by the applicants as a matter of right, upon the completion of each day's entries in such registers. (d) Make whole Ralph Bucci and all other nonmember applicants who were similarly situated during the relevant period for any loss of earnings they may have suffered by reason of the discrimina- tion practiced against them, in the manner set forth in the section of this Decision entitled "The Reme- dy." (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."12 Copies of said notice, on forms provided by the Regional Director for Region 22, after being duly signed by the Local's representatives, 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) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps respondent has taken to comply herewith. 12 In the event that this Order is enforced by a Judgement 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 Judgement of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause or attempt to cause any of the employer-members of the Building Contrac- tors Association of New Jersey, or any other employer, to discriminate against Ralph Bucci, or any other employee, 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 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 522 IRONWORKERS, LOCAL 45 disclose fully the basis on 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 Ralph Bucci 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 the comple- tion of each day's entries in such registers. WE WILL make whole Ralph Bucci and all other nonmember applicants who were similarly situated during the relevant period 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 APPENDIX B Respondent Local 45, at the minimum, has violated Section 8(b)(l)(A) and (2) of the Act with respect to Ralph Bucci by referring the following members out of chronological order with no purported designa- tions under the consent decree. Discrim- Member Inatee Referred R. Bucci P. Callahan J. Creegan F. Oterson H. Fernau D.V. MacGregor J. McConville D. Carroll W. Aitkens R. Goldey M. Callaghan,Jr G. Hendricks R. Coldev, Jr. J. Crader E. Goldey Date Date 1/ Sicned Referred 12/1/75 2/9/76 (Absent) 12/4/75 1/28/76 12/4/75 2/3/76 12/8/75 1/2/76 12/9/75 1/9/76 12/9/75 12/16/75 12/11/75 1/6/76 12/11/75 12/18/75 12/12/75 12/17/75 12/15/75 12/16/75 12/15/75 1/6/76 12/18/75 1/2/76 1/13/76 1/28/76 1/14/76 1/23/76 1/14/76 1/28/76 R. Eucci R. Bucci 5/5/76 J. McNeil 6/4/76 J. Brooks 6/4/76 L. McClanahan 7/12/76 8/17/76 R. Deecken 8/25/76 8/16/76 6/7/76 6/21/76 7/12/76 5LANK 2/ 8/28/ 76 18 Violations Total i Indicates that Bucci was called for referral, but was not present in the hiring hall. I Indicates that Bucci had not been called for referral as of the date of the hearing. DECISION STATEMEINT OF THE CASE JOHN M. DYER, Administrative Law Judge: Ralph Bucci filed the charge in this case on May 4, 1976,1 alleging that the International Association of Bridge, Structural & Ornamental Ironworkers, Local 45, herein referred to as the Union, Local 45 or Respondent, violated Section 8(bXIXA) and (2) of the National Labor Relations Act, as amended, by refusing to refer him for employment in derogation of his Section 7 rights. The Regional Director issued a complaint on June 30 which alleges that Respon- dent and Building Contractors Association of New Jersey, herein called BCA, had a collective-bargaining agreement which incorporates an exclusive job referral system, whereby the Union refers persons to BCA's employer- members for employment. Under its terms, referrals are to be made without regard to membership in the Union. The complaint alleges that Respondent failed to follow the referral system with Bucci because of Bucci's nonmember- ship in Respondent and that Respondent thereby violated Section 8(bX I XA) and (2) of the Act. Respondent's answer, as amended at the hearing, admitted the jurisdictional and commerce allegations, its status as a union and its contract with BCA including the exclusive referral system and generally acknowledged that Bucci had applied for positions at various times on and after December 1, 1975, but stated that under various consent decrees filed with a United States District Court, there were certain exceptions to the strict chronological order of referral of prospective employees and that it had been following those exceptions in referring people out of chronological order. It denied that it had violated the Act in any way. The hearing in this case was held on September 22, 1976, and the parties were afforded full opportunity to appear, to examine and cross-examine witnesses, and to argue orally. General Counsel has filed a brief and Respondent filed a letter brief. Essentially the case consisted of a small amount of testimony by Bucci and introduction of Respondent's referral records for the period of December I through the date of the hearing. On the basis of those records and the testimony I have concluded that Respondent violated Section 8(bXIXA) and (2) of the Act. Due to the specific I Unless otherwise indicated the dates referred to herein occurred from December 1975 through 1976. 523 DECISIONS OF NATIONAL LABOR RELATIONS BOARD circumstances in which this case came about and because of a prior case involving this and other Respondents, the findings and conclusions made therein, and the status of that case, I am recommending that the Board consolidate this proceeding with the prior proceeding and provide a broad remedy for the violations found there and here. On the entire record in this case, I make the following: FINDINGS OF FACT I. COMMERCE FINDINGS AND UNION STATUS Building Contractors Association of New Jersey is a New Jersey corporation which is an association of employers engaged in construction in New Jersey. The employer- members have delegated to BCA authority to conduct collective-bargaining negotiations on their behalf, which BCA has done for a number of years with various unions including Respondent. During the past year members of BCA received goods and materials directly from points outside the State of New Jersey at New Jersey locatior valued in excess of $50,000. Respondent admits and I find that BCA is an employer engaged in commerce within the meaning of the Act. Respondent admits and I find that it is a union within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES A. Background and Facts Pursuant to its contracts with BCA, Respondent has maintained and operated an exclusive job-referral system for ironworkers employed by employer-members of BCA in the area where Respondent operates. As a part of its defense, Respondent relies on a consent decree issued by the United States District Court for the District of New Jersey in which Respondent, among others, has agreed to abide by the decree which provides for nondiscrimination on account of race, creed, color, or national origin in referring employees for employment and further provides that referrals shall not be denied because of nonmembership in the Union. The decree incorporates specific methods including a chronological hiring order but providing for certain exceptions. The exceptions allow referral out of chronological order where a company specifically requests an individual, where the Union appoints a person as a steward to a particular job and where a person is to be made a foreman by an employer. In a hearing held during May and June 1976, involving this respondent and two other unions, Administrative Law Judge Ricci made findings and conclusions and decided that Local 45 had violated Section 8(b)(l)(A) and (2) of the Act by causing employer-members of BCA to discriminate against individuals named in the complaint in that case and against "other as yet unidentified iron workers." In Administrative Law Judge Ricci's recommended Order which included his extensive broad remedy for Respondent he provided that Respondent would: "Make whole each of the above-named eight individual employees, or any other applicant who has suffered illegal discrimination at the hands of Local 45, for any loss of pay they may have suffered by reason of the discrimination practiced against them, in the manner set forth in the section of this Decision entitled 'The Remedy.' " Administrative Law Judge Ricci's remedy prescribed backpay for both the named discriminatees of Local 45 and for all unidentified or unnamed discriminatees who suffered similar violations of the Act at the hands of Respondent. Therefore if Ralph Bucci, the Charging Party herein, suffered discrimination at the hands of Respondent in the manner described by Administrative Law Judge Ricci during the period covered by that case, Bucci is a discriminatee and provided with a backpay remedy under said recommended Order. Because of the violations which he found, Administrative Law Judge Ricci further provided for monitors to be designated and supervised by the Board but compensated by the locals to oversee the day-to-day operations of the hiring halls so that the locals would operate according to law, since he had found that Respondents, which include Respondent herein, had blatantly defied applicable law. Administrative Law Judge Ricci's decision issued the day after the hearing in the instant case and mention of this prior proceeding was made in this hearing. On findings which I shall make subsequently and upon reviewing that Decision it appears to me that the complaint allegations herein are covered by findings of violations of the Act by Local 45 for the period covered by Administrative Law Judge Ricci's Decision, since he found that unnamed or unidentified persons who had signed up for referrals for Local 45 had been discriminated against by Local 45. This finding would apply to Ralph Bucci both by the evidence before me and the findings of Administrative Law Judge Ricci. Based on the facts in the instant case, which corroborate the findings of violations occurring during the period covered by Administrative Law Judge Ricci's Decision and which extend the violations beyond that period, it appears appropriate to recommend that the Board consolidate this case with the former case so that the Board can have a more complete picture of the continuing nature of the violations insofar as Local 45 is concerned. I am persuaded of the widespread nature of the violations and of the necessity for the remedies which Administrative Law Judge Ricci has recommended to the Board. I will adopt his remedy recommendations and further recommend them to the Board for application in this case which should be consolidated with his. Ralph Bucci's testimony is undenied that he applied for membership in Local 45 and was turned down by the local and on appeal to the International on several occasions. On one occasion when he applied the business agent of Local 45, Edward Konear, threw his card back at him and said, "He would not let in a Guinea bastard. He would rather let in a nigger." Thus the question of Bucci's being referred by Respon- dent or accepted as a member appears to involve considerations other than payment of possible proper fees and appears to be in violation of the consent decree issued by the court. In any event the referral records in the instant case show that Ralph Bucci signed the referral book on December 1, 1975, and was not referred out until February 9, 1976, 524 IRONWORKERS, LOCAL 45 when, according to the book, he was marked absent. In the interim between December I and February 9, there were either 34 or 35 referrals of Local 45 members who had signed the book after Bucci. Of this number 11 were designated as being requested by a company, 2 were shown sent out as stewards, 5 were listed as callbacks by the Company, I person with no designation was listed as being absent, and 16 Local 45 members were referred ahead of Bucci with no designation as to why they were sent out of turn. Bucci signed up again on May 5, but was not referred for work until August 16 when he received a I-day job. This latter date is after the dates of hearing in Administrative Law Judge Ricci's case. In the interim a substantial number of Local 45 members signed and were sent out ahead of Ralph Bucci. General Counsel in an appendix and in his brief states that 124 Local 45 members with similar ability were referred out of turn with 28 of them having no designation as to why they were sent out ahead of Bucci. According to my calculations, 62 Local 45 members are shown as requested by employers, plus 6 trainees who presumably would have been sent out as apprentices under the consent order, 23 persons plus I possible additional were sent out as stewards, 20 were listed as callbacks, 2 persons were listed as being absent with no other designation, and 29 persons plus 2 possible others were referred ahead of Bucci and no designations or reasons were given. It is possible that two or three of those may have had qualifications superior to Bucci but that is doubtful. Bucci next registered in the book on August 17, and as of the date of the hearing, September 22, he had not received any referrals. According to General Counsel, Local 45 had referred 67 Local 45 members who had signed the book subsequent to Bucci with only 1 of those persons not being designated as either a steward, a request, or a callback. According to my calculations 34 Local 45 members were requested, 10 were listed as stewards with I possibly being listed as a steward, 14 were listed as callbacks, and 9 persons were listed as not being designated and 2 being absent. It is possible that of the nine designations several of them may have had qualifications superior to Bucci but that again is questionable. Insofar as a primafacie case goes, there is no question but what the referral of Local 45 members, who were not designated as either a steward, a callback, or a request, and were referred out of turn prior to Bucci, violated the Act since they were referred out of chronological turn with no reason given. Thus, Respondent violated the Act, insofar as Bucci is concerned, at least 17 times between December I, 1975, and February 9, 1976, at least 28 times between May 5 and August 16 and 9 to 11 times between August 17 and September 22, 1976. In his brief General Counsel urges and I agree that, on the basis of the increased designations of Local 45 members as being requested or marked "steward" or "callback" in the referral book, the law was violated on a number of additional times in the same manner as Administrative Law Judge Ricci found on the much greater records before him. I do not have that volume of records before me but there seems to be quite a change in the number of designations when it is considered that in the first period only half of the Local 45 members who were referred were designated as either stewards, callbacks, or requests, while in the latter stages the number of nondesignees dropped to about one-fifth of the total number of out of order referrals. General Counsel's brief cites other statistics from the records showing that the number of non-Respondent members referred out as stewards, requests, or callbacks is so minute as to make the disproportionate number of Local 45 member requests, callbacks, and stewards appear to be an inflated, fallacious figure. B. Conclusions and Findings The figures in the instant case appear to bear out General Counsel's contention that not only the nondesig- nated previous referrals of Local 45 members violated the Act, but that a substantial number of those subsequently designated in the book as requests, callbacks, and stewards were intentionally and falsely so designated and that such also violated the Act. General Counsel urges and I find that at least half of that number in the latter two periods are improper designations and falsely made to give an erroneous picture of Respondent's referrals. Administrative Law Judge Ricci arrived at such a conclusion on the basis of the greater volume of records before him and of the steep climb of designations made by Respondents in his case. The swift rise of designations from 17 out of 34 to 96 out of 124, and 56 out of 67 bears this out. As far as the instant case is concerned, I conclude and find that Respondent, during the first period of December 1975, to February 9, 1976, violated Section 8(bXIXA) and (2) on 17 occasions insofar as Ralph Bucci is concerned. I further find and conclude that in the second period, May 5 to August 16, 1976, that Respondent violated Section 8(bXIXA) and (2) of the Act on both the 28 occasions where there were no designations and at least in half the other occasions where there were designations of Local 45 members as stewards, requests, or callbacks. I further conclude and find that during the third period of August 17 to September 22, 1976, Respondent violated Section 8(b)(IXA) and (2) of the Act as far as Ralph Bucci was concerned, on II occasions where there were no designa- tions of Local 45 members referred out of order prior to Bucci being referred, and in at least half of the other 56 occasions where Respondent designated Local 45 members who were referred ahead of Bucci as being hired as stewards, requests, or callbacks. Since the instant case involves only one named individu- al who in effect has already been found as an unidentified 8(aX3) - 8(bX2) in Administrative Law Judge Ricci's case, I recommend to the Board that this case be consolidated with Administrative Law Judge Ricci's case and that the background and findings in that case be considered with this case for the ultimate remedies which are necessary to effectuate the policies of the Act. I will recommend in this case that the remedies which Administrative Law Judge Ricci found applicable to Local 45 be applied herein. 525 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, as set forth in section II, above, occurring in connection with the operations of the employers and of BCA as set forth and described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY Having found that Respondent violated Section 8(b)(1)(A) and (2) of the Act as set forth above, it is recommended that it cease and desist from such conduct and take affirmative action designed to effectuate the policies of the Act. Specifically, I recommend that this case be consolidated with [232 NLRB No. 85], and that the remedies therein found appropriate for Local 45 be extended to the instant case and enlarged by the instant case. If not consolidated by the Board, I recommend that the remedies for Local 45 in [232 NLRB No. 851 be applied in this case. Upon the foregoing findings of fact and the record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent Local 45 is a labor organization within the meaning of Section 2(5) of the Act. 2. BCA is an employer within the meaning of Section 2(6) and (7) of the Act. 3. By attempting to cause and by causing employer- members of BCA to discriminate against Ralph Bucci and other employees or applicants for employment in violation of Section 8(aX3) of the Act, Respondent violated Section 8(aXI)(A) and (2) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 526