Local Union No. 174, Teamsters

690 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD Local Union No. 174, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent (Totem Beverag- es, Inc.) and Michael G. Ewing and Stephen T. Leighton. Cases 19-CB-2559 and 19-CB-2565 November 1, 1976 the Company to give "fair consideration" to Respon- dent's nominees. The new section 30 further contains a procedure for the resolution of grievances arising over the Company's failure to provide the 3 days' notice or to give fair consideration to the nominees and, in the event the grievance procedure does not result in a settlement, permits either party to "imple- ment, any economic persuasion deemed expedient DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On July 8, 1976, Administrative Law Judge Roger B. Holmes issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief, and Charging Party Michael G. Ewing and the General Counsel filed- answering briefs. 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, as modified herein, and to adopt his recommended Or- der. We agree with the Administrative Law Judge's conclusion that at all material times an exclusive re- ferral arrangement existed between Respondent Union and Totem Beverages, Inc., herein called the Company. In so doing, however, we do not adopt his rationale insofar as it is based on his finding that the language of the hiring provisions of the parties' cur- rent contract, in itself, establishes the existence of an exclusive hiring hall system. The record discloses that Respondent is a party to a collective-bargaining agreement with Allied Em- ployers, Inc., an employer association of which the Company is a member. Concededly, prior to October 1975, section 30 of that agreement contained an ex- clusive hiring hall procedure. However, due to the expressed dissatisfaction of various employers bound to that contract, including the Company, with re- spect to the caliber of employees referred by Respon- dent under that procedure, section 30 was revised. On October 28, Respondent and the Company adopted and agreed to implement the new section 30. The new section 30, which is fully set forth in section III, D, of the Administrative Law Judge's Decision, requires the Company to provide Respondent 3 days' notice when additional employees are needed, grants Respondent the right to "nominate" individuals for employment during that 3-day period, and requires 11 The Administrative Law Judge concluded, inter alga, that an "examination of the literal language of the new section 30 indicates that the parties intended [sic] and did in fact continue the exclusive referral system which had heretofore existed." However, in- asmuch as the impetus for the new section 30 lay in the employers' dissatisfaction with the former hiring procedure, which admittedly provided for an exclu- sive hiring hall arrangement, we find no basis for the Administrative Law Judge's conclusion'that the par- ties, by adopting the new section 30, intended to con- tinue the hiring'system previously in effect. Further- more, although the language- of the new section 30 clearly places substantial - restrictions on the Company's freedom in hiring, that provision by its terms does not preclude the Company from consider- ing for employment, or in fact hiring, applicants who have not been nominated by Respondent. Thus, con- trary to the Administrative Law Judge, we find that the literal language of the new section 30 does not invest Respondent with an exclusive'right of referral. We conclude, however, that, in the totality of the circumstances here, including the substantial re- strictions placed on the Company by the new section 30, the interpretation given that provision by Re- spondent and the Company, and the practice of the parties operating under that provision, the existence of an exclusive referral arrangement has been estab- lished. Thus, with respect to Respondent's and the Company's interpretation of the new section 30, we particularly note the following facts, based on credit- ed testimony: In late October 1975, Bennett, the Company's secretary-treasurer, informed Simmons, Respondent's executive official, that the Company wished to fill two permanent positions with Ewing and Leighton, employees previously referred by Re- spondent on a temporary basis. At that time Sim- mons replied not merely that Respondent would nominate individuals to be considered by the Com- pany for those positions, but rather it would supply the Company with employees. Thereafter, on No- vember 1, Simmons phoned Bennett and notified the latter that he had a nominee to fill one of the posi- tions. Bennett at first protested, but later expressed the Company's view that it had no alternative other than to hire Respondent's nominee. While Simmons 226 NLRB No. 108 LOCAL UNION NO. 174, TEAMSTERS at that time replied that the Company's only obliga- tion under the new section 30 was to consider Re- spondent's nominee, Simmons' candid admission at the hearing that had he agreed that the Company could fill either position with Ewing or Leighton, "they would be working there," belies his assertion to Bennett. That Simmons in fact viewed the Company's obli- gation as something more than merely giving consid- eration to Respondent's nominees, and that he made his view abundantly clear to the Company, is further evident from his conversation with Bennett on No- vember 3. On that date, Simmons phoned Bennett and advised him that Respondent had selected a nominee for the remaining permanent position. Ben- nett again protested, stating that it was his impres- sion from his prior conversation with Simmons that the Company would-be permitted- to place either Ew- ing or Leighton in that position and asking Simmons why he would not let the Company do so. Signifi- cantly, Simmons responded only that Bennett must have been mistaken because he had not stated "at any time that [the Company] could hire one of them permanently." Soon thereafter, Respondent's nomi- nees were hired by the Company. Simmons' view was later confirmed by his letter of'November 26, sent to the Company as well as all other employers bound to the contract, which stated, inter alia, "The Union, under section 30; has the right to refer both tempo- rary and permanent help." (Emphasis supplied.) It is thus clear that Respondent considered the new sec- tion 30, in effect, to constitute an exclusive referral procedure and that the Company, albeit reluctantly, also so regarded that provision. Furthermore, we find that the consistent practice of the parties operating under the new section 30 evi- dences the existence of an exclusive referral system. Thus, in addition to the fact that the Company hired Respondent's two nominees, the record also discloses that, since the implementation of the new section 30, Respondent has referred some 14 individuals for per- manent positions with other employers bound to the contract and, without exception, these individuals have been offered employment by those employers,' Accordingly, considering all the circumstances herein, sand particularly the above-discussed factors, we conclude that at all times material an exclusive hiring hall arrangement existed between the parties. 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 and hereby 691 orders that the Respondent, Local Union No. 174, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Indepen- dent, Seattle, Washington, its officers, agents, and representatives, shall take the action set forth in the said recommended Order. t In his Decision, the Administrative Law Judge specifically found that, since the implementation of the new sec 30, all of Respondent' s nominees for permanent positions have -been hired by the employers bound to its contract We note, however, that in early October 1975 Respondent nomi- nated Leighton for a permanent position with an employer who had previ- ously adopted the new provision and that Leighton, although offered the position, declined to accept it Thus, while the Administrative Law Judge's finding that all nominees actually were hired by the employers is not pre- cisely correct, the record clearly shows that all such nominees in fact were offered employment We further find that this previous -nomination of Leighton by Respondent is insufficient to warrant a different result herein DECISION STATEMENT OF THE CASE ROGER B. HOLMES, Administrative Law Judge: The origi- nal charge in Case 19-CB-2559 was filed on November 12, 1975, by Michael G. Ewing, herein called Ewing, and the amended charge in that case was filed on December 29, 1975,' by Ewing. The charge in Case 19-CB-2565 was filed on December 1, 1975, by Stephen T. Leighton, herein called Leighton. An order consolidating cases, consoli- dated complaint, and notice of hearing was issued on De- cember 31, 1975, on behalf of the `General Counsel of the National Labor Relations Board, herein called the Board, by the Regional Director for Region 19. The consolidated complaint alleges that Local Union No. 174, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, herein called the Respondent, has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the National Labor Relations Act, herein called the Act. The Respon- dent filed an answer to the consolidated complaint and denied the commission of the alleged unfair labor prac- tices. The hearing was held before me on April 6 and 7, 1976, at Seattle, Washington. Briefs were timely filed by May 12, 1976, by the General Counsel and by the Respondent, and have been duly considered. Upon the entire record and based upon my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION Totem Beverages, Inc., herein called Totem, has been at all times material herein a State of Washington corporation with an office and place of business located at Seattle, Washington, where it is engaged in the sale and distribu- tion of malt beverages. - During the 12 months preceding the issuance of the con- solidated complaint, which period is representative of all 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD times material herein, Totem, in the course and conduct of its business operations , purchased and caused to be trans- ferred and delivered to Totem - goods and material's valued in excess of $50,000 directly from States other than the State of Washington . During the same period of time, To- tem also did a gross volume of business in excess of $500,000. Upon these admitted facts, I find that Totem has been at all times material herein an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 'II. THE LABOR ORGANIZATION INVOLVED It is admitted that the Respondent at all times material herein has been a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The principal issues presented in this case are: 1. Whether an exclusive hiring hall system has contin- ued to exist between the Respondent and Totem since on or about October 28, 1975, when the Respondent and To- tem agreed to amend the current collective-bargaining agreement insofar as it is applicable to Totem by substitut- ing the terms of a new section 30 entitled "Hiring"-in place of the original section 30 entitled "Hiring of Teamsters and Union Recognition." I - 2. Whether since on or about October 28, 1975, the Re- spondent has operated its hiring hall and referral system in a discriminatory manner without any objective criteria or standards for the referral of unit employees to Totem.2 3. Whether the Respondent on or about November 1 and 3, 1975, failed and refused to refer Michael Gary Ew- ing and Stephen T. Leighton to work as permanent em- ployees of Totem in violation of Section 8(b)(1)(A) and (2) of'the Act for any of the following reasons: (a) pursuant to the operation of a discriminatory referral system with To- tem; (b) because of other arbitrary and invidious reasons;, or (c) for a combination of the foregoing reasons. 4. Whether within the 10(b) period, the Respondent has violated Section 8(b)(1)(A) and (2) of the Act by operating its hiring hall and referral system with Totem and with other similarly situated employers engaged in commerce within the meaning of the Act, pursuant to a posted rule which reads as follows: 3 1 The Respondent's secretary-treasurer, William H Simmons, conceded that the referral system, which existed prior to October 28, 1975, with Totem constituted an exclusive hiring hall arrangement. An examination of the terms of the original sec . 30 of the collective-bargaining agreement, which is in evidence, confirms that fact. 2 In par. 7 of the complaint, the General Counsel alleges that this has occurred "beginning on or about October 17, 1975, and continuing to date" However, the evidence shows that agreement to the terms of the new sec. 30 was made on October 28, 1975, between Kenneth W Bennett, secretary- treasurer of Totem, and William H Simmons , secretary-treasurer of the Respondent Bennett confirmed the agreement by letter dated October 28, 1975. Counsel for the General Counsel correctly points out in his brief that the new sec 30 became effective on October 28, 1975, between the Respon- dent and Totem. EFFECTIVE SEPT 1, 1961 With the exception of heavy construction industry, the only men eligible to register and be dispatched from this hiring hall will be members of General Teamsters Local #174. B. The Background Because of the length of his hair and because of his hav- ing a beard, Ewing received several verbal and written warnings and was subsequently discharged in 1971 from his job at Fortune Transfer in Seattle. Fortune Transfer at that time had a contract with the Respondent, which was referred to by Respondent Secretary-Treasurer Simmons as the drayage and household movement agreement.4 In addition to that contract, the parties had negotiated a sepa- rate letter of understanding with regard to the grooming standards of employees. Ewing sought the assistance of the Respondent concerning his pending termination'by For- tune Transfer. Ewing met with Simmons, who at that point in time was executive assistant to the former secretary-trea- surer of the Respondent, George Cavano, and also with Ed Shea, who was business agent of the Respondent at that time. In reply to Ewing's request that the Union represent him in connection with his difficulties with Fortune Transfer, Simmons expressed the opinion that the employer had the right to make reasonable grooming standards and that the Union was bound by the letter of understanding which had been made part of the contract, with the employer. Sim- mons told Ewing that "we would not go to arbitration on his behalf on his grievance." Simmons suggested to Ewing that his job, his wife, and his family were worth more than "a few hairs on your face," but, Ewing's response was that he was capable of making his own decision in that regard. Ewing filed an unfair labor practice charge with the Board against the Respondent' in September 1971. That charge, was dismissed by the Regional Director for Region 19 in December 1971, and an appeal of the Regional Director's action was denied by the General Counsel of the Board in January 1972. Ewing also filed a charge against the Respondent with the Equal Employment Opportunities Commission in De- cember 1971, and a decision of probable cause was made by EEOC in late 1972. After conciliation by EEOC was unsuccessful, Ewing filed a complaint ' in January 1973 against the Respondent in the United States district court. The court.dismissed the complaint in June 1975. In the interim Ewing had engaged in picketing of the offices of the Respondent in 1971 and again in 1972. He was a candidate for the position of secretary-treasurer of the Respondent, but he lost the election in December 1973 to George Cavano. Ewing testified that there was coverage of his legal actions against the Respondent and the election campaign by the local press and television. Two such arti- I It was stipulated by the parties that a sign bearing that wording had been posted at the Respondent's hiring hall on Airport Way in Seattle at all times material to this case and, that the sign was taken down from the hall on April 6, 1976 4 The facts in this section are based on the testimony given by Simmons and Ewing as well as stipulations by the parties and documentary evidence. LOCAL UNION NO. 174, TEAMSTERS Iles appeared in columns by Rick Anderson in the Seattle Post-Intelligencer newspaper. One appeared on December 14, 1971, under the caption, "To Hair Is Human, to For- give . . ." and another appeared on May 28, 1973, under the caption, "The Teamster Business." Both columns are primarily about Ewing and the events concerning him, but the columns also refer to Simmons by name.' C. Events in July, August, and September On July 1, 1975, Simmons became secretary-treasurer of the Respondent pursuant to selection by the members of the executive board of the Respondent. Simmons succeed- ed George Cavano who had retired on June 30, 1975. In the Respondent's newspaper dated August 15, 1975, Simmons recounted the past events involving Ewing back to the summer of 1971 and concluded with the court deci- sion in Ewing's case on June 11, 1975. In his column enti- tled "Simmons Says," he did not refer to Ewing by name nor to the Fortune Transfer Company, but at the hearing Simmons acknowledged that the article concerned Ewing.6 The August 15 column by Simmons precipitated a two- 5 Simmons' views concerning the news media coverage of union affairs in general were set forth later in his own column , "Simmons Says," in the Respondent's newspaper. In the column for September 15, 1975, Simmons wrote: The news media-radio, television and daily newspapers-is no place to try Union grievances, negotiate contracts, discuss strikes or strike issues or other labor-management concerns. When enveloped in negotiations, some of which are delicate, highly sensitive and volatile, it is not wise to spread these problems or issues through the media. Such does not fall within the instincts of common sense. When Labor leaders, whether local, regional or international are dealing with the livelihood of their membership (and their families) they are dealing directly with much of the heart and guts of life. If they accept this responsibility they had better generate enough strength in themselves and the membership to back solid positions without having to rely on the news media or they'll find their wheels spinning and their work in vain It is disconcerting, to say the least, to observe naive labor leaders orally parading themselves, and the issues in which they are involved, before cameramen and reporters whose chief concern is to stir, develop or report controversy The membership of 174 should develop the understanding that assis- tance, concerning their livelihood, will probably not spring from the news media. Therefore, the membership may expect the officers of 174 to stand aloof from the media and to freely expect not to be subjected to criticism for so doing. To be a Teamster, or any other honest working man or woman, is more noble and builds a better character than you'll find under the hide of an oily-lipped, silver-tongued, smooth-faced smiling reporter This is not a broadside blast against all-they have their bailiwick and problems and there are some honest solid heads in the media, nonetheless, even so, their place is not to stir or mess with 174's con- tracts, negotiations, disputations or other concerns. 174's problems, hopefully, will be settled within the family We have sufficient with our own official publication and mouth to ear, if need be We have con- cerns enough without magnification through the media. 6In his column Simmons stated: In the course of administering Union affairs, many interesting things occur. Some, more than others, are deemed worthy of note. The following is noted with the belief 174 members may be better informed concerning the effects of properly adopted employer groom- ing standards. The name of the member is immaterial in this story and is not used, nor is the name 'of the employer, however, facts and quotes are accu- rate. 693 page letter to Simmons from Ewing on August 25, 1975. The letter for the most part accused Simmons of obscuring "the civil liberties issues of the case by omitting so many facts." Simmons promptly replied by letter dated Septem- ber 3, 1975, to Ewing. The two columns in August and September 1975 by Simmons in the Respondent's newspa- per and Ewing's letter of August 25 , 1975, formed the basis for still another column by Rick Anderson in the Seattle Post-Intelligencer under the heading of "What Simmons Said." That column appeared on September 25, 1975, with During the_ summer of 1971, 1 met with a Business Agent and a member over a problem which arose because the member elected to grow a beard and, to some extent, extend his hair, contrary to estab- lished rules The member had received verbal warnings and at least two written warnings and termination appeared imminent. It was revealed, during the meeting, that the member was marred, with a nice family Following discussion, the member was counseled, in vain, that his livelihood and the welfare of his family was worth much more than a few hairs on the face. The member, nevertheless, elected to maintain his position and, in effect, demanded union representation in arbitration The union refused, on the grounds the member was violating existing grooming standards, and that the employer was acting within the con- fines of the standards, which had been adopted and agreed to the year before, viz: October, 1970. The member suffered termination and in September, 1971, he charged the union, before the National Labor Relations Board, with breaching its duty of fair representation. The Regional Director, an attorney, ruled against him and he appealed. The Board, in Washing- ton D C, rejected his appeal. Thereafter, the member caused the union to suffer charges and en- tanglement involving the Federal Equal Employment Opportunity Conumssion as well as the State's Human Rights Commission and, finally, the member brought a direct civil action in the United States District Court. The member charged me, former Business Agent Ed Shea, the em- ployer, and others with a continuing conspiracy designed to deprive him of guaranteed federal rights All this takes and took time, money, effort, hearings, depositions, formal pleadings, arguments, documents, affidavits, interviews, etc., etc., plus a considerable amount of posterior pain. The member actual- ly picketed 174 and otherwise sought to embroil himself in union mat- ters. He also authored an article in the "Seattle-Semi", a dissident pub- lication. These things are disclosed that 174 members may know that some of the brush fires we are called upon to extinguish are deliberately set with a design on enjoying a hot-foot (ours, of course). Be that as it may, on June 11, 1975, four years later, the United States District Court issued its opinion. The Court, among other things, said: In this action, plaintiff alleged that he was wrongfully discharged by his former employer . . . and that his Union, Local 174, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, breached its duty of fair representation because it refused to take his grievance to arbitration, and that various indi- viduals conspired to deprive him of his employment and related ben- efits. Plaintiff was discharged for admittedly violating a grooming rule which prohibited long hair and beards. The rule was agreed to by the Union and the Truck Owners' Association of Seattle, acting on be- half of Plaintiff's employer and other employers, in October of 1970. Plaintiff alleged that the rule violated Title VII of the Civil Rights Act of 1964. The rule is a valid one and the union was under no duty to press an employee's grievance involving violation of the rule. Since no breach of the union's duty of fair representation exists, the cause of action . must fail. The cause of action alleging conspiracy is DISMISSED ... 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quotes from the foregoing documents and with commen- tary on Simmons and Ewing by the columnist. Meanwhile, both Ewing and Leighton had begun work in July 1975 for Totem where they continued to work with- out interruption until the third week of September 1975. They were dispatched as "temporary employees" under the old system in effect at that time. The "Hiring Hall- Member's Record" card for Ewing shows that he was dis- patched to Totem on July 28, 1975, and again on August 19, 1975, during this period. A similar record for Leighton indicates that he was dispatched by the Respondent to To- tem on July 14, 1975, and again on July 21, 1975, during this period. The secretary-treasurer of Totem, Bennett, told Ewing and, Leighton, individually, that he would like to hire each one of them as permanent employees because they were doing a good job. Bennett related a conversation which he had about the third week in September 1975 with Dick Inks, business agent of the Respondent. During that conversation, Ben- nett was told that he could no longer employ Ewing or Leighton as permanent employees or as temporary employ- ees. Bennett brought up the fact that Totem had acquired the Miller line of beer from another company, Associated Beverage, in 1969. Bennett told Inks that it was his recol- lection that Ewing was working for Associated Beverage in 1969, so in his opinion Ewing would have been eligible to transfer to Totem under the Union's contract where one beer wholesaler had acquired a brand of beer from another beer wholesaler. Bennett pointed out to Inks that Totem had acquired five employees of Associated Beverage in 1969, so Bennett wanted to see whether Ewing could come to work for Totem on n-a permanent basis under the terms of the contract. Inks informed Bennett that he would have to discuss the matter with Simmons, but he said that if Ewing was moved to the top of the list and given a permanent job "that there would probably be some static from others ." who were on the list seeking permanent jobs.' Ewing said that Inks told him that Inks was pulling him off of the truck and everybody else at Totem. Ewing stated that Inks told him that they had been there long past the 5-week dispatch and that everybody was being rotated. Ewing asked Inks about another specific employee who was working on a temporary basis for another beer distri- butor, and Inks assured him that everyone was being rotat- ed. Inks said that it was not a "personal" thing. Ewing stated that Inks told him that "George Cavano is no longer head of the union, and there is no animosity toward me, and I believe he further stated that Bill Simmons is not In the version given by Inks, he added the reason for the "static" he would receive as being "because it was not the proper thing to do." Inks also added that he told Bennett that since Ewing did not transfer to Totem in 1969 at the time of the transfer of the Miller line, Totem could not employ Ewing on a permanent basis I have found Bennett's testimony with regard to this conversation, and other conversations to be related later, to be the most reliable and accurate version Bennett impressed me as being a truthful witness In addition, at the time of that conversation, Inks had been a business agent of the Union for less than 3 months He was not personally familiar at that time with the 1969 transfer, and said he had to rely on what he was told. I conclude that at the time of the conversation Inks was not positive in telling Bennett that the contract provisions on transfer did not apply to Ewing, but instead he indicated than he would discuss the matter with Simmons. vindictive, and he's not that kind of man, and this is not a personal thing, and that, as I recall, ended that morning's conversation." 8 Over the weekend Ewing telephoned Inks and advised him that Ewing possessed the documentary evidence re- garding the fact that he had worked for Associated Bever- age in 1969. He also gave Inks the home telephone number of his attorney who had Ewing's employment records in the event that Inks wanted to verify anything. Inks in- formed Ewing that Inks would have to talk with Simmons, and Simmons would have to make the decision. Inks did make a correction in the list of employees on the Union's beer list insofar as the rank of Ewing's name was concerned. Ewing's name was 41st on the beer list for September 3, 1975. Inks corrected the placement of Ewing's name to the eighth position on the list for the Oc- tober 3,4975, list. Inks testified that he informed Simmons of the change in placement of Ewing's name and that Sim- mons told him "whatever is right, we have to do...." On Monday, September 22, 1975, Ewing reported to the Respondent's hiring hall on Airport Way South. Ewing was not dispatched to Totem that day although he observed that three other persons were dispatched to Totem by the Respondent on September 22. Ewing did receive a referral on Friday of that week, according to his hiring hall record card, and reported for work once again at Totem on Mon- day, September 29, 1975; and continued,to work for Totem for the remainder of that week, October 3, when his tempo- rary referral ended. The hiring hall record card for Leigh- ton indicates that he was referred by Respondent back to work for Totem on September 25, 1975.9 D. The Events in October and November 1975 Richard L. King is the secretary and manager of Allied Employers, Inc., which he described as a nonprofit em- ployer association representing approximately 300 em- ployer-members. Allied negotiates about 160 collective- bargaining agreements with about 85 different labor orga- nizations in the States of Washington and Alaska. For some time King had talked with Simmons about making a change in section 30, "Hiring of Teamsters and Union Recognition," as set forth in the collective-bargaining agreement negotiated between Allied and the Respondent 8 Inks' version is considerably shorter. Inks said that he just told Ewing that he had been there over his 5-week dispatch, but that he could go ahead and finish out the week and report to the hall on Monday morning. Inks said that he told the same thing to a couple of others at Totem and also to certain employees at other beer distributors In considering these two versions, I have credited the testimony given by Ewing as being the detailed and complete account It appeared to me that Ewing was testifying truthfully in this regard and with regard to the rest of his testimony in this proceeding Note also the contents of the conversa- tion which he related Ewing said that he was being told by the business agent of the Union that there was no animosity towards him, Simmons was not vindictive, and the action being taken was not a personal matter. Such assurances, if true, would not serve to enhance the theory of the Charging Party's case 9 The facts in the foregoing section have been based on the testimony of Ewing, Bennett, Simmons, and Inks, as well as the documentary evidence identified in the statement of facts. As previously indicated, I have credited the testimony of Ewing and Bennett where there are differences in the ac- count of the events LOCAL UNION NO. 174, TEAMSTERS which is known as the "Beer and Wine Agreement." 10 The effective dates of the agreement are from May 15, 1974, through May 14, 1977. The complaints from the employers, according to King, included such things as an employee in house slippers being sent out by Respondent to perform work and an employee being sent to work who had previ- ously been terminated for drunkenness. King had voiced these complaints to Simmons in the past. In a telephone conversation in October 1975, Simmons advised King that he had negotiated a change in the wording of section 30 with K & L Beverage and with Rainier, which are the only two beer distributors in King County, Washington, who were not members of Allied. Simmons told King. that he would send a copy of `the change to him. and that if, King wanted to make the change in section 30,4 "you may have it." A couple of days later, King received a copy of the new agreement between the Respondent and K & L. After con- sideration and study of the change and submission of the proposed change to the employers involved, the following letter of understanding was reached by the parties: LETTER OF UNDERSTANDING It is agreed that the following language, provisions, and paragraphs shall replace and supplant, in toto, the language, provisions and "paragraphs of Section 30, of the current Labor Agreement, i.e., Section 30, is amended to read as follows: Section 30 Hiring 30.01 The Employer must give the Union three (3) working days notice when additional employees are needed and the Union shall have the right, during said three (3) days, to nominate applicants for employ- ment. The Employer shall receive applications from and shall give fair consideration to Union nominees and shall not discriminate because of union member- ship or non-membership, race, color, sex, age, religion or national origin. 30.02 In the event a grievance arises-concerning fail- ure to give notice as herein required or discrimination or the fairness of the consideration given nominees, the grievance shall be settled exclusively according to the terms and provisions of this Section and' no other Section or grievance procedure of any kind shall be available or relate or apply. Grievances arising under the provisions of this Section must be settled under the provisions of this Section, i.e., 'the settlement of dis- putes Section shall have no application.' Grievances not submitted within ninety (90) working days of any given incident are barred. 30.03 Two representatives of the Employer and two representatives of the Union shall, within ten (10) cal- to It is admitted that, at all times material herein, Totem has been a party to a collective-bargaining agreement with the Respondent which designated the Respondent as the sole and exclusive collective-bargaining representa- tive of a unit of employees described in that agreement as "All employees of the Employer whose job classification is set forth in this Agreement " The fob, classifications set forth in the collective-bargaining agreement include, inter alia, drivers, helpers, loaders, warehousemen, and bull-lift drivers 695 endar days of submission of a grievance, meet as a special Employment Grievance Committee, under this Section, to settle the grievance. If said Committee, ex- cept for agreed postponements, cannot, by majority vote, settle the grievance within five (5) working days, either party may, within ten (10) days thereafter and without liability therefor, implement any economic persuasion deemed- expedient and such shall not be deemed a violation of this Agreement. If economic persuasion is not implemented within ten (10) days, as herein provided, it may not be implemented under this Section. DATED THIS 17th DAY OF OCTOBER, 1975. /s/ Richard L. King For Allied Employers, Inc. /s/ W. H. Simmons For Teamsters-174 Thereafter, Allied wrote a letter to the Respondent on November 6, 1975. In pertinent part the letter states: Pursuant to your letter of October 28, 1975 and the Letter of Understanding between Local # 174 and Al- lied Employers, Inc. pertaining to the revision of Sec- tion 30 "Hiring". The below listed Employer agrees to such revision and we will adjust our files accordingly. C & B Distributing Co. Imperial Beverages Co., Inc. John Kochevar & Sons Totem Beverages, Inc. Valley Distributors Also during this period of time Kenneth Bennett of To- tem discussed section 30 with Simmons. On Friday, Octo- ber 24, 1975, they discussed the subject at a luncheon meet- ing. Bennett described the old section 30 as "intolerable" because of the problems caused by the-dispatch of persons in the order that they signed in at the hiring hall. Bennett said, "We were forced to use people that really didn't de- serve to be, didn't belong in the industry, they hurt our company, and they hurt-others, and we wanted to get those people out." Bennett said that this subject had come up many times and that the employers wanted to have section 30 changed so that it would be more workable for the em- ployers-and the Union. Because two permanent drivers had quit at Totem, Ben- nett had two vacancies at the Company. During the lun- cheon meeting, Bennett told Simmons that the Company had two good persons who "had been working for us on a temporary basis and we would like to have them back, and that being Gary and Steve." Bennett said that Simmons asked if Steve Leighton was the person who had been re- ferred to K & L and Bennett told him that he thought that he was the one. Bennett said that he had understood that Leighton had turned down the job referral to K & L, so "I think I teed to excuse Steve from his not taking a job by saying it was a family problem with him. He had some young children and a wife that worked, and it was a night 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD job and he didn't,feel he could take a night job." Bennett also recalled that Simmons told him that the Union would supply him with good employees and for him not to worry. Bennett said,, "I would say that he said `We'll take care of you' with kind of a wink, a mischievous look, if you will. But as I said, he and t have done battle before." On Tuesday, October 28, 1975, Bennett became "a little upset" after receiving three complaints from customers within a period of 15 minutes concerning two temporary employees whom the Respondent had dispatched to To- tem. Bennett telephoned Simmons that day and stated: Well, I was a little upset and I told him that the people that we were getting from the hall, from the hiring hall, as temporary employees, were terrible, and we couldn't operate like that. I asked him if we couldn't implement the new Section 30, because we needed two full-time permanent employees. Our cus- tomers had told us-we had been threatened with loss of some customers if we didn't get somebody who would be permanent, somebody they would get to know, somebody that is and would be responsible. That's when I, when he told me that we could not implement the new Section 30 yet because it hadn't been signed by Allied Employers. Allied Employers represented us. I told Bill that he knew that Allied was our bargaining agent. And as far as we were con- cerned, it was signed and a valid contract. Apparently there was a difference of opinion between Mr. Sim- mons and the rest of the industry, because of the sepa- rate contracts that he had with many of the wholesal- ers. Well, I asked him if we could, if we could keep, have, if I could hire Steve and Gary for the rest of that week, or until such time as the new section of the hir- ing hall procedure would be initiated. He told me yes, but there were stipulations, and the stipulation was that I would agree that I was speaking not for the industry, I was speaking only for Totem Beverage, if he allowed the new section to be initiated at that time, and that letter is the result of our conversation. On the'same day, October 28, Bennett sent a handwrit- ten letter to Simmons in which Bennett confirmed the ac- ceptance of the new section 30 insofar as it applied to To- tem. In the same letter, Bennett also referred to the Union's grant of permission to Totem to employ two per- sons temporarily for October 29, 30, and 31. Simmons recalled that Bennett indicated that he wanted two permanent employees, but Simmons did not recall that Bennett mentioned Ewing and Leighton by name. Sim- mons said, "I'll say I inferred from what he implied that he was interested in hiring Mr. Ewing, but I don't recall any specific request." ii Bennett instructed his foreman to contact Ewing and Leighton and have them return to work for Totem an 11 As indicated earlier, I have credited Bennett's testimony in this pro- ceeding because he gave the most reliable and accurate account of these numerous events Wednesday, October 29, 1975.12 In separate conversations with Ewing and Leighton, Bennett explained the circum- stances under which each one was working at that time and expressed the hope that they would be referred to Totem by Simmons on Friday, October 31. However, Bennett was unable to contact Simmons on that Friday, so Ewing and Leighton were told to report for work the next Monday, which they did. On Saturday morning, November 1, Simmons tele- phoned Bennett. Simmons told Bennett that he had a "nominee" to fill one of the two positions which Bennett had requested. Simmons said that the person was John Simmons, and after being asked, assured Bennett that John Simmons was not a relative of William Simmons. Bennett inquired whether John Simmons had experience,_and Sim- mons said that he did not in the beer industry but that he would be a good employee. Bennett asked about the other position and "although he didn't specifically say so, but it was my impression that we would be allowed to keep one of them, and which one was going to be up to us. " i Also during the conversation on November 1, Bennett said he was upset because Simmons was referring a person who was inexperienced in Bennett's view, and he expressed his "dislike for the union being able to refer employees to us without us being really able to select our own, so we had a little conversation about that." Bennett stated: "I told him I guess we don't have any choice, under the circum- stances, and he said, all he said was we were obligated under the new section, we were obligated to consider his referral, and that was all." Bennett said that he expressed an unwillingness to take John Simmons, but he felt that he had no alternative. 14 The following , Monday morning, November 3, 1975, Simmons telephoned Bennett once again. Simmons said that he had a second nominee for Totem, and he was Mack Harada. Bennett protested again. Simmons said that they would be ready to come to work the next day, but Bennett said that both he and his associate were going to be out of town all of that week at a sales convention, so he asked that they not be sent to Totem until November 10. Bennett also told Simmons that it was his impression that Totem was going to be able to keep either Ewing or Leighton and asked Simmons why he would not let Totem do that be- cause they were good qualified people. Simmons told Ben- nett that he must be mistaken, because Simmons said that he did not infer or state at any time that Totem could hire ,one of them permanently. Simmons wrote a confirming letter to Bennett on No- vember 3, 1975, in which he stated: This will confirm the writer's conversation, this date, with Mr. Bennett concerning referrals for permanent employment. 12 Earlier in the month Ewing had returned to Respondent's hiring hall on October 6, had been referred to Totem on October 13, and worked I week through October 17. 13 Simmons denied that he said anything which could have given Bennett such an impression For the reasons previously stated, I have accepted Bennett's version` of these events 14 At the hearing Bennett explained his reasons for feeling that he had no alternative He pointed to the grievance procedure in the collective-bargain- ing agreement and commented, "We had suffered through a strike over a grievance, and we were unwilling to face that again." LOCAL UNION NO. 174, TEAMSTERS Local 174 hereby refers: (1) John Simmons and (2) Mack Harada. It is understood these men will report at 8:00 A.M., Monday„ November 10, 1975. On Friday, November 7, Bennett informed Ewing of the telephone conversation which he had earlier that week with Simmons and also about the letter of November 3. Bennett said that John Simmons and Mack Harada were being re- ferred to Totem and that it did not look very hopeful that Ewing would be a permanent employee. However, Bennett instructed Ewing to report for work on Monday, Novem- ber 10, because Bennett was going to discuss the matter with Richard King of Allied Employers. On Monday, November 10, John Simmons and Harada reported for work at Totem. Bennett told Ewing about the referrals and said "we had no alternative in my own mind but to accept the two referrals from Mr. Simmons." Ben- nett mentioned the grievance provision to Ewing and that he was not going to fight that battle again. Bennett stated, "We had a contractual obligation with Local 174 and we were going to live by that contract." 15 Neither John Simmons nor Harada had previously worked for Totem. John Simmons was assigned the route driver's job, and Harada was assigned to the Totem ware - house. lb Another person who had been working in the warehouse"-was moved from the warehouse to the route driver's position. Bennett testified at the time of the hear- ing on April 6, 1976, that both John Simmons and Harada were performing their work in a satisfactory manner. John Simmons testified that he had not worked for To- tem prior to November 10, 1975, and had not previously worked in the beer and wine industry in Seattle. His em- ployment immediately preceding his work at Totem was with Texaco, Incorporated. William Simmons described him as "spearheading an organizational effort at Texaco." A Board-conducted election was held on October 30, 1975, at the Texaco facility in Seattle, and the Respondent lost the election. William Simmons described the surrounding circumstances of the Union's organizing' campaign and said, "As this thing began to tighten up a little bit, appre- hension began to grow in connection with the security of employment at Texaco and particularly John Simmons' se- curity, because of his activities in connection with organiz- ing, and we made an, a general proposal to John at that time that if we lost the election, we would do what we could to find him employment, and that's all we did with John." In describing his previous job as a route driver for Texaco, and comparing it with a route driver's job at To- tem, John Simmons concluded, "The only things that aren't similar with things I have done at Texaco are the product that we're hauling." Working under the coverage of the'beer and wine agree- ment is a desirable job, according to William Simmons. He estimated that- out of about 7,000 total members in the 15 Bennett acknowledged that neither Simmons nor any other agent of the Respondent had threatened him with economic action if he did not hire either John Simmons or Harada. 16 Harada had previously worked at K & L Beverage primarily in the warehouse. 697 local union, probably 230 to 250 of them work in the beer and wine industry. Simmons testified: The beer and wine contract is one of the finest con- tracts in the nation and probably I have everybody that's not in the beer and wine contract in some other industry in my local, with a desire to get a beer and wine job. So I'd say safely that I probably have about 5,000 members which would gladly move from what they're doing if they could get a permanent beer and wine situation. Because that's a pretty high scale. It's higher than private carriers, higher than cartage, it's higher than sanitation, higher than sand and gravel, it's considered a nice job. When he was asked how a person who wanted to be considered for such a job in the beer and wine industry went about making that known, Simmons stated: Well, I can only speak from experience. I have had people come contact me and ask me to consider them specifically, contact me and ask me to consider them. I don't know any other method they could go about and do it unless they talked to the agents or somebody else and asked to be considered and I have some con- siderations of my own which I have to work on. I have, I just had thirteen people laid off of K and L, I just had ten drivers at Seattle Ready-Mix lose 'their jobs, and these are' what you consider in my line of work as some old timers with 20, 25 and 30 years, and it's my obligation to try to assist these people in secur- ing new employment and these situations are arising daily. They're not something that has a pattern on it, so I have to weigh and consider as things develop, because I may get a request for a permanent man in the beer and wine industry, as much as once a week for five or six weeks in the summertime, and as much as none for four or five months in the wintertime. You're talking about beer and wine industry and there are other industries where I try to refer people for employment and try to keep people working, and there is a lot things I've got to consider when I refer people out for employment. If you're asking whether or not I have written standards or any other kind of standards, no, most of them are in my head. Under the provisions of the new section 30, Simmons has nominated for permanent employment the'following number of employees to these employers: K & L, six em- ployees; Totem, two employees; Sid Eland, two employ- ees; and Odom, five or six employees. The employers have actually hired all of those persons so nominated by Sim- mons even though some were later terminated. Simmons said that some of those employees were not members of the Respondent, and one was a female employee in response to the specific request of an employer for a female worker. Temporary referrals are still handled out of the Respon- dent's Airport Way hiring hall on a "last in-last out" basis unless the employee is requested by name. According to the testimony of Ted Akers, the dispatcher at the Airport Way location, employees are permitted to register for work regardless of whether they are members of the Union. The temporary referrals are sometimes referred to as "extra em- 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees," and the referrals are made for up to 5 days' dura- tion. On November 26, 1975, Simmons sent the following let- ter to the employers in the beer and wine industry with regard to the new section 30: TO ALL BEER & WINE EMPLOYERS: It has been customary, in the recent past, for the Union to refer extra employees on a one week basis. This custom will continue. According to the provisions of new Section 30, a three day notice must be given when there is a need for additional employees. The Union, under Section 30, has the right to refer both temporary and permanent help. The Union, be- cause of industry exigencies, will conditionally allow the privilege of employment of extra help other than strictly according to the provisions of Section 30, pro- vided this privilege remains unabused. One week will be maximum for extra employees unless a specific agreement to the contrary is reached. Abuse may precipitate grievances and/or a total with- drawal of this privilege. On November 30, 1975, Ewing wrote a letter to Simmons in which he requested to know the criteria used for refer- rals by the Respondent to permanent jobs in the beer in- dustry. Simmons replied by letter on December 4, 1975, and attached copies of the new section 30 in the beer and wine agreement and a section from the ice cream agree- ment which was the source of the new section 30. Thereaf- ter, correspondence continued to be exchanged between them over the next 3 months, at least through February 26, 1976. The correspondence reflects the different positions and viewpoints of the persons involved and is in evidence, but need not be recited here. 17 E. Analysis and Conclusion After observing that there is no express ban on hiring halls in any provision of the Act, the Supreme Court in Local 357, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America [Los Angeles- Seattle Motor Express] v. N.L.R.B., 365 U.S. 667, 675 (1961), stated: It may be that the very existence of the hiring hall encourages union membership. We may assume that it does. The very existence of the union has the same influence. When a union engages in collective bargain- ing and obtains increased wages and improved work- ing conditions, its prestige doubtless rises and, one may assume, more workers are drawn. to it. When a union negotiates collective bargaining agreements that include arbitration clauses and supervises the func- 17 The findings of fact in the foregoing section have been based on the testimony given by Bennett, Ewing, King, William Simmons, John Sim- mons, and Ted Akers and also on documentary evidence. Where there are significant variances in the accounts, I have previously indicated the credit- ed testimony. tioning of those provisions so as to get equitable ad- justments of grievances, union membership may also be encouraged. The truth is that the union is a service agency that probably encourages membership when- ever it does its job well. But, as we said in Radio Offi- cers v. Labor Board [347, U.S. 17], the only encour- agement _ or discouragement of- union membership banned by the Act is that which is "accomplished by discrimination." Consistent with the holding of the Supreme Court, the Board has recently reiterated that a labor organization vio- lates both Section 8(b)(1)(A) and (2) of the Act where it refuses to refer a person to work under an exclusive referral system for discriminatory reasons. _Local_Union 675, Inter- national Brotherhood of Electrical Workers, AFL-CIO (S & M Electric Co.); 223 NLRB 1499. (1976). In that case, the Board stated "The Board has consistently found a viola- tion of Section 8(b)(1)(A) and (2) of the Act where a union has discriminatorily refused to refer an employee for em- ployment pursuant to the terms of an exclusive referral system in effect -between the union and an employer. Such union conduct, by its very nature, indirectly induces the employer to refuse employment to that employee -in viola- tion of Section 8(a)(3)." In that case as in the present .pro- ceeding, the employer, involved-was, not charged with an unfair labor practice . See also Plumbers Local Union No. 17 of the United Association of Journeymen, Plumbers and Pipe- Jitters of the United States and Canada.-,, AFL-CIO (FSM Mechanical Contractor, Inc.),-224, NLRB 1262 (1976), where the Board said, "it is well established that where there is an exclusive hiring arrangement and the union re- fuses to refer or clear an individual for discriminatory rea- sons the union violates Section 8(b)(2)." Further see Local Union No. 12'1, United Association of Journeymen and Ap- prentices of the Plumbing and Ripefitting Industry (M. J. Doyle, Inc.), :223 NLRB 1250, 1254 (1976), wherein the Board adopted the Administrative Law Judge's findings and conclusions that: "It is settledlaw that a union violates Section 8(b)(2) and 8(b)(1)(A), of the Act where, -,having undertaken to operate a hiring hall pursuant to contract or other arrangement with employers as the, exclusive source of recruitment of employees, it refuses to refer or otherwise discriminates against an employee because he has ,engaged in activities protected by the Act',' After examining. the terms of the new section 30 in the beer and wine agreement and after considering the sur- rounding circumstances, I conclude that an exclusive hir- ing hall system continued to exist between the Respondent and Totem on and after October 28, 1975, when the new section 30 was agreed to by 'those parties.' The system which had existed prior to that time, under the provisions of the old section 30 was concededly an exclusive hiring hall system. Totem and other employers did not like the old system where the Union had referred persons in the se- quence of their registering at the,union hall. Both Bennett for Totem and King for Allied Employers made it clear that it was the employers, rather than the Union, who were dissatisfied with the former practice. Simmons, in effect, was attempting to accommodate the employers in propos- ing a change'in section 30. Having, listened to their comp- laints about the old system Simmons borrowed language LOCAL UNION NO. 174, TEAMSTERS 699 from another agreement to form the basis for a new section 30 in the beer and wine agreement. Although the impetus for the change clearly came from the employers, rather than the Union, the Union still had the responsibility to operate its exclusive referral system in a nondiscriminatory manner. In other words, the Union's conduct could not be excused or justified in these circumstances simply because the employers were the ones who wanted a change from -the old system. The terms of the new section 30 itself reveal that an exclusive hiring system or arrangement was intended by the parties and in fact existed. For example, in section 30.01 the word "must" is_ used in requiring that the em- ployer give the Union 3 working days' notice when addi- tional employees are needed. The word "must" clearly means that there is no choice or discretion on the part of the employer; it is a requirement imposed on the employer. The section also provides that "the Union shall have the right" to nominate -applicants for employment during the 3-day period. Use of the term "right" in this context creates a legal entitlement to the Union to make some nomina- tions. In these circumstances, I find that the use of the word "nominate" instead of "refer" does not make any significant difference in determining whether an exclusive hiring hall system existed. Next, section 30.01 provides that the employer "shall" receive such applications and "shall" give fair consideration to the union nominees and "shall" not discriminate for the stated reasons. Here again, the use of the word "shall" indicates a requirement to which the employer is obligated. It is not discretionary with the em- ployer. Then section 30.02 of the new provisions establishes a grievance procedure for determining disputes as to whether the employer has failed to give the Union notice "as herein required or discrimination or the fairness of the, consider- -ation given nominees." Thus, the obligations imposed by section 30.01 are subjected-to a specific procedure for de- termining whether the employer has lived up to the com- mitments made by the employer in the hiring process un- der section 30. Finally, section 30.03 establishes an employment gnev- ance committee and provides for its composition of two representatives of the employer and two of the Union. If they cannot agree and settle the grievance by majority vote within 5 working days, then "either party may, within ten (10) days thereafter and without liability therefor, imple- ment any economic persuasion deemed expedient and such shall not be deemed a violation of this Agreement." Im- plicit in section'30.03 is the right to use "economic persua- sion" which would include, among other things, a strike. Thus, examination of the literal language of the new sec- tion 30 indicates that the parties intended and did infact continue the, exclusive referral system', which had heretofore existed. In addition to the terms of the new section 30 is the practice of the parties operating under it. For example, all of the "nominees" whose names have been nominated by Simmons to the various employers since the new section 30 went into effect have, in fact, been hired by those em- ployers. Bennett also expressed his belief that he had no alternative but to accept the permanent referrals from the Union. His expression,of having no alternative to Simmons was not alleviated when Simmons replied that all he had to do was give the two permanent referrals-John Simmons and Mack Harada-fair consideration. As Bennett ex- plained to Ewing, he had previously been confronted with a strike over a grievance, and he did not choose to fight that battle again. Thus, the actions of the parties in giving notice to the Union-the Union in making the "nomi- nees," and the employers in accepting them-indicate an exclusive referral arrangement. The practice of the parties is a relevant consideration here in determining how the parties operated under the new section 30. Chicago Local No. 245, Lithographers and Photoengravers International Union (Alden Press, Inc.), 196 NLRB 720 (1972). See also Local Union 213, Laborers' International Union of North America, AFL-CIO (Batteast Construction Co., Inc.), 223 NLRB 561 (1976), regarding "an oral arrangement or un- derstanding for an exclusive referral or hiring system of prospective local employees." I conclude in these circumstances that Totem regarded the Respondent as the exclusive source of employees for referral for permanent employment at Totem, and during the 3-day period after notice was given by Totem the Re- spondent "possessed control over the Employer's hirings within said periods of time." Local Union 136, Muskingum Valley District Council of the United Brotherhood of Carpen- ters and Joiners of America, AFL-CIO (Muskingum Valley Building Trades Employers Association), 165 NLRB 1040 (1967). Since the Respondent and Totem "were parties to an exclusive referral arrangement or practice, it is clear that Respondents had a statutory duty to maintain and give effect to that system without discrimination." Local Union 136, ibid. After considering the evidence with regard to the hiring hall and referral system which existed on and after October 28, 1975, between the Respondent and Totem, I conclude that the system was operated without any objective criteria or standards and in a discriminatory manner. Simmons' testimony in this regard is the most significant because Simmons was the sole person with complete authority over who would be referred. Simmons testified, "If you're ask- ing whether or not I have written standards or any other kind of standards, no, most of them are in my head." Simmons was candid and truthful, in my view, in stating that there were no written standards "or any -other kind of standards" and I conclude that the recrod supports his statement. In his brief, the Respondent's attorney urges that "the record amply demonstrates that objective criteria were employed by Mr. Simmons in the selection of these two men-John Simmons, because he spearheaded an un- successful organizational drive at another concern and Mack Harada, because he was a member of a minority race." It seems to me that these two examples reveal that subjective criteria, rather than: objective criteria, were used. The referral of John Simmons appears to have been moti- vated because of his prounion activities in trying to orga- nize employees of Texaco at the Seattle facility. When the Respondent lost the election among the Texaco employees, William Simmons then referred John Simmons for perma- nent employment at Totem. Thus, the basis for the referral was John Simmons' union activities. Such a basis would inherently encourage union activities and union member- 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ship among employees and discriminates against those per- sons seeking referral who have not "spearheaded" union organizational drives or engaged in other union activities. As to Harada, his selection for referral appears to have been an' arbitrary selection not based on any established standard. Harada had not previously worked for Totem and was working in a warehouseman's job. Totem sought a permanent route driver-not a warehouseman-and To- tem thus ended up placing Harada in" Totem's warehouse and transferring another employee from the warehouse to the route driver's position . Totem had not requested a nu- nority employee, and there is no evidence that the Union has any standard for referral of minority employees, such as on a percentage basis or an upward mobility program. Significantly, Simmons did not tell Bennett that Harada was being referred because he was a minority person. In any event, I find Simmons' testimony regarding this point to be the most convincing and, that is, that he did not have any written standards or any other kind of standards'for referral. Accordingly, I find that the Respondent since on or about October 28, 1975, has operated its hiring hall and referral system for referral of permanent employees to To- tem without any objective criteria or standards 'for the re- ferral of unit employees and in a discriminatory manner in violation of Section 8(b)(1)(A) and (2) of the Act. Futher- more, I find that one of the reasons for the failure and refusal of the Respondent to refer Ewing and Leighton to work as permanent employees of Totem on or about No- vember 1 and 3, 1975, was the operation by the Respon- dent of a discriminatory referral system for referral of per- manent employees to Totem, and, therefore, Respondent also violated Section 8(b)(1)(A) and (2) of the Act by its failure and refusal to refer Ewing and Leighton for perma- nent work at Totem on or about November 1 and 3, 1975. Turning now to another aspect of the case, the question is presented as to whether the Respondent also failed and refused to refer Ewing and Leighton for permanent em- ployment with Totem for arbitrary or invidious reasons. After considering the evidence , I conclude that the Re- spondent did so as' to Ewing, but not as to Leighton. The arbitrary and invidious reasons for additionally finding a violation of Section 8(b)(1)(A) and (2) in Respondent's fail- ure and refusal to refer Ewing to permanent employment with Totem on November 1 and 3, 1975, is based on Re- spondent's hostility to the past activities of Ewing. In par- ticular, Ewing had filed' charges with the Board and with EEOC against the Respondent; had filed a lawsuit against the Respondent in a U.S. district court; had picketed the offices of the Respondent; and had run for office against an incumbent union official. While it is true that Ewing's unfair labor practice charge filed with the Board against the Respondent was dismissed, that fact does not diminish the principle that Ewing had the right of access to the Board. As the Supreme Court stated in N.L.R.B. v. Industrial Union of Marine & Ship- building Workers of America [United States Lines Co.], 391 U.S. 418, 424 (1968), "Any coercion used to discourage, retard, or defeat that access is beyond the legitimate inter- ests of a labor organization." To deny referral to Ewing because of his having filed an unfair labor practice charge violates Section 8(b)(1)(A) and (2) of the Act. Local #624, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (Power Piping Company), 211 NLRB 942 (1974). Furthermore, the Board has held that opposition to the election of an incumbent union official is a protected activ- ity under the Act. In Chauffeur's Union Local 923, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Yellow Cab Company), 172 NLRB 2137, 2138 (1968), the Board stated: It is well established that opposition to the reelection of an incumbent union official is protected activity within the meaning of Section 7 of the Act. * * * By these actions, Respondent clearly demonstrated to employees in the unit that their job opportunities would be curtailed if they refused to support incum- bent union officials. We do not believe that a union with representative status is free to discriminate against certain employees in the unit because they did or did not support a particular candidate in a union election. Such a holding would amount to a serious infringement on the statutorily protected right of an employee to support and vote for the candidate of his own choosing. See also Hoisting and Portable Engineers, Local No. 4 and its Branches of the International Union of Operating Engi- neers (The Carlson Corporation), 189 NLRB 366 (1971), and Local 294, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America (Rubber City Express), 204 NLRB 700 (1973). Counsel for the General Counsel in his brief states: "No doubt one might have difficulty understanding how a rea- sonable man might harbor longstanding enmity for some- thing which occurred in 1971 ." He then urges that it must be remembered that the confrontation between Ewing and Respondent's hierarchy began in 1971, but has continued thereafter as evidenced by Simmons' article on August 15, 1975, in Respondent's newspaper. I find the General Counsel's argument persuasive that the article by Simmons does reveal a continuing enmity towards Ewing. This was not some stale, long-forgotten matter. I conclude that an additional reason for Respondent's failure and refusal to refer Ewing on November 1 and 3, 1975, was Ewing's past activities against the Union's hierarchy and an additional basis for finding a violation of Section 8(b)(1)(A) and (2) of the Act in Respondent's refusal to refer him for permanent employment with Totem. Although Charging Party Leighton did not appear at the hearing or testify as a witness in this proceeding-appar- ently ignoring the subpena from the General Counsel-his failure to do so would not preclude a finding of discrimina- tion against Leighton or disqualify Leighton from the remedial provisions of an order where other evidence has established such discrimination. In Riley Stoker Corpora- tion, 223 NLRB 1146 (1976), the Board said: "The Board has held that if, as in this case, the record sustains the allegations of unlawful discrimination against discharged LOCAL UNION NO. 174, TEAMSTERS employees, their testimony is not a sine qua non for relief under the Act." In the instant case, I conclude that suffi- cient evidence exists on the record-notwithstanding the absence of testimony by Leighton-to support a, finding that the Respondent discriminated against Leighton in vio- lation of Section 8(b)(I)(A) and (2) pursuant to the opera- tion of a discriminatory referral system with Totem. Bech- tel Power Corporation, 223 NLRB 925 (1976). Unlike Ewing, however, Leighton had not engaged in such past activities as filing charges against the Respon- dent with the-Board and with EEOC, a lawsuit in a U.S. district court, picketing the offices of the Respondent, and running for union office in opposition to an incumbent union officer. Therefore, as to Leighton, there is not a basis for finding that the Respondent also discriminated against him because of his past activities, and thus the finding as to Leighton is predicated on Respondent's operation of a dis- criminatory referral system with Totem on and after Octo- ber 28, 1975, the permanent employees, and Respondent's failure to refer him for permanent employment to Totem on and after November 1, 1975. In contrast to the referral of permanent employees which is under the absolute control of Simmons, the referral of temporary employees is done by dispatch at the Airport Way South office on a "last in-last out" basis unless an employee is requested by name. The only significant change there with regard to temporary employees after the new section 30 became effective appears to be the duration of the dispatch. The time period has been shortened from 5 weeks under the old system to 5 days. However, the refer- ral in sequence is an objective standard, and I do not find that the referral of temporary employees has been done on a discriminatory basis. However, I find that the wording on the sign posted at the hiring hall did violate Section 8(b)(1)(A). The sign informed persons who came to the hall to register for dispatch that the only ones eligible to register and be dispatched from the hiring hall, with the exception of the heavy construction industry, had to be members of the Respondent Union. This wording, which was posted at all times material to the proceeding until the first day of the hearing in this case on April 6, 1976, would restrain and coerce employees entering the hall in the exercise of their Section 7 rights since they were told that they would have to be members of the Respondent in order to register and be dispatched-to jobs other than those in the heavy construction industry. I find that the Respondent violated Section 8(b)(1)(A) of the Act by maintaining that sign in its hiring hall during the 10(b) period. Although the initial unfair labor practice charge was filed on November 12, 1975, it was not served by Region 19 until the next day, November 13, 1975. Thus, I find that the 10(b) date is May 13, 1975, and find that the Respondent violated Section 8(b)(1)(A) of the Act from May 13, 1975, through April 6, 1976, by maintaining the sign at the hiring hall. I do not, however, find that the wording on the sign violated ''Section 8(b)(2) of the Act. The testimony is that employees were permitted to register without regard as to whether they were members of the Respondent. Thus, contrary to the wording of the sign, the practice was to permit persons to register even though they were not members of the, Union. Considering that fact and the fact that the' evidence does 701 not show that employees were denied referral as temporary employees because of their lack of union membership, I shall dismiss that portion of the complaint which alleges a violation of Section 8(b)(2) with regard to the referral sys- tem for temporary employees. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations de- scribed in section I, above, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce. Upon the basis of the foregoing findings of fact and upon the entire record, I make the following: CONCLUSIONS OF LAw 1. Local Union No. 174, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, is a labor organization within the meaning of Section 2(5) of the Act. 2. Totem Beverages, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3_ The Respondent and Totem have been parties at all times material herein to a collective-bargaining -agreement which designated the Respondent as the sole and exclusive collective-bargaining representative of a unit of employees described in that agreement as "All employees of the Em- ployer whose job classification is set forth in this Agree- ment." The job classifications set forth in the collective- bargaining agreement include, inter alia, drivers, helpers, loaders, warehousemen, and bull-lift drivers. 4. Since on or about October 28, 1975, the Respondent and Totem have been parties to an exclusive hiring hall and referral system for referral of employees by the Re- spondent to work at Totem in the unit set forth in the collective-bargaining agreement described above. 5. By operating since on or about October 18, 1975, an exclusive hiring hall and referral system for referral of per- manent employees to Totem without any objective criteria or standards and in a discriminatory manner, the Respon- dent has engaged in unfair labor practices within the mean- ing of Section 8(b)(1)(A) and (2) of the Act. 6. By failing and refusing to refer, Michael Gary Ewing and Stephen T. Leighton to work as permanent employees of Totem since on or about November 1 and 3, 1975, pur- suant to the operation of an exclusive hiring hall and refer- ral system for referral of permanent employees to Totem without any objective criteria'or standards and in a dis- criminatory manner, the Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act. 7. By failing and refusing to refer Michael Gary Ewing to work as a permanent employee of Totem since on or about November 1 and 3, 1975, for arbitrary and invidious reasons based on Ewing's past protected activities in oppo- 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sition to Respondent's officials and their actions, the Re- spondent has also engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act. 8. By maintaining since on or about May 13, 1975, through April 6, 1976, a sign at its Airport Way South hiring hall in Seattle, Washington, which advised persons seeking to register for referral that the only persons eligible to register and to be dispatched from the hiring hall had to be members of the Respondent, with the exception of dis- patch to work in the heavy construction industry, the Re- spondent has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 9. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(b)(1)(A) and (2) of the Act, I shall recommend that it be ordered to cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act. Having found that the Respondent unlawfully caused Michael Gary Ewing and Stephen T. Leighton to be denied referral to work as permanent employees of Totem Bever- ages, Inc., on or about November 1 and 3, 1975, I shall recommend that the Respondent make them whole for any loss of earnings suffered as a result of the discrimination against them by payment to them of sums of money equal to that which they normally would have earned as wages from the date of the discrimination against them until such time as the Respondent properly refers them to permanent employment with Totem, less net earnings during such pe- riod. Backpay is to be computed on a quarterly basis in the manner prescribed by the Board in F. W. Woolworth Com- pany, 90 NLRB 289 (1950), and with interest thereon as prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). In view of the nature of Respondent's unfair labor prac- tices found herein , I shall recommend that the Respondent cease and desist from infringing in any other manner on the rights of employees or applicants for employment guar- anteed by Section 7 of the Act. As the Board held in Local No. 78, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Murray Walter, Inc.), 223 NLRB 733 (1976), "A `broad' order is appropriate in situations such as this where Respondent's unfair labor practice is serious in nature and strikes at the very heart of the rights intended to be protected by the Act. N.L.KB. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941)." See also Local Union No. 77 of International Brotherhood of Painters and Allied Trades, AFL-CIO (Colorite, Inc.), 222 NLRB 607 (1976). Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in this proceeding, and pursuant to the provisions of Section 10(c)' of the, Act, I hereby issue the following recommended: ORDER 18 The Respondent, Local Union No. 174, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, Seattle, Washing- ton, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Operating an exclusive hiring hall and referral sys- tem for referral of permanent employees to Totem Bever- ages, Inc., without any objective criteria or standards and, in a discriminatory manner. " - (b) Failing and refusing to refer Michael Gary Ewing and Stephen T. Leighton to work as permanent employees of Totem pursuant to the operation of an exclusive hiring hall and referral system for referral of permanent employ- ees to Totem without any objective criteria or standards and in a discriminatory manner, thereby causing or at- tempting to cause Totem to_ deny Ewing or Leighton per- manent employment. (c) Failing and refusing to refer Michael Gary Ewing to work as a permanent employee' of Totem for arbitrary and invidious reasons based on Ewing's past protected activi- ties in opposition to Respondent's officials and their ac- tions, thereby causing or attempting to cause Totem to deny Ewing permanent employment. - (d) Advising persons seeking to register for referral at Respondent's hiring hall that the only ;persons eligible to register and to be dispatched from the hiring hall have to be members of the Respondent, with the exception of dis- patch to work in the heavy construction industry. (e) In any other manner restraining or, coercing employ- ees or applicants for employment in the exercise of the rights guaranteed them by Section '7 of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Make whole Michael Gary Ewing and Stephen T. Leighton for any loss of earnings suffered as a result of the discrimination against, them by payment to them of sums of money equal to that which they normally would have earned as wages from the date of the discrimination against them until such time as the Respondent properly refers them to permanent employment with Totem, less net earn- ings during 'such period. Backpay is to be computed on a quarterly basis in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), and with interest thereon as prescribed by the Board in Isis Plumb- ing & Heating Co., 138 NLRB 716 (1962). (b) Refer Ewing and Leighton to work at Totem as per- manent employees pursuant to T`otem's request for their referral on or about November 1, 1975, which the Respon- dent' failed and refused to honor for discriminatory rea- sons. (c) Operate Respondent's exclusive hiring hall and refer- ral system for the referral of permanent employees to To- tem in a nondiscriminatory manner based on objective criteria or standards. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all hiring hall records, dispatch' lists, referral cards, and other docu- 18 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 10148 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes LOCAL UNION NO. 174, TEAMSTERS 703 ments necessary to analyze and compute the amounts of backpay due Ewing and Leighton under the terms of this Order. (e) Post at its main office on Denny Way in Seattle, its hiring hall of Airport Way South in Seattle, and its meeting places for members or applicants for referral copies of the attached notice marked "Appendix." 19 Copies of the no- tice on forms to be provided by the Regional Director for Region 19, after being duly signed by an authorized repre- sentative of the Respondent, shall be posted by the Re- spondent immediately upon receipt thereof, and be main- tained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to members or applicants for referral are customarily posted. Reasonable steps shall' be. taken by the Respondent to en- sure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 19, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 19 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" APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had the opportunity to present evidence, the National Labor Relations Board found that we violated the National Labor Relations Act and has ordered us to post this notice. WE WILL pay to Michael Gary Ewing and Stephen T. Leighton the amount of earnings which they lost because of our failure and refusal to refer them in a nondiscriminatory manner on or about November 1 and 3, 1975, to work as permanent employees of To- tem Beverages, Inc., and we will pay them 6-percent interest on such loss of wages. WE WILL refer Michael Gary Ewing and Stephen T. Leighton to work at Totem as permanent employees pursuant to Totem's request for their referral on or about November 1, 1975, which we failed and refused to honor. WE WILL NOT cause or attempt to cause Totem Bev- erages, Inc., to deny employment to Ewing or Leigh- ton pursuant to the operation of an exclusive hiring hall and referral system for referral of employees to Totem Beverags, Inc., without any objective criteria or standards and in a discriminatory manner, or because Ewing's past protected activities in opposition to our officials and their actions. WE WILL operate our exclusive hiring hall and refer- ral system for the referral of permanent employees to Totem in a nondiscriminatory manner based on objec- tive criteria or standards. WE WILL NOT advise persons seeking to register for referral at our hiring hall that the only persons eligible to register and to be dispatched from the hiring hall have to be members of our union , with the exception of dispatch to work in the heavy construction indus- try. WE WILL NOT In any other manner restrain or coerce employees or applicants for employment in the exer- cise of the rights guaranteed them by Section 7 of the Act. LOCAL UNION No. 174, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA