Intl. Brotherhood of Teamsters, Local 70

INTL. BROTHERHOOD OF TEAMSTERS, LOCAL 70 International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local 70 and Lawrence Saucer and Lucky Stores, Inc., Party in Interest International Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America, Local 70 and James A. King and Lucky Stores, Inc., Party in In- terest. Cases 20-CB-3545 and 20-CB-3639 September 30, 1976 DECISION AND ORDER BY MEMBERS FANNING, PENELLO, AND WALTHER On April 8, 1976, Administrative Law Judge Ber- nard J. Seff issued the attached Decision in this pro- ceeding. Thereafter, Respondent Union filed excep- tions 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 Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge 2 and to adopt his recommended Order as herein modified. Respondent contends that the Board should not entertain this case because the Charging Parties, King and Saucer, failed to exhaust a grievance proce- dure provided in the collective-bargaining agreement between Respondent and the Company. In support of its contention,, Respondent notes that, in addition to the usual grievance procedure, the agreement pro- vides that "any workman who believes that he has not been referred in accordance with the provisions of this Agreement or with the rules and "regulations of the [bi-partite] Hiring Hall Committee" may appeal to that committee and, in the event that its decision is unfavorable, to an impartial umpire whose decision shall be final. We find no merit in Respondent's contention that, because the Charging Parties did not avail them- selves of the contractual grievance machinery, this case should be dismissed or at least "referred to the contractual grievance procedure." The hiring hall agreement in question provides for the referral of all employees on a rotation basis in accordance with their standing on the referral lists maintained at the hiring hall, granting preference in employment to 205 those employed in the type of work and in the geo- graphical area covered by the agreement if they have seniority in the industry. King and Saucer, however, were not seeking referral under these provisions but were, instead, seeking preferential treatment pur- suant to an arrangement whereby Respondent was willing to waive the provisions of the hiring hall agreement in order to accommodate the Company's desire to hire more black employees. Thus it does not appear that the incidents complained of herein could even form the basis of a grievance cognizable under the collective-bargaining agreement. And it is the policy of the Board to abstain from action only if the dispute presented in our proceeding is cognizable in the contractual forum.' For this reason, therefore, we conclude that this case was properly presented to us for decision.4 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that the Respondent, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local 70, Dublin, California, its officers, agents, and represen- tatives, shall take the action set forth in the recom- mended Order, as so modified: 1. Delete paragraph 1(c) and substitute the follow- ing: "(c) In any like or related manner restraining or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act." 2. Substitute the attached notice for the Adminis- trative Law Judge's notice. 1 In his Conclusions of Law, the Administrative Law Judge inadvertently substituted the name of an individual who was not involved in this proceed- ing for that of Saucer. We, therefore, delete the name of that individual, "Brooks," and add the name of Saucer. 2 The Administrative Law Judge made no specific finding that the-Re- spondent attempted to cause and did cause the Employer to discharge Sau- cer on June 20 because of his nonmembership in the Union. In the absence of exceptions by the General Counsel, we do not reach this issue. Nor has the General Counsel excepted to the Administrative Law Judge 's omission in his recommended Order of a provision directed to the 8 (b)(2) violations which were found herein. 3 Joseph T. Ryerson & Sons, Inc. (Local 2212, United Steelworkers of Amer- ica d 1, 199 NLRB 461 (1972), Members Fanning and Jenkins dissenting. Member Fanning would not in any event defer to the grievance proce- dure here, consistent with his position on the Collyer issue, as expressed in Ryerson, supra, and other cases He notes also that the contract subjects a "workman" who appeals to the hiring hall committee to the possible ex- pense of an umpire. Should an umpire become necessary , the contract pro- vides that costs are to be borne by "the Union and/or the workman in the discretion of the umpire." 226 NLRB No. 34 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government TO ALL JOB APPLICANTS USING OUR HIRING HALL, WHETHER OR NOT MEMBERS OF INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, LOCAL 70 WE WILL NOT refuse to"refer Lawrence Saucer and James A. King, or any other job applicant, for employment to any employers because they are not members of Local 70. WE WILL make Lawrence Saucer and James A. King whole for any loss of pay they' may have suffered because we have refused or failed to refer them to jobs. WE WILL notify California Trucking Associa- tion and other employers with whom we have exclusive referral agreements, in writing, that we have no objection to the employment of Law- rence Saucer and James A. King, and we will not refuse to register or refer them, or any other job applicant, for employment through our hir- ing hall procedures because they lack member- ship in Local 70. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their rights guaranteed in Section '7 of the Act. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, LOCAL 70 DECISION STATEMENT OF THE CASE BERNARD J. SEFF, Administrative Law Judge: These cases were heard before me in San Francisco, California, on Jan- uary 29, 1976. The charge involving an individual, Law- rence Saucer, was filed on June 17, 1975. Another mdividu- al, James A. King, filed an identical charge on September 19, 1975. Both charges allege that Respondent, Internation- al Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 70, discriminated against the named individuals causing their discharge in violation of Section 8(b)(1)(A) and 8(b)(2). The charges were consol- idated and an amended complaint was issued on October 15, 1975. Issues The primary issues involve the question as to whether the Union, by causing the discharge of both men because they were not members of Local 70, violated the Act. All parties, were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to, argue, orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and Respondent. Upon the entire record of the case, and from my obser- vation of the witnesses and their demeanor, I make the following: B. Pertinent Evidence Local 70 operates an exclusive hiring hall pursuant to its contracts with various employers. It is contractually pro- vided (as essentially required by decisions under the Act) that: Selection of applicants for referral to jobs shall be on a nondiscriminatory basis and shall not be based on, or in any way affected by, Union membership, by- laws, rules, regulations, constitutional provisions, or any other aspect of Union membership, policies or re- quirements. FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Lucky Stores, Inc., herein called the Employer , a Cali- forma corporation with headquarters located in Dublin, California, and a place of business in San Leandro, Cali- fornia, is engaged in the, business of operating a chain of supermarkets. In the past calendar year, the Employer had retail sales valued at excess of $500,000 and, during the same period, it received goods and supplies `valued in excess of $50,000 from points outside the State of California. I-find that the same Employer is engaged in commerce within the mean- ing of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED I find that Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts ,The parties had a collective-bargaining contract which expired by its terms on July 31, 1975. The General Counsel contends that Respondent violated Section 8(b)(1)(A) and 8(b)(2) by refusing to dispatch James King and Lawrence Saucer to Lucky Stores, Inc., because they were nonmem- bers of Respondent, and subsequently forced Lucky to ter- minate Saucer and then refused to allow him to sign Re- spondent's but-of-work list, all because he was not a member of the Union. Respondent denies that membership considerations played any part in its actions and asserts such actions were justified under the terms of the collec- tive-bargaining agreement between itself and Lucky. INTL. BROTHERHOOD OF TEAMSTERS , LOCAL 70 207 The contract prescribes certain hiring or referral standards, e.g., at the hiring hall, a list, called List A, is maintained of all workmen employed for at least a year on qualified work in the geographical area covered by the Local's hiring hall. Each workman is further designated according to the type or types of work for which he is qualified to perform. An- other list, called List B, is kept of all workmen seeking jobs who are not eligible for List A. Names are entered on lists in the order in which applicants notify the hiring hall of availability for jobs. Preference in making referrals is given to those on List A, and only after List A is exhausted are workmen dispatched from List B. As an exception to the rule of referral, it is provided that an employer may call for a workman by name only if it had previously employed such workman, if such workman was registered on List A. The procedure was further de- scribed in Respondent's testimony. Applicants at the hiring hall form a single line to the dispatch window. At the win- dow, there are usually three dispatchers, who maintain sev- en different lists of job functions under List A and a sepa- rate List B. The applicant states his qualifications and what he wants to do, and his name is placed by the dispatcher on one or more of the lists. Each day the names on the various lists are called in rotation-by the dispatcher. If the appli- cant fails to respond when his name is called or when the applicant obtains employment through these referral pro- cedures, his name is stricken from the lists, which otherwise are continued from day to day. C. James A. King James King, an unemployed black member of Team- sters' Local 296, went on Monday, June 2, 1975, to Lucky's to apply for a position as a driver. He spoke with Transpor- tation-Manager Willie Lombardi, who first had him fill out an application. Lombardi explained that if King could get a dispatch slip from Respondent, the Company would put him on the job within -a week. King left Lucky's and went to Respondent's union hall. There he explained to Respon- dent's dispatcher, Noel Eben, that he had just applied for a driver's position at Lucky's and had been told that he would need a dispatch slip from the hall. King was told by Eben that he would first have to get the approval of Al Andrade, Respondent's business agent assigned to Lucky's. King went to see Andrade immediately, but was allowed only to speak with the receptionist, with whom he left his phone number for-Andrade, Later that same day, Andrade returned his call and the two men discussed the possibility of King's being able to transfer back into Respondent, where he had been a member in past years, in order to get a job clearance. Andrade assured King that there would be no particular, problem since King had previously been a member. King returned to the hiring hall on June 6 and spoke again with the dispatcher, Eben. He asked Eben for a dispatch slip in order to report to Lucky's and was told he could not be given one, because he "didn't have a book." Eben asked no questions about his driver qualifica- tions and gave no indication that King was free to sign up at the hall. King repeated what had happened on Monday and left the hiring hall, at which time he went directly to Respondent's main office to speak with Andrade. This time he succeeded in finding Andrade and was shown to Andrade's private office. There he explained that Eben had just refused him a dispatch slip. Andrade phoned Eben immediately while King listened to the conversation. After informing Eben that Kmg was in his office, Andrade stat- ed, "We can't give him a clearance, can we?" Then he answered his own question with this, "We can't . . . be- cause he doesn't have a book." Andrade then asked Eben if there were any blacks or other minorities at the hall at the time and if there were to send them out on jobs. King asked what Eben's answer to the question was, and when Andrade repeated "No" to him, he demanded to know why he therefore could not get dispatched. Andrade re- sponded that he personally did not have the time at the moment to arrange things for King and that Eben would not give him a dispatch slip since he "didn't have a book." When King protested, Andrade said that Eben ran the hir- ing hall and that was that. Andrade then returned to the phone, where Eben was still on the line and said King was coming back down to the hall. King left Andrade's office and returned to the hall, where, in spite of Eben's vague "We'll see . . . ," he waited all day but was unsuccessful in securing a dispatch slip. King again returned to the hiring hall on June 9 at 8 o'clock in the morning and again spoke with Eben. He asked for the dispatch slip and was told to have a seat, that Eben had to "check it out." After waiting several hours, King returned to the dispatch window to find out if he had been forgotten; Eben responded that he had not forgotten, but that he had to "clear his book." Shortly after noon, King went to Respondent's main office and again to speak to Andrade and found him in the hallway. Once again King explained that he needed a dispatch slip, to which Andrade responded that he had requested a transfer from Teamsters' Local 296 but that, such things took- time. At this point King insisted that what he needed was the dis- patch slip, to which Andrade replied he would get it but not right then since he "did not have a book." Andrade gave him a slip of paper with the date June 17 in quotes listed on it and advised him that he must appear before Respondent's screening committee that day in order to transfer into the Union. Late on June 9 at about 6 p.m., Lucky's transportation supervisor, Roy Howe, received a phone call at his office from Andrade who wanted to know what was so special about King that the Company was pressing to get him hired. Howe responded that King was a qualified hostler, that the Company needed one, and that since King was black, the Company was especially anxious to hire him. Andrade stated flatly that he could not dispatch King since "he was not a book carrying member of Local 70." Howe replied that he would appreciate any efforts Andrade could make on King's behalf and reminded him that Lombardi had previously spoken to him about King. Andrade said that was true, but it all took time. Andrade then promised to try to get King's membership application approved by someone on Respondent's executive board that night if he could find one in the office. The conversation concluded with Howe saying he would advise King to go to the hiring hall on the following day. On Tuesday, June 10, Howe received a.phone call in his 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office shortly-after noon from Eben. Eben wanted to know what King was doing at the dispatch window again. When Howe said he wished to use. King as a graveyard hostler, Eben explained there was no way he could give King a dispatch, since he was "not a book carrying member" of Local 70. Eben then said that King could sign the "B" list which those casuals not qualified as "heavy drivers" must use. On the same day, June 10, John Martin, industrial relations manager at Lucky's, received a phone call at his office from Andrade. Andrade began the conversation with a discussion of the James King problem and stated to Martin as he had to Howe that the store could not hire King since he "was not a member of Local 70" and as yet had no dispatch slip from Respondent. C. Lawrence Saucer A strikingly similar series of events took place involving Saucer. He, too, is a black member of Teamsters Local 853 who applied for a warehouse position at Lucky's. On June 10 he spoke with John Melim, Lucky's warehouse supervi- sor, who asked Saucer if he were a member of Respondent and explained to him that in order to work for the Compa- ny, he must be cleared through the Union. It was suggested to Saucer that he go to Respondent's hiring hall to obtain a referral slip and in addition it was also suggested that he try to transfer his membership from Local 853 to Local 70. Melim requested that he report back afterwards, and he would see that Saucer was put to work. Later the same morning, Saucer went to Respondent's main office and spoke to Andrade. He asked Andrade if he needed his per- mission to fill out an application to go to work at Lucky's. Andrade said, "Yes," then gave him an application for transfer form to fill out, as well as a paper indicating that Saucer was to appear before Respondent's screening com- mittee on June 17 where they would decide on his applica- tion for transfer. It is to be pointed out that nowhere in the conversation did Andrade suggest or advise Saucer that he must sign up at the hiring hall, nor did he mention a dis- patch slip. Saucer went to Lucky's again on June 12 where he told Melim what had happened and showed him the paper An- drade had given him, which indicated the June 17 screen- ing date. Melim again requested that Saucer keep him ap- prised of what happened. On Thursday, June 19, Melim received a phone call from Saucer, who said he had been denied a transfer into Respondent Union at the screening session of June 17. At 5 a.m. the following day, June 20, Saucer went to Respondent's hiring hall and spoke with the dispatcher. Saucer explained that he did not know or recognize the man who was sitting behind the glass window in the place where the dispatcher usually sat, and he further said that this person was the only person behind the glass window at that time. During the conversation between these two men, the man behind the window gave no indication that he could not have given out a dispatch slip if he had wanted to. Based on these facts, the General Counsel concluded that the only plausible explanation that could be made was that the man who was sitting behind the glass was acting as Respondent's dispatcher that morning. It is vigorously de- nied by Respondent that the man behind the glass window was, in fact, a dispatcher. Although the identity of the man behind the glass window was unknown, it is clear that if the man behind the glass window was not a dispatcher, he certainly was clothed with apparent authority to act as the dispatcher. Saucer told the man who was sitting in the place where the dispatcher usually sat that he wanted a dispatch slip in order to work at Lucky's. The dispatcher asked if he had a "Local 70 union card." Saucer responded that he did not, at which point the alleged dispatcher said he could not give Saucer a slip. Saucer asked if the man would put his refusal in writing and was told that he would not. Saucer then left and returned to Lucky's to speak with Melim. Melim, after hearing Saucer's recital, decided to put him to work imme- diately in the warehouse. At 10 a.m. Andrade, accompa- nied by Shop Steward Loman Elwood, appeared in Melim's office. Andrade announced that Lucky had "hired a man . . . who was not a member of our union" and demanded to know what Melim was trying to do. Andrade said he considered Lucky to be breaking its contract with Respondent by hiring Saucer while there were "plenty of minority members down at the hall" who didn't have jobs. Andrade left Melim's office after having secured Saucer's dismissal from his job. - Thereafter Andrade made a phone call to John Martin, Lucky's industrial relations manager, and demanded to know if Martin was aware that Saucer was a member of Local 853 and not of Respondent Union. When Martin suggested that Andrade file a grievance over Saucer's hire if he was so upset, Andrade responded he had no intention of merely filing a grievance. On the contrary, he was going to strike Lucky's over the matter,-and the 5-day notice of a strike letter would be issued from his' office immediately. At the end of the phone conversation, Martin gave instruc- tions that Saucer was to be terminated immediately. At approximately 2:30 p.m. Melim called Saucer into his of- fice and told him the Company was being forced to let him go because of Respondent's objections.='Saucer turned in his work badge and left immediately. He has not been em- ployed at Lucky's since that time. On September-18 at 7 a.m. Saucer went to Respondent's hiring hall and again spoke with the man he described as the dispatcher. On this occasion Saucer testified in a man- ner similar to what he had said before and declared that on September 18 he spoke to one of three men sitting behind the glass dispatcher's cage at the hall-the same man he had observed other men in line before him speak to about a dispatch slip. From these events the General Counsel concludes that the person to whom Saucer spoke was act- ing as dispatcher that mormng'. On September 18 Saucer asked for permission to sign Respondent's out-of-work list and was asked if he had a "union card." Saucer asked if the dispatcher meant a Local 70 union card and was told "yes." When Saucer admitted that he did not have such a card, he was told "then there is no possibility I can dispatch you or let you sign an out-of- work list." At no time during this conversation did the dis- patcher point out any hiring hall rules to Saucer, nor indi- cate that Saucer might not be complying with them. Fur- ther, he did not suggest that there might be another list INTL. BROTHERHOOD OF TEAMSTERS, LOCAL 70 209 other than "out-of-work list" which Saucer should have requested. Saucer immediately left the hall upon being re- fused. By this final refusal Respondent succeeded in totally foreclosing every possible avenue to Saucer's obtaining a job with any company with whom Respondent has an ex- clusive hiring arrangement, after first denying him a dis- patch and forcing.him out of the job at Lucky's because he was not a member. They now prohibited hun from even getting on their waiting list for a job, thereby closing the one possible avenue in their exclusionary approach to Sau- cer. D. Discussion A brief recapitulation of the facts described by King and Saucer, both of whom I credit, shows that Respondent's dispatcher, Eben, stated flatly to James A. King that he would not give him a dispatch slip because King "didn't have a book." Respondent's Business Agent Andrade told him the same thing not more than an hour later . Again on June 9 when King tried a second time to get dispatched to Lucky's, he was kept waiting in the hiring hall for a long period of time while Eben "checked out" whether or not he could give King a dispatch, then was told once more by Andrade that immediate dispatch was not possible since King "did not have a book." Subsequently, on June 9, An- drade told Lucky Supervisor Roy Howe that since King was not a "book carrying member of Local 70" at the time, he could not work at Lucky's. The following day, June 10, Andrade repeated the same thing to John Martin, Lucky's industrial relations manager, and dispatcher Eben told Howe there was "no way" King could get dispatched since he was "not a book carrying member of Local 70." Law- rence Saucer was asked by the dispatcher on June 10 whether he had a "Local 70 union card" and when Saucer said "no," he was told that since he did not, he could not be dispatched to the job. In each of the incidents described above, it is clear that the sole reason why Respondent would not give a dispatch slip was because the man in question was a nonmember. The law is clear that in such circumstances such a refusal in an obvious violation of the Act. The General Counsel cites the case of Brotherhood of Teamsters & Auto Truck Drivers Local No. 70, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America (Cal- ifornia Trucking Association), 188 NLRB 305 (1971). A sim- ilar set of facts were established. In the cited case, the issue which was litigated was whether in violation of Section 8(b)(2) and (1)(A) respondent had discriminatorily refused to register and dispatch the charging party, Emery Brooks, under an exclusive job referral system operated by respon- dent under contracts with California Trucking Association and other employers. In this case Local 70 operates an exclusive hiring hall pursuant to its contracts with various employers. It is contractually provided (as essentially re- quired by decisions under the Act) that: Selection of applicants for referral to jobs shall be on a nondiscriminatory basis and shall not be based on, or in any way affected by, union membership, by- laws, rules, regulations , constitutional provisions, or any other aspect of union membership , policies or re- quirements. In the case involving Brooks, he testified that he had been a member of the Teamsters Union since 1951 , succes- sively Local 78 and 302, holding various truckdriving jobs in the San Francisco Bay Area. After he was laid off his job at Safeway Stores on October 31, he sought but failed to obtain work through the hiring hall of Local 302. About November 8 he went to Local 70's hiring hall in San Fran- cisco. At the dispatch window, he asked William C. Fa- gundes, one of the three dispatchers on duty, if he could sign the list for a job referral. Fagundes inquired into his union membership . Brooks responded he was a member of Local 302. Fagundes told him , "I still can't sign you up unless you are a member of Local 70 . . . . We have too many men out of work ." Some months later on or about January 4, he returned to Local 70 and spoke to dispatcher Fagundes. Again he was asked if he was a member of Lo- cal 70, and he replied in the negative . Fagundes told him he could stay around, but he could not sign him up on the list. On January 27 at the hiring hall when he replied to Fagundes that he had not become a member of Local 70, he was told that he could not be signed up as they had too many men out of work. On February 4 Brooks came to the Local 70 offices and spoke to LeRoy Nunnes, a business representative . He said he had a job with Sealand and would like to transfer membership from Local 302 in order to obtain clearance for the job from Local 70. Nunnes told him he could not be hired on this job unless he was a member of Local 70. An arrangement was then made for Brooks to be interviewed by Local 70's executive board on March 3. On the same day, after seeing Nunnes, Brooks went to the hiring hall and spoke to a dispatcher, other than Fagundes, again without success. On February 10 or 11 Brooks made a further effort to register with the Local 70 hiring hall. Fagundes said he could not sign him on because he was not a member. On March 3 Brooks ap- peared before the executive board, following which he was told by one of the participating union officers that he was now a member of Local 70. The next day he paid $20.75 to Local 70' and was given a receipt showing $10.25 for dues and the remainder covering the fee in transferring from Local '302. On this day, March 4, he was registered at the hiring hall and dispatched to a job by Fagundes, and there- after was' able to obtain regular referrals from List A. The only, reason why King and Saucer were refused clearance from the hiring hall was solely and only because they were not members of Local 70. It should be noted that the testimony of both King and Saucer was not refuted in any way by the Respondent. It is therefore clear that de- spite the language in Local 70's contract which is written in a manner to comply with,the requirements of the Act, the language' of the contract was not adhered to by Local 70, and the basis for the refusal of giving a referral to Lucky Stores to these two men was because they were not members ' of Local 70. This is a clear violation of Section 8(b)(1)(A) and 8(b)(2). It is further to be noted that the Respondent again violated Section 8(b)(1)(A) and 8(b)(2) by refusing to allow Saucer to sign its out-of-work list. Under Section 2(13) of the Act, it is irrelevant whether 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the person at the dispatch window on the morning of June 20 had actual authority to act on behalf of Respondent, since he had apparent authority to so do. He was sitting at the dispatcher's window giving dispatch information, and gave no indication to Saucer that he lacked the authority to say what he did. Under similar circumstances, the Board has repeatedly held unions liable for such conduct. This is so even in instances where it is clear the alleged agent was not even arguably a dispatcher, but rather a mere- clerical employee. See Construction and General Laborers' Union Local 304, Laborers' International Union of North America, AFL-CIO (George D. Willis), 191 NLRB 764 (1971); Car- penters District Council of Denver and Vicinity (Hensel Phelps Construction Co.), 222 NLRB 551 (1976). It should be further noted that Respondent's violation of Section 8(b)(1)(A) and 8(b)(2) has resulted in the Board's issuing a broad remedial order requiring that it "cease and desist from causing any employer to discriminate against any employee." The citation for the statement is Brother- hood of Teamsters & Auto Truck Drivers, Local 70, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen, & Helpers of America (Sea-Land of California, Inc.), 197 NLRB 125 (1972). Respondent's brief states that the case should be dis- missed because of failure to join Lucky Stores as a respon- dent in the instant case. The point is made in the General Counsel's brief that: It is clear that under both Board law and the terms of Respondent's collective-bargaining agreement with Lucky's, Respondent's only legitimate concern should be that Lucky's new employees are obtained through its hiring hall. This was not the motivation behind Re- spondent's actions on June 20. Business Agent An- drade-told Warehouse Supervisor Melim at 10:00 a.m. that he was upset because "Lucky's had hired a man ... who was not a member of our union," and insist- ed that Lucky's was breaking the contract by hiring Saucer while there were "minority members" waiting for jobs. Later that day, when he phoned Industrial Relations Manager Martin and threatened to strike, the entire conversation was devoted to the fact that Saucer was a member of 853 and not a member of Respondent. There was no mention made of the fact that Saucer had not obtained a dispatch slip. It is irrel- evant for purposes of the Act thatLucky's could law- fully have been required to terminate Saucer because he had not come through the hiring hall. Once Re- spondent based its decision on nonmembership con- siderations, which it obviously did, it violated Section 8(b)(1)(A) and 8(b)(2). Amalgamated Meat Cutters and Butcher Workmen of North America, Local 576, 201 NLRB 22; Local 305, United Association of Journey- men and Apprentices 'of the Plumbing and Pipe Fitting Industry of the United States and Canada, 211 NLRB 826 (1974). It is clear from the facts of record that but for Respon- dent's violation of the Act, none of the events which have been described above would have occurred. In any event it is equally clear that none of the facts related, supra, were initiated or placed in motion by Lucky Stores. Therefore, they are not a necessary party to the action, and I dismiss the argument made by Respondent's counsel in this con- nection as being without merit. CONCLUSIONS OF LAW 1. By refusing to refer King and Saucer for employment to employers with whom it has exclusive hiring hall agree- ments because these men were not members of Local 70, Respondent has caused or attempted to cause employer discrimination in violation of Section 8(a)(3), and has thereby engaged in and is engaging in unfair labor practic- es within the meaning of Section 8(b)(2) and (1)(A) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. I-recommend that Respondent notify Lucky Stores and other employers with whom it has exclusive referral agree- ments, in writing, with a copy to King and Saucer, that it has no objection to their employment and will not refuse to register or refer them or any other job applicant from em- ployment through its hiring hall procedures because they lack membership in Local 70. It shall also be recommended that Respondent make both King and Saucer whole for any loss of earnings suffered by reason of the discrimina- tion against them with backpay computed in accordance with the formula in F. W. Woolworth Company, 90 NLRB 289 (1950), and with 6 percent interest, as prescribed in Isis Plumbing and Heating Company, 138 NLRB 716 (1962). ORDERI Upon the basis of the above findings of fact and conclu- sions of law, and upon the entire record in this case, it is recommended that Respondent, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local 70, Dublin, California, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Refusing to refer James A. King or any other appli- cant for employment to employers within its territorial ju- risdiction because of nonmembership in Local 70, or any other union. (b) Refusing to refer Lawrence Saucer or any other ap- plicant for employment to employers within its territorial jurisdiction because of nonmembership in Local 70, or any other union. In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations -Board " INTL. BROTHERHOOD OF TEAMSTERS, LOCAL 70 (c) In any manner restraining or coercing employees in the exercise of their rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act. (a) Make both-James King and Lawrence Saucer whole for any loss of pay they may have suffered because of the discrimination practiced against them in the manner set forth in the section of this decision entitled 'T iie Remedy." (b) Notify Lucky Stores and other employers with whom it has exclusive referral agreements, in writing, with copies to James A. King and Lawrence Saucer, that it has no objection to their employment and that it will not refuse to register or refer Saucer and King or any other job appli- cant through its hiring hall procedures because they lack membership in Local 70. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all rec- 211 ords pertaining to employment through its hiring halls, and all other records necessary and useful in determining the amount of backpay due. (d) Post at its business offices, hiring halls, and meeting places copies of the attached notice marked "Appendix." Copies of said notice, on forms provided by the Regional ,Director for Region 20, after being duly signed by the Re- spondent's official representative, shall be posted by it im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to members are custom- arily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 20, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith.