Metallic Lathers' Union of New York and Vicinity, The, Local 46 of the Wood, Wire and Metal Lathers' International Union (Building Contractors Association, Inc. and The Cement League)

DECISIONS OF NAl IONAL LABOR RELATIONS BOARD The Metallic Lathers' Union of New York and Vi- cinity Local 46 of the Wood, Wire and Metal Lathers' International Union and Mack C. Grif- fin, Pembroke Blyden, Earl Diggs, Linton Brown, Alexander Thompson, and John A. Cleary, and Building Contractors Association, Inc. and The Cement League, Parties to the Contract. Cases 2-CB-6021, 2-CB-6046, 2- CB-6868, 2-CB-6923, 2-CB-6841, 2-CB-6851, 2-CB-6859, and 2-CB-6900 March 4, 1982 DECISION AND ORDER BY CHAIRMAN VAN I):F WATI ER ANI) MEMBERS FANNING AND ZIMMERMAN On July 30, 1981, Administrative Law Judge Mi- chael O. Miller issued the attached Decision in this proceeding. Thereafter, Respondent and the Gener- al Counsel filed exceptions and supporting briefs. Respondent also filed a brief in opposition to the General Counsel's exceptions. 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, find- ings, and conclusions of the Administrative Law Judge as modified herein. The complaint alleges that Respondent violated Section 8(b)(l)(A) and (2) of the Act by discrimi- nating against nonmembers of Local 46 in the oper- ation of its exclusive hiring hall. The Administra- tive Law Judge found that, with the exception of referrals for the position of job steward, Respond- ent did not refer its members to work in preference to nonmember registrants. In finding that Respond- ent unlawfully refused to refer journeymen mem- bers of other locals as stewards, the Administrative Law Judge observed that experienced nonmember journeymen appeared to meet the Union's criteria for steward, and Respondent's total exclusion of these workmen from steward referrals could only be explained by a discriminatory preference for its members. The Administrative Law Judge noted that the steward referrals issue was closely related to the complaint's allegations and was fully litigat- ed. Contrary to the Administrative Law Judge, we find that the General Counsel failed to put the ste- ward referrals question in issue at the hearing and that Respondent was thereby denied the opportuni- ty to litigate the matter fully and to present evi- dence justifying its conduct. Respondent's steward referrals were not specifically mentioned in the 260 NLRB No. 86 complaint nor were they discussed by the General Counsel in his case-in-chief. Respondent did not re- ceive notice of this theory until the General Coun- sel submitted its post-hearing brief. Had Respond- ent been aware that the matter was in issue, it al- leges it would have sought to introduce evidence at the hearing to show that the journeymen mem- bers of other locals were not qualified to perform the work required of a job steward. Since it was not clear that steward referrals were in issue and Respondent did not have the opportunity to pres- ent a defense, we find that the issue was not suffi- ciently litigated. Accordingly, we will not adopt this finding of the Administrative Law Judge and shall dismiss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION SlTAIFMI.NI OF THE CASE MICAixHI O. MII.I RH, Administrative Law Judge: These consolidated cases were heard in New York, New York, on October 31, 1978, September 17, 18, and 22, 1980, December 15-17, 1980, and January 22, 1981, based on unfair labor practice charges filed by various individuals in 1975 and 19771 and on an order consoli- dating cases, consolidated complaint and notice of hear- ing issued by the Regional Director for Region 2 of the National Labor Relations Board, herein called the Board, on January 23, 1978, as thereafter amended. The amend- ed complaint alleges that the Metallic Lathers' Union of New York and Vicinity Local 46 of the Wood, Wire and Metal Lathers' International Union, herein called Local 46, Respondent, or the Union, violated Section 8(b)(l)(A) and (2) of the National Labor Relations Act, as amended, herein called the Act, by unlawfully dis- criminating against those who were not members of Local 46 in referrals to employment from its hiring hall. Respondent's timely filed answer denies the commission of any unfair labor practices. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, and to argue orally. Briefs, which have been carefully considered,2 were filed by the General Counsel and Respondent. I Case Ci3 6021 was filed by Mack C Griffin on September 16, 1975: Cases 2 CBi 1,46 2 CB 6686, and 2 CB-6921 were filed by Pem- broike Blyden on ()cober 20, 1975, August 29. 1977, and October 3, 1977, respcclively: Case 2 CB 6841 was filed by Earl Diggs on August 11, 1977: Case 2 CB1-6851 vwas filed on August 18, 1977, by l.inton Brown. Case 2 CB1 6859 was filed by Alexander Thompson on August 23, 1977; and Case 2 Ci3 69(X) as filed by John A Cleary oin September 16, 1977 Respondent's mtotion to strike portions of Ihe General Counsel's brief, is. except as oltherwise indicated herein, denied That motion was essentially a reply brief for wbhich there is no provision in the Board's Rules and Regulations (see Sec 102 42 Ihereof) 624 THE METALLIC LATHERS' UNION OF NEW YORK Upon the entire record, including my careful observa- tion of the witnesses and their demeanor, I make the fol- lowing: FINI)IN(iS OF FACT I. THE UNION'S l ABOR ORGANIZATION STATUS ANI) JURISI)IC I ION-CONCI USIONS OF LAW The complaint alleges, Respondent's answer admits, and I find and conclude that the Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. At all times material herein, Respondent has been party to a series of collective-bargaining agreements with the Building Contractors Association, Inc., herein called BCA, and The Cement League, herein called The League. Both BCA and The League are associations of employers in the building and construction industry. BCA and The League exist, inter alia, for the purpose of representing their employer-members in collective bar- gaining and administering collective-bargaining agree- ments with various labor organizations, including Re- spondent. Dic Concrete Corporation, a New York corporation, is a concrete subcontractor, involved in constructing residential, commercial, industrial, and office facilities. It maintains its principal office in Hicksville, New York. Annually, Dic derives gross revenue in excess of $500,000 from these operations, and annually purchases goods and supplies, valued in excess of $50,000, directly from points outside of the State of New York, for use in its New York operations. Dic has been a constituent member of The League at all material times. John T. Brady and Co., Inc., herein called Brady, a New York corporation with its principal office in New Rochelle, New York, and places of business elsewhere in the State of New York, is a general contractor in the building and construction industry, constructing industri- al, commercial, and office facilities. At all times material herein, Brady has been a constituent member of BCA. The complaint alleges. the record establishes, the Union has stipulated, and I find and conclude that BCA, The League, Dic, and Brady are now, and have been at all times material herein, employers engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 11. THE ALLtEGED UNFAIR I ABOR PRACTICES A. The Issues and Principal Contentions of the Parties The Union operates a hiring hall for the referral of workmen in the lathing and structural steel reinforcing trades. The General Counsel contends that Respondent has violated Section 8(b)(1)(A) and (2) of the Act by dis- criminatorily giving preference in referrals to employ- ment to its members, referred to generally as journeymen or bookmen, and by denying referrals to nonmembers (including those who are members of other local unions), called permitmen. This discrimination, it was alleged, oc- curred through the Union's failing to accord the non- members the requisite priority for referrals and by its permitting members to circumvent the hiring hall rules by obtaining jobs with contractors without registering at the union hall (direct hires) or by returning to work for a contractor after a layoff in excess of I day (callbacks), all to the detriment of the permitmen. Respondent denies that its referrals were discriminato- ry and contends that the General Counsel both misun- derstood the priority system and failed to appreciate the distinctions in the various kinds of work done by em- ployees referred from the Union's hall. In regard to call- backs and direct hires, Respondent acknowledges that in- dividual employees sometimes secured their own em- ployment and sometimes returned to a jobsite after a hiatus of more than I day. It denies, however, that the Union was in any position to effectively prevent such ac- tions, that such actions necessarily favored members, or that the return of employees to earlier held employment necessarily involved layoffs such as would render their reemployment impermissible under the hiring hall rules. The General Counsel's case rests largely on conclu- sions to be drawn from the computerized record of the activities of the hiring hall from 1975 through 1979, the so-called activity reports. Respondent contends that these activity reports are incomplete and inaccurate. B. Respondent'v Motions To Dismiss Several times during the course of the hearing, and again on brief, Respondent moved for dismissal, contend- ing that the General Counsel's delay in prosecuting this case required that the doctrine of laches be applied.3 My rulings at the various stages of the hearing, denying said motions, are adhered to herein. The unfortunate delay in prosecuting these cases4 is not, as the Supreme Court has held, sufficient reason for depriving employees of their statutory rights. N.L.R.B. v. J. H. Rutter-Rex Manufac- turing Company, Inc., 396 U.S. 258 (1969); Woodlawn Hospital, 233 NLRB 782, 795 (1977). I have, however, 1 Respondent also argued that dismissal was mandated by Sec. 706{1 of the Administrative Procedures Act. 5 U SC 706(I). That section, ap- plicable to resiewing courts, permitting such courts to "compel agency action unlawfully withheld or unreasonably delayed," is not applicable here. 4 The prehearing delay was inordinately long only in regard to the charges filed bh (Griffin and Blyden in September and October 1975 As to these. the General Counsel has asked, on brief, that I take official notice of a December 8. 1975, letter from the Regional Director for Region 2 of the National Labor Relations Board, first brought to my at- tention as an attachment to the General Counsel's brief, purporting to defer consideration of Case 2 CB-6046, Blyden's original charge, pend- ing possible contempt action and/or corrective action hby the administra- tor of the hiring hall Respondent moved to strike all references to this letter The General Counsel did not offer it in evidence or move to reopen the record for its receipt, neither did he explain why this letter, allegedly contained within the Region's case file, could not have been ad- duced during the extended hearing. Respondent, therefore, had no oppor- tunity for voir dire or cross-examination with regard to this letter Re- spondent could iot show. for example, when the alleged period of defer- ral ended or whether the deferral also applied to Griffin's charge. Case 2 CB-6021 Accordingly, I must conclude that official notice of such a document would not be proper See Seafarers International Union of ;Vorth .4roina, Pacific D:strict. 4FL-C10. and itt affihiates (-4meritan Pa- cific Container Lines. Inc. (A.MP.4C)L 252 NLRB 736 (1980). It is notl possible, on this record, to assess responsibility for the unfortu- nate additional delay of nearly 2 years. from the time the hearing opened in September 1978 until it resumed in September 1980, while settlement prioposals were pending before the General Ciounsel in Washington, DC 625 DECISIONS OF NATIONAL LABOR RELATIONS BOARD considered the effect of those delays upon the availabil- ity and reliability of the evidence adduced by all parties. Respondent additionally moved for the dismissal of the complaint, as amended, contending that the General Counsel's misunderstanding of the manner in which the hiring hall rules operated and the lack of specificity in the complaint denied it due process of law. The General Counsel did misapprehend how the referral system oper- ated and that misapprehension caused the General Coun- sel to misplead certain aspects of the alleged discrimina- tion. However, in view of my evaluation of the General Counsel's evidence and my disposition, on the merits, of the issues raised herein, I need not reach the due process question. C. The Union, Its Work, and Geographical Jurisdictions Local 46 represents employees in two distinct crafts, referred to by all parties as inside and outside work. Inside work is the work of lathers and involves the in- stallation of tin, wood lath, plaster partitions, and various kinds of ceilings and the construction of arches. It is a skilled trade, generally requiring the completion of an apprenticeship in order to acquire journeymen status. Outside work is the laying out or preparation of reinforc- ing structural steel preliminary to the pouring of con- crete for slabs, beams, and columns. Within the outside work are various skills, both general and specific. The specific skills, which require training or experience, in- clude welding, tag writing, and machine operating. The Union's geographical jurisdiction includes the five boroughs of New York, Nassau and Suffolk Counties (Long Island), Westchester County, and portions of Rockland County. In certain directions, the Union's ju- risdiction extends considerably more than 100 miles from its Manhattan office and hiring hall. Notwithstanding the Union's extensive work and geo- graphical jurisdiction, technological changes, a long re- cession in the construction industry, and the assumption of jurisdiction by other trades had steadily reduced the number of employees seeking work under Local 46 con- tracts. Thus, while there were approximately 3,500 such employees in 1973, this number decreased to about 2,700 in 1974; 1,600 in 1975; 1,000 in 1976; and 800 between 1977 and 1979. During the relevant periods herein, Local 46 has had collective-bargaining agreements with a number of em- ployer associations. Included are BCA, The Building Trades Employers of New York, The League, The Gen- eral Contractors Association of New York, The Nassau- Suffolk Contractors Association, The Concrete Contrac- tors Association of Nassau and Suffolk, The Building Trades Employers of Westchester and Putnam Counties, and The Lathing and Furring Contractors Association. The General Contractors Association of New York con- sists of heavy contractors, those building bridges, tun- nels, and heavy foundations. The League members are contractors engaged in the concrete and steel work in- volved in highrise construction. The Union provides out- side workers to these employers. The employers who are members of the Metal Furring and Lathing Association perform inside work. Within each of the associations there are contractors who may employ from I to more than 100 workers from Local 46 at a time. The Union also has contracts with several hundred independent con- tractors who are not members of any of the associations. D. The Hiring Hall Rules 1. Origin In May 1968 the United States Government com- menced an action against the Union and others under Title VII of the Civil Rights Act of 1964, 42 U.S.C.2000e, charging that the defendants had denied minorities equal opportunities with respect to apprentice- ships and employment. In February 1970, a consent decree was entered into and approved by United States District Judge Marvin E. Frankel, which included an agreement to establish rules and procedures for the oper- ation of the Union's hiring hall. The agreement recog- nized the Union's bifurcated work and extensive geo- graphical jurisdiction and provided for equal employ- ment opportunities for all who registered "on the open employment list." In doing so, it stated: All workmen shall be treated on a nondiscrimina- tory basis and without any preference on account of union membership or on account of time worked under a collective bargaining agreement, except that experience in the trade may be used as basis for prefer- ence if it relates to the ability of the workmen to per- form the work required. [Emphasis supplied.] The agreement defined "work permit" as the registration card for outside work. The agreement provided for an administrator to over- see and review the functioning of the hiring hall. In July 1971, Judge Frankel signed a memorandum confirming the hiring hall rules and procedures as prepared by the administrator, George Moskowitz, following consulta- tions and hearings with the parties. Those rules became effective on August 17, 1971. 2. Provisions To the extent relevant here, the hiring hall rules and procedures require the following: the establishment of a master eligibility list containing the name, social security number, and status (journeyman of Local 46, journeyman of another local, permitman, or apprentice) together with an indication of the outside work experience claimed by any workman seeking specific experience referrals; the maintenance of a daily register of workmen seeking re- ferral to employment in New York City; and a record, referred to as the contractors' sheets, consecutively num- bered, of employers' requests for the referral of work- men, showing the date and time of the request, each con- tractor's name and location of the jobsite, the number and category (foreman, shop steward, or insider lathers) of workmen requested, whether any specific outside ex- perience was required and its nature, and whether a car was required. The Union was called upon to submit plans or pro- grams to the administrator for training courses for all 626 THE METALLIC LATHERS' UNION OF NEW YORK registrants interested in acquiring training and experience for specific experience outside work. The courses were to be publicized to all journeymen and permitmen and were to be held as frequently as the administrator deemed appropriate. Those completing such training pro- grams were then entitled to have their eligibility for spe- cific experience referrals entered on to the master eligi- bility list. Workmen seeking New York City jobs register at the hall. Workmen seeking referrals to suburban jobsites are permitted to register either at the hall, indicating their availability for such work, or by telephone. The business agents are required to offer jobs in the order in which the requests were received, to announce each job to all registrants, to make referrals to jobsites in New York City to those registrants present in the hall who had ac- quired priority for such referrals (as hereafter defined), and to refer workmen to suburban jobsites first by refer- ence to the priority lists and then, if the requests could not be filled from those with priority, by alternating be- tween those who had registered at the hall for such re- ferrals (i.e., car available) and those who had called in seeking such work. The hiring hall rules preclude the Union from granting an employer's request to refer any specific individual other than as a foreman. The Union is, however, specifi- cally permitted to fill requests for minority group work- men. In regard to transfers and the recall of workmen to a jobsite, the rules provide: VI. TRANSFERS A. Employers are permitted to transfer workmen from jobsite to jobsite without the men registering in the Hiring Hall as long as there is no break in the continuity of the employment of such 25 men. If any workman is laid off by an employer for more than one day, he is required to register for referral at the Union Hiring Hall in order to obtain further employ- ment. [Emphasis supplied.] Priority for job referrals was acquired and recorded as follows: I. The Union . . . shall be required to maintain an accumulative list for the previous two weeks of all workmen who registered at the hiring hall . . . re- cording the dates on which each workmen did not obtain employment. 2. Workmen whose names appear on such list more than 5 times in said (2) week period shall be entitled to priority for referral. The priority sequence shall be established by the number of days when the workmen was not referred for employment . . . The administrator is empowered to require that such records as he may need to review the operations of the hall be maintained and he is responsible for making a computer study of the Union's records on a periodic basis. Based on the administrator's analysis of that study and such other information as he might receive. he has the "power to amend, modify, revise or change these rules of procedures, or any of the forms . . ." subject to review by the U.S. District Court at the request of either party. As discussed, infra, the priority rules were changed in September 1976. The employers with whom Local 46 has collective- bargaining agreements were not parties to the Title VII action, the consent decree and agreement, or the rules and procedures for the operation of the hiring hall. How- ever, the contracts between the Union and both BCA and The League during all relevant times provide, inter alia: (I) The Union shall establish and maintain an open employment list for the employment of competent workmen in accordance with the Rules and Proce- dures For Operation of Hiring Hall dated August 18, 1971 and presently in effect and referrals shall be made pursuant to said Rules and Procedures. (5) The hiring hall shall be the exclusive source of workmen and no hiring shall be done at the jobsite. The record does not establish whether these hiring hall rules and procedures are similarly referred to in Re- spondent's other collective-bargaining agreements. It suggests that the Union has exclusive hiring hall provi- sions in each of its collective-bargaining agreements. 3. Recordkeeping As noted, the administrator is required to make a peri- odic computer study of the activities of the hiring hall. That study, the activity report, is drawn from three doc- uments, the daily sign-in sheets, the contractors' sheets or requests, and the weekly reports from each of the job stewards which purport to identify every individual working on the job during that week, their hours, and their wages. Of these, only the activity reports and con- tractors' sheets were offered and received in evidence. The activity reports purport to show the name, social security number, membership status (journeyman of Local 46, journeyman of another local, permitman, ap- prentice, or trainee), minority status, all of the dates on which the individual registered at the hall for referral, all referrals, whether the referral required specific skills and/or a car, all referrals as steward or foreman, and all employment with and earnings from the contractors who are party to agreements with Local 46. The General Counsel places substantial reliance on the activity reports to establish the violations alleged in the complaint. Respondent objected to their receipt in evi- dence and argues that they are neither the best evidence of the referrals nor sufficiently detailed or accurate to warrant the kind of reliance the General Counsel would have placed on them. These records, I find, were appro- priately received in evidence as compilations of data made at a time proximate to the events described therein, from information properly transmitted by persons with knowledge of those events, which were kept as a regular practice in the course of a regularly conducted business activity. (See Fed. R. Evid. Rule 803(6)). It is a common practice in today's business world for records such as 627 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these to be kept with the aid of a computer. Properly authenticated, and their accuracy (or the limits thereto) established, they have the potential for greatly assisting the factfinder. First, in utilizing a computerized record, however, the computer maxim of "GIGO" must be considered: "Gar- bage in, garbage out." The report which the computer produces is only as reliable as the information which is placed in it. Respondent correctly asserts that these ac- tivity reports do not warrant wholehearted reliance on them for a number of reasons. First, the master eligibility list, which provides the activity reports' information as to the status of each registrant, was prepared in the early 1970's. It has not been updated for some years. There- fore, individuals shown in the report as Local 46 jour- neymen-members may not have been members as of the date of their referral. Or, those shown as permitmen, i.e., nonmembers, may have acquired journeyman status by the time of a reported referral. For example, Linton Brown, one of the Charging Parties (who is incorrectly listed in the activity reports as B. Linton), acquired jour- neyman status in 1979; the 1979 activity report does not reflect that change in status. Ignacia Guerrero similarly became a journeyman in about 1978; his change in status is not reflected in either the 1978 or 1979 activity re- ports. Second, while the computerized record lists all of the days on which each individual registered for referral, it does not indicate the order of signing in. This is signifi- cant inasmuch as the referrals, after September 1, 1976, were made according to the order of daily registration. Third, the computerized record does not indicate the possession of special qualifications, such as specific inside and outside skills or the availability of a car, which the registrants were supposed to record when they regis- tered. Fourth, the activity reports frequently fail to show when a referral was to a suburban jobsite. That fact would normally be established by a check mark on the contractor's sheet under "Car Req'd" and transferred from there to the activity reports. Often, however (and almost universally after mid-1977), the business agents did not check the car required box; the fact that it was a suburban referral can be noted on the request only from the fact that no workman signed out or from the descrip- tion of the location. In such cases, the computerized record does not pick up the suburban nature of the refer- ral. Fifth, business agents sometimes write out the nature of specific outside skills requested but check only the general experience box. When that happens, the referral sometimes appears in the activity report to be one requir- ing only general outside experience. For example, con- tractor's sheet 27013 (November 14, 1975) was checked as requiring only a generally experienced outside worker but the work was described as "machine," a specific ex- perience job. The 1975 activity report, A. Hampton, page 473, does not show this to be a referral requiring specific experience. See also contractor's sheet 27565, August 5, 1976, and the 1976 activity report, pages 136 (O'Neill) and 294 (Dennis). Sixth, the failure of a steward to transmit, or the Union to receive, a steward's report creates a misleading gap in the activity report, making it appear as if an indi- vidual were referred to a job but received no earnings or was laid off by an employer for some period of time and was then called back. Union Business Manager Maher testified that stewards' reports are received from most of the jobsites. Administrator Moskowitz opined that, while there were instances when the reports were not filed or were untimely filed, there has been a legitimate effort made to complete and maintain these records. He point- ed out, however, that the stewards are workmen, not necessarily educated, and their reports are sometimes in- complete or illegible. Moreover, not all of the jobsites employing workmen from Local 46 have a Local 46 job steward. None is assigned on the smaller jobs, generally those involving three or less men. The record does not explain how, if at all, the stewards' reports would be completed, or the information otherwise transmitted, on such jobs. I have concluded that, from an examination of the ac- tivity reports, there have been numerous instances when no steward's report was received. Where, for example, a workman who has consistently registered at the hall while he was unemployed receives a referral and then ceases to register for some days or weeks, the inference is warranted that he secured employment from the refer- ral and actually worked, notwithstanding that the activi- ty report shows no earnings for him during the period of nonregistration. See, for example, the referral of C. Campbell on November 5, 1975 (contractor's sheet 26978, misdated as October 5, 1978, and the 1975 activity report, p. 582); the referral of F. Mennie on November 7, 1975 (contractor's sheet 26992, 1975 activity report, p. 465); the referral E. Donoghue on March 30, 1976 (1976 activity report, p. 89); the referral of L. Capria on March 18, 1977 (1977 activity report, p. 8); and the referral of L. Green on April 21, 1978 (1978 activity report, p. 56). That conclusion is also warranted from the large number of referrals each year for which there were no reported earnings. According to the activity report summaries submitted as argument by the General Counsel, there were no earnings reported for 490 of 923 assignments (i.e., individuals referred) in the last three quarters of 1976. In 1977, there were 663 assignments out of 1,970 for which no earnings were reported. In 1978, no earn- ings were reported for 762 out of 1,969 assignments. And, in 1979, no earnings were reported for 863 of 2,529 assignments. Logic would dictate that the Union would not be making, and the contractors would not be seek- ing, the referral of so many workmen if there were no work. The only viable explanation for this phenomenon is the unavailability of the stewards' reports. Comparison of the contractors' sheets with the activity reports also reflects other errors or omissions in the re- porting of the workmen's activities. The following are il- lustrative and not all-inclusive: D. Lynch, a journeyman, was referred to Civetta and Sons on July 2, 1976, ac- cording to contractor's sheet 27486. The 1976 activity report (p. 98) shows him commencing work for Civetta in the week ending July 13, 1976, but does not reflect 628 THE METALLIC L ATHERS' UNION OF NEW YORK any referral. Similarly, O'Connor, a journeyman, was re- ferred to Bildot Steel Corporation on August 6, 1976 (in- correctly written as 1975 on contractor's sheet 27571). He began working for Bildot in the week ending August 10, 1976, according to the activity report (p. 304), but no referral is shown. In some cases, either the workman's name or social security number is illegibly written on the contractor's sheets, preventing the transfer of informa- tion to the activity reports. See contractors' sheet 29188, a referral of E. DeSouter, which incorrectly reports De- Souter's social security number; as a result, the activity report does not pick up his referral on that date. In other cases, individuals clearly designated on the contractors' sheets by name and social security number are not listed in the activity reports. Examples of this include Munz, social security number 117-19-2884, referred on May 30, 1979, pursuant to contractor's sheet 30150, and B. Ander- son, social security number 089-27-4416, referred on June 28, 1979, pursuant to contractor's sheet 30269. E. Qualifications of the Permitmen As previously noted, the hiring hall rules were estab- lished to provide job opportunities in outside work for individuals who were not members of the Union. In ad- dition, they recognize that certain kinds of outside work require specific experience which the permitmen, gener- ally, do not possess and they provide for the establish- ment of training programs to enable the permitmen to acquire that specific experience. The General Counsel argues that the Union may not rely on the specific experience exception to explain the preponderance of referrals to its journeymen because it had failed in its obligation to provide training. ' The General Counsel further argues that any reliance placed by Respondent on the specific experience requirements is "bogus and not supported by the record. The General Counsel did not contend, in its pleadings, that the Union had breached any duty to provide train- ing to the permitmen; moreover, no support for such a contention can be found in this record. The Union's busi- ness manager, Maher, testified without contradiction that the Union had an apprenticeship program for inside and outside workers until the early 1970's. It resumed that program in July 1980. Since the early 1970's the Union has participated in a training program, run by a board of urban affairs and the "New York Plan," which has trained permitmen for both inside and outside work. The Union's role in that training is minimal, only approving the program. The plan selects the individuals for train- ing, they are trained at the jobsites by journeymen, and they are certified as ready for journeyman status by the plan. The Union does not question the plan's certification of any permitman to be a journeyman. Maher testified that the Union's original obligation had been to train 5 Some of what are referred to herein as permitmen are actually jour- neymen in other locals; presumably, they would not require training for specific experience outside jobs. The General Counsel treats them as per- mitmen in the complaint and brief and alleges that they were discriminat- ed against like the permitmen who were members of no local The Gen- eral Counsel's summaries of the annual activity reports indicates that only about 3 to 10 percent of the registrants were journeymen from other locals The number and percentage of such journeymen seeking work through Local 46's hall declined steadily from 1976 through 1979 about 90 workmen, Between 1975 and 1980, approxi- mately 70 individuals completed the training program;s others dropped out before completion. Additionally, the activity reports identify a number of trainees and appren- tices who were securing work through the Union's refer- ral system. According to the hiring hall rules, individuals claiming specific experience and seeking referral to specific expe- rience jobs were supposed to so indicate on the daily sign-in lists. The few examples of those lists which are in evidence do not establish that permitmen either had or claimed to have the requisite experience. Neither was there any other evidence that any significant number of permitmen had the skills necessary for the specific expe- rience referrals. There was no evidence offered or con- tention made that the business agents falsely designated contractor requests for generally experienced workmen as specific experience requests in order to circumvent the system. Based on the foregoing, I must conclude that the evi- dence does not warrant a finding that the Union utilized the specific experience exceptions to the referral system as a subterfuge for the preference of members over non- members. The Union was obligated to refer workmen with the experience necessary to perform the work; where specific experience was requested they generally referred the member-journeymen. 7 All of the journey- man-members possessed specific experience as a condi- tion of their journeyman status. I cannot find, on the basis of this record, that such referrals were improper. Additionally, the hiring hall rules permit, and the con- tractor's sheets reveal, referrals out of order where a contractor has requested the referral of a minority group workman. There are minorities among the journeymen, the apprentices, and the permitmen. F. Evidence of Disposition To Discriminate The General Counsel introduced the following evi- dence, largely uncontradicted, to establish the Union's disposition to favor its own journeymen over permit- men." Ignacia Guerrero was a permitman from 1970 until 1978. He worked throughout 1975 and until the week ending April 27, 1976, for contractor H19, Horn-Sand- Slattery. When he was laid off around May 1976, Guer- rero complained to Business Agent Eddie O'Conner. Un- satisfied with O'Conner's answer, he decided to wait and make his complaint to the administrator. On May 28, 1976, Guerrero was referred to contractor D13, Dic-Un- derhill, where he worked until sometime in the week ending July 6, 1976. He registered virtually every day thereafter and spoke to Moskowitz, in the hiring hall, during December, with O'Conner present. Guerrero complained that he was laid off to make room for the e For example, I Christopher, I Guerrero, and Linton Brown became journeymen I The actirity reports evidence the occasional referral of a permitman to a job requiring specific experience For example, see the 1977 activity report, p 119 R. St Louis, p 174 J. Elerue, and p 266-C Peguero I None of the rifflowing statements are alleged as independent acts of restraint and coercion in violation of Sec. 8(b)( I A) of the Act 629 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "foreman" and heard O'Conner tell Moskowitz that the employer only wanted machine men on the job. Guer- rero branded this statement a lie, telling Moskowitz that "the machine men had been there for [a] long [time] and they only have one machine there." Moskowitz made a telephone call and promised Guerrero that he would be sent out the following day. He was, to a subway job. The activity report indicates that he worked from the week ending December 21, 1976, through the week ending May 3, 1977, for three contractors, Horn Con- struction Company, Hospital Building and Equipment, and Horn-Sand-Slattery, with only the one referral. Guerrero claimed that, when he was laid off again around May or June 1977, he was sent to a job by Fight- back, the organization which was largely responsible for securing referral rights for minority permitmen. While on this job, he alleges, a bookman questioned his presence and Business Agent Ray Lashette had him terminated. On the Monday following that termination, according to Guerrero, Lashette referred him to Dic-Underhill, for whom he worked for about 6 weeks. The 1977 activity report does not show any employment by Guerrero be- tween his May layoff and the commencement of his em- ployment by Dic-Underhill in the week ending June 21. Earnings are reported for the 7 weeks between June 21 and August 2, 1977, from Dic-Underhill, but there is no evidence of a referral. Linton Brown was a permitman from 1970 until he became a journeyman-member of Local 46 in March 1979. In May or June 1977, after an extended period of unsuccessful registration, Brown complained to Business Agent Eddie O'Conner, stating that he had seen individ- uals secure referrals on their first visit in the hall. O'Con- ner told him that there were "only bookmen going out at the time."9 In May or June 1979, after Brown had become a union member, he allegedly was told by Business Agent Peter McGovern that the Union could get him jobs if he would do the Union a favor and drop the charge which he had pending with the National Labor Relations Board. l o Permitman John Cleary testified that, in late 1977, a lather foreman to whom he was related wanted to hire him for a job where that foreman was working. When Cleary asked Business Agent Lashette whether his refer- ral had been requested, Lashette said that it had not. When he asked Lashette why he had received no refer- rals, Lashette allegedly stated that he (Lashette) had not sent a permitman to a job in a year and that he could not send Cleary "because cardmen are out of work." Cleary received no referrals subsequent to this conversation. He continued to register at the hall on an increasingly irreg- 9 The record reveals that O'Conner's alleged statement swas, at best, an exaggeration. Permitmen were referred to work during 1977, including during May and June See, for example, the employment and referrals of the following permitmen, as indicated in the 1977 activity reports: K. Linton-April (no referral), May, and August (no referral) (p. 126): B. Sowley-June and July (p. 17); T. Thomas-April (p. 21): J. Larrieux- June (p. 33); M. Bowery-July (p. 47); and R. Bedford--April (p 82) '0 This conversation was the subject of a separate unfair labor practice charge which was settled. In agreeing to that settlement, the Union did not admit that it had engaged in the conduct charged. ular basis through the end of 1977. He apparently did not register at all in 1978. Joseph Cambria, a journeyman-member of Local 308 but a permitman within Local 46, testified that sometime between 1978 and 1980 he introduced himself to a union delegate named Maloney and asked why he was not being referred out when others were. Maloney asked whether he was a permitman and stated that union work had not picked up much. When Cambria said that he was a "union man," Maloney allegedly replied, "Well that's different, sit down and we will see what we can do for you." Following this, according to Cambria, he was sent out on a job that lasted a couple of weeks. The activity report for 1978 reflects that Cambria registered on only 6 days (during a 2-week period in November) and received no referrals. During 1979, he registered a total of 20 times during 20 weeks between March and November. He was referred to an inside job (lather) on July 24 .B T Frank Giardana, a journeyman-member of Local 308, has been working out of Local 46 as a permitman for the last 30 years. Giardana testified that he overheard a con- versation between Business Agent Johnny Ryan and a permitman named Steve McFadden in March or April 1977. Ryan had come out of the office and read off a list of about 25 names, to which no one responded. McFad- den then approached Ryan and claimed to be on the pre- ferred' 2 list. Ryan told him, "This is a special preferred list." Additionally, Giardana testified that when he asked Ryan to send him out to St. Louis for work during the spring of 1978, Ryan refused and told him that he would have to be a bookman in Local 46. Ryan allegedly ex- plained that the Union had previously sent others who had then tried to force their way into the Ironworkers Local and, because of that, Local 46 would only send its own members out of town. G. The Union's Referrals Pursuant to the consent decree and the hiring hall rules, those who registered unsuccessfully for referral six or more times within a given 2-week period were to be placed on a priority list from which they were to be re- ferred ahead of all registrants who had not earned such priority. Because of the large number of unreferred regis- trants achieving priority, and the relatively few jobs to which those individuals could be referred, the priority list system bogged down. Thus, in all of 1975 and through September 1976, referrals were still being made from the lists of priorities achieved in December 1974. The Union began complaining to the administrator, as early as 1975, of the backup in the priority list system. According to Maher, this meant that individuals whose names were called were frequently not present in the hall, causing a delay in the referral process as more names were called, and the contractors were complain- ing about the late arrival of referred employees. In August or September 1976, Moskowitz authorized the " Although the activity report does not show him registering again for referral thereafter until mid-September, no earnings are shown result- ing from the July 24 referral 12 As discussed infra, no priority list was being used in 1977 630 THE METALLIC LATHERS' UNION OF NEW YORK Union to cease using the priority lists. He directed them to make their referrals from the daily sign-in registers, basing referrals on the order in which registrants signed in and on their experience and qualifications. This change was announced to the employees in the hall and, subsequent to September 1976, the priority lists were no longer utilized in the referral procedure. The Union has, since that time, used the daily sign-in lists for referral purposes. The priorities which registrants had been achieving week by week after the beginning of January 1975 thus became meaningless. 3 The General Counsel acknowleges that, because of the backlog in the priority lists, the fact that referrals through September 1976 were being made pursuant to lists developed prior to 1975, and the fact that there was no evidence to indicate who had priority on any given day, it could not establish that any particular referral was out of priority. The General Counsel argues, however, that the overwhelming numerical preference for journey- men over permitmen, as reflected by the activity reports, proves discrimination. The activity reports show the following: 4 1. During 1975, 711 permitmen (including journeymen- members from other locals) registered on an average of 38.5 times per man. There were only 380 referrals of per- mitmen, averaging I for every 72.4 registrations. By comparison, journeymen registered only about 8.3 times per man in that year but were referred out once for every 4.5 registrations. 2. In the second quarter of 1976' 5 271 permitmen reg- istered 4,852 times, 17.9 times each. There were but 35 referrals, I for each 138.63 registrations; and 336 jour- neymen registered a total of 1,574 times, 4.68 times each. They were referred 304 times, approximately 1 referral for each 5.3 registrations. However, when referrals for shop stewards (46), lathers (inside work-64), and specif- ic experience (119) are eliminated, it appears that the Local 46 journeymen received only 75 referrals to gener- al experience outside work in that quarter. Additionally, the summary indicates that 96 of the referrals required a car; 93 went to Local 46 journeymen; 2 went to permit- men; and I went to an apprentice. 13 To the extent that the General Counsel's pleadings, and Appendixes A and D of the amended consolidated complaint allege priorities ac- quired on a biweekly basis but not honored in the following weeks, they reflect a misconception of what actually took place in the hiring hall and must be disregarded. 14 The General Counsel drew the 1975 statistics from an affidavit al- legedly filed by a U.S. attorney in January 1979 in support of a motion for civil contempt arising out of a Title 7 action The statistics for 1976 through 1979 were drawn from computer printouts which, allegedly, had been attached to one of the activity reports, not otherwise identified Nei- ther the affidavit nor the computer printout summaries were ever offered in evidence before me. The 1976 through 1979 summaries were, however, appended to the General Counsel's brief. It is, therefore, arguable that these summaries and the statistics drawn from them are not properly before me. However, while Respondent filed a motion to strike a number of matters raised in the General Counsel's bnef, no motion to strike these documents was filed. Accordingly, and having compared the summaries to the activity reports and found them to be essentially accurate, I accept them as part of the General Counsel's argument, but only to the extent that they are based on facts contained within the record. 1' No summary for the first quarter of that year was provided and I have omitted that period from this discussion 3. In the third quarter of 1976, 228 permitmen regis- tered 3,188 times and were referred 37 times, I for every 86.16 registrations; and 332 journeymen registered 1,459 times. The journeymen received 313 referrals, approxi- mately I for each 4.8 registrations. However, eliminating from the referrals all of those contractor requests for shop stewards, lathers, and specifically experienced workmen, there were but 70 referrals of journeymen to general experience jobs. Additionally, the great majority of the requests which required a car were filled by jour- neymen. 4. In the fourth quarter of 1976, 173 permitmen regis- tered a total of 2,262 times. They were referred out only nine times. During that same period, 291 journeymen registered 1,584 times and they were referred out a total of 209 times. However, with the exclusion of the re- quests for inside workers, stewards, and specifically ex- perienced workmen, the journeymen received only 40 re- ferrals to general experience work. 5. In 1977, 603 Local 46 journeymen registered for re- ferral 6,525 times. They were referred out 882 times. Of those, 576 were referrals for foremen positions (11), stew- ards (113), inside lathers (136), or required specific expe- rience (326), leaving only 306 referrals to general experi- ence outside work. Only 225 permitmen sought referral in 1977; however, they registered a total of 8,041 times during that year. The permitmen shared a total of 73 re- ferrals, 12 of which required specific experience. 6. In 1978, 611 journeymen registered for referral 5,686 times and 564 of them shared 1,663 referrals. Of these, 201 called for stewards, 124 for inside lathers, and 600 for specific experience. There were 738 referrals of Local 46 journeymen to jobs requiring only general ex- perience. In the same period of time, only 220 permitmen registered 4,551 times and 111 received shared 265 refer- rals, including 12 to specific experience jobs. 7. In 1979, 605 journeymen registered 5,013 times and 585 journeymen shared 2,111 referrals. Of these, 1,031 required foremen (6), stewards (170), inside lathers (233), or specific experience (612). In the same year, 195 per- mitmen registered 3,691 times and 115 shared 358 refer- rals, including 32 for inside lathing work and 8 requiring specific experience. Local 46 introduced the last three priority lists which were used in the hiring hall prior to the termination of the priority list system about September 1, 1976, the lists for the weeks ending December 2, 9, and 16, 1974. t6 On each list are the names of all registrants who had ac- quired priority in the 2 weeks preceding the date of that list, including both journeymen and permitmen. The lists, however, do not delineate the skill and experience levels iS These it appears were the only priority lists which the Union could find in its records. In view of the delays in the instant litigation, which impaired the Union's ability to retain and produce all necessary records, and the equal availability to all parties of those records which were in the possession of the administrator, no adverse inference is warranted from the Union's failure to come forward with additional examples of the pri- ority lists or other hiring hall records Compare Pipeline Local Union Ao. 38. affiliated with the Laborers' International Union of North America. AFL-CIO (tlancock-Vorthwes. J. V), 247 NLRB 1250 (1980), where the union failed to produce evidence which was in its sole possession. 631 DECISIONS OF NATIONAL I1ABOR RELATIONS BOARD of the registrants inasmuch as few of them had indicated their skills and experience when they had registered. Referrals from the priority lists were only made to outside work, the inside work being excluded from the operation of the rules pursuant to the consent decree. When a contractor's request called for an inside worker or one with specific experience, according to Maher, the business agent would call out the job; if more than one person in the hall was capable of filling that request, re- course was then had to the priority list and/or the daily sign-in sheet to determine who was first in line for that assignment. Examination of the priority lists in conjunction with the contractors' requests and the activity reports illus- trates how the contractors' requests for generally experi- enced outside workers were filled. The Union began to make referrals from the December 2, 1974, priority list on October 21, 1975. On that date, the first contractor's sheet requested two individuals with specific machine ex- perience. The second request called for a shop steward to do inside work. These three individuals were referred from the hall but not off the priority list. The next re- quest was for two individuals of general experience to do outside work. The priority list indicates that five names were called. Three were not present in the hall, as indi- cated by zeros following their names. Two, R. Bauer and G. Martin, both permitmen, were present and were re- ferred. There were no contractors' requests for generally ex- perienced outside men, other than for suburban jobs, be- tween October 21 and 29, 1975. On October 30, 1975, four outside workers, including some minorities, were re- quested (contractor's sheet 26970). Two nonminority workers were sent off of the priority list, J. Dee, a jour- neyman, and C. Cohen, a permitman (member of another local). Two minorities, not on the priority list, were also sent. One was Pembroke Blyden, a permitman and one of the Charging Parties herein; the other's name is illegi- ble. The next five contractors' requests called for either specific experience or inside workers. Contractor's sheet 29976, dated November 4, 1975, sought two outside workers, one with general and one with specific experi- ence. John Clearly, a permitman whose temporary ab- sence from the hall on October 30 had caused him to be passed over on that day, received the referral. Cleary is one of the Charging Parties herein. The next request sought a minority workman with general experience. F. Coleman, who was not on the priority list, was referred. The activity report indicates that Coleman was a permit- man (member of another local) but gives no indication that he belonged to a minority group. The same contrac- tor, Horn Construction, requested two workers on No- vember 5 (contractor's sheet 26978, misdated as October 5, 1975) for a job on Staten Island, New York.17 Two minority group permitmen were sent, one of them from his appropriate place on the priority list. Four additional requests, contractors' sheets 26983 through 26986, re- ceived on November 5, 1975, called for the referral of 17 Staten Island, though within the New York metropolitan area. was considered an undesirable referral because of the difficulty in getting there. It was generally treated as a suburban referral. six generally experienced outside workers. All were filled, in order, from the priority list; at least two of those referred were permitmen. On November 6, according to contractor's sheet 26988, permitman J. Kennedy was referred to a job at Kennedy Airport. On November 7, a request was re- ceived for one specifically experienced and one generally experienced outside worker. The generally experienced worker referred was J. C. Larrieux, a permitman. Next referred was F. Mennie, a permitman on the priority list who had apparently refused a referral on November 5. All of these permitmen were drawn from their appropri- ate places on the priority list. On November 10, 1975, the Union filled a request for three generally experienced outside workers. All were drawn from their appropriate places on the priority list and two were permitmen. A request calling for an expe- rienced outside worker with a car was filled by C. Satter. a permitman who was on the priority list.' 8 The next request for an outside worker was filled by E. Wil- liamson, a permitman who was next on the priority list. Contractor's sheet 26999 is a request for two specifically experienced and one generally experienced outside worker. The generally experienced outside worker re- ferred was permitman John Rademaker, who was next on the priority list. On November 12, 1975, the Union received a request for six outside workers, four with general experience. All four of the latter were appropriately referred from the priority list; three of them were permitmen. On November 14, 1975, four outside workers were re- ferred. All were permitmen and all came off the appro- priate places on the priority list. One was Pembroke Blyden. A call for one generally experienced worker, on November 18, was filled by N. Gordon, a permitman from the priority list. A request for two generally experi- enced workers on November 19 was filled by M. Jarulli and Ivory Vaughn. Both were drawn from their appro- priate places on the priority list. The activity report shows Vaughn to be a journeyman but does not reflect any referral on or about November 19, 1975. There is no reference in the activity report to Jarulli. Local 46's referrals from the list of those who had ac- quired priority as of December 16, 19 7 4,'9 follows a sim- ilar pattern. The Union began calling names from that list on May 20, 1976. The first name was D. Conte. He was referred, but there is not entry in the activity report for him. 'a Both contractor's sheet 29996 and the priority list so indicate. How- ever, the activity report shows neither a referral nor earnings for Satter at this time. " In the interest of achieving some degree of brevity, I have omitted any detailed discussion of the Union's referrals from the December 9, 1974, priority list. That list was in use between November 24, 1975, and May 20, 1976. Comparison of that list with both the contractors' sheets and the activity reports establishes that all requests for nonsuburban gen- eral experienced outside work received in that period were filled, in order, by permitmen (including journeymen from other locals) with pri- ority Additional permitmen were occasionally referred, without refer- ence to the priority list, in response to requests for minority workers and, in one case, to a job ton Staten Island where the request did not specifi- cally seek a minority (C. Campbell, March 24, 1976) 632 THE METALLIC LATHERS' UNION OF NEW YORK On May 24, 1976, Respondent referred two permit- men, R. Sterling and T. Skehill. They had been missed when their names were called off the December 9, 1974, list and there is a notation on the contractor's sheet to that effect. On May 28, 1976, the Union responded to a request for three generally experienced outside workers by refer- ring Guerrero, Cotter, and Dyre, all permitmen. Cotter and Dyre, but not Guerrero, were the next available in- dividuals on the priority list. (See discussion, I1,F, supra.) On June 2, Respondent referred A. Coppola, a permit- man (journeyman in Local 102), who had missed his call from the list on May 20, 1976. The next request for an outside worker was filled by K. Linton on June 4, 1976. Linton's name does not appear on the priority list; he was a minority group permitman. On June 9, 1976, the Union referred F. Graber, a journeyman from Local 244 who was next on the priority list. On the same day it also referred four other generally experienced workers, N. Gordon, D. Grote, J. Ferrick, and S. Guinta, along with three specifically experienced workers. All four of the generally experienced workers were permitmen. On June 10, the Union referred two more generally experi- enced individuals, S. McFadden and J. Mooney; both permitmen. McFadden's referral is established by the contractor's sheet and the activity report; the priority list would appear to indicate that he did not respond to the call of his name. Another permitman, M. Monaghan, ap- pears from the priority list to have been referred on June 10, 1976. Neither the contractors' sheets nor the activity reports show any such referral. On June 14, 1976, according to contractor's sheet 27450, J. Figueroa, a minority group journeyman, was referred to a general experience job. Figueroa's name does not appear on the priority list. On June 15, 1976, the Union filled a request for a generally experienced worker by referring W. Felton. Felton, who was not on the priority list, was a minority group journeyman. No further referrals from the priority list were made until July 13, 1976. However, according to contractor's sheet 27485 and the 1976 activity report (p. 411), the Union apparently referred Walter Lee, a journeyman- member, to a job requiring only general experience on July 7, 1976. Lee's signature on the contractor's sheet would indicate that it was not a telephonic referral. On July 7, according to contractor's sheet 27491, the Union also referred R. Regulus, a permitman (journey- man member of Local 7), to a general experience job. According to the priority list, Regulus had been appro- priately referred on June 18; however, the activity report indicates the possibility that he received no earnings from the June 18 referral. There are no notations on the priority list to explain this second referral. 20 On July 14, 1976, Pembroke Blyden was referred off the priority list. On July 20, A. DiPietto, a permitman (journeyman in another local), next on the priority list to be present in the hall, was referred. Similarly referred in order, on July 22, was R. Sterling and, on July 26, J. McKennan and D. Jessup, all permitmen. 20 The contractor's sheet shows an incorrect social security number for Regulus; it is correctly set forth on the priority list, On July 26, 1976, the Union referred four individuals to W. J. Barney, according to contractor's sheet 27538. J. Irwin, a permitman, was referred from the priority list to a general experience job. Sheehan, a journeyman, was referred for a specific experience position. Two other journeymen, R. Gogatz and W. Heushkel, were, accord- ing to the 1976 activity report (pp. 62 and 86, respective- ly), referred pursuant to that same contractor's request to general experience positions. Gogatz, it appears, had not registered at the hall at all prior to his referral; the activ- ity report indicates that he registered on Friday, July 30, 1976. Similarly, Heushkel had not registered at the hall since April and appears to have registered on Monday, August 2, 1976, notwithstanding that he worked at the Barney jobsite in the week preceding and the week fol- lowing that registration. Heushkel did not sign out on contractor's sheet 27538; his referral may have been tele- phonic. A request for generally experienced outside workers was received on August 4, 1976, and was filled by the next two available registrants on the priority list, both permitmen. On August 11, 1976, according to contractor's sheet 27580, the Union had a request for two minorities. Three individuals were referred, one nonminority permitman from the priority list and a journeyman and a permitman, both minorities, who were not on the priority list. On August 16, 1976, the Union referred four outside workers to Costello Concrete Construction Co. Three, a minority permitman, a nonminority permitman, and J. Tucker, who is not listed in the activity report, were re- ferred from the priority list. A fourth, a minority permit- man, was referred without having been on the priority list. On August 31, 1976, the Union completed the Decem- ber 16, 1976, priority list with the referral of three indi- viduals off that list to general experience jobs. At least two, R. Mohamed and D. Thomas, were permitmen. The third, M. Jarulli, was not listed in any of the activity re- ports. After August 31, 1976, referrals were no longer made from the priority lists. The administrator authorized the Union to make its referrals directly from the daily sign-in sheet. The record contains only a few examples of the daily sign-in registers for the period following the dis- continuance of the priority lists, those which the Union was able to locate among its records. 21 They are the lists for July 7 and 14, 1977, February 15, 1978, and April 7, 1978. The Union received four requests for the referral of employees on July 7, 1977, as reflected by contractor's sheets 28638 through 28641. The first request sought six employees, with no indication of specific experience, to work at Kennedy Airport. Six individuals were sent out of the hall. The names of four appear on the July 7, 1977, sign-in list; 22 two, Hoist and Dunlay, do not appear from that list to have signed in. However, while Dunlay's name could not be found on the sign-in list, the activity report, supposedly drawn from that list and from 2I See in Ih, iupra 22 M(iulnrinss, Walker, Fellon, and Hughes 633 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other documents, indicates that he did sign in on that day. All of those referred to the Kennedy Airport jobsite were either journeymen or their status could not be de- termined because their names were missing from the ac- tivity report. The next request, contractor's sheet 28639, sought an inside worker for lath. B. Croake, a journey- man, was referred. His name and social security number do not appear on the July 7, 1977, list. The activity report reflects that he signed on Tuesday and Wednes- day, July 5 and 6, 1977. Contractor's sheet 28640 called for the referral of four individuals, three with general ex- perience and one with specific experience, to a nonsubur- ban job. All four of the referred employees were on the sign-in list and the three who were referred to the gener- al experience positions were all permitmen. 23 The fourth request for that day, contractor's sheet 28641, called for the referral of two individuals for a suburban jobsite, Rockville Center (Nassau County). The two who were referred did not sign out and their names were not on the sign-in sheet. The only one who was identifiable by his social security number, McAleavey, was a journey- man who, according to the 1977 activity report (p. 309), was referred as a lather, a fact not registered on the con- tractor's sheet. The activity report fails to reflect that the referral was suburban. The Union recorded five referral requests on July 14, 1977. The first, contractor's sheet 28649, sought two in- dividuals with no specification as to experience. Referred were John Dorritie, who was the first, and R. Baumann, who was the 14th to have signed in on that day. Both were journeymen. The second request similarly did not specify any particular experience. It was filled by the re- ferral of Harry James, the fourth person to sign in. James was a minority apprentice. The third request called for the referral of four generally experienced outside work- ers. Referred were Larry Capria, Pembroke Blyden, Mack Griffin, and John Hughes. They had signed in second, fifth, sixth, and seventh that morning. Griffin and Blyden are permitmen and both are Charging Parties herein. The fourth referral, contractor request 28652, called for two individuals to work in Long Island City (suburban). Two journeymen, Anderson and Faulkner, who had signed in 9th and 13th, respectively, were re- ferred. Only one individual, Larry McCallum, had regis- tered on July 14, 1977, that he had a car available. There is no explanation of why McCallum, a journeyman, who was third on that day's list, was not referred ahead of either Anderson or Faulkner. The final contractor's re- quest of July 14, number 28653, called for three individ- uals and did not specify particular experience. The three who were referred, Johnson, Rogers, and Shea, all jour- neymen, were numbers 15th, 16th, and 17th on the day's sign-in list. Of 18 individuals who signed in on July 14, 1977, 12 were referred to employment. There is no evi- dence that anyone not on the sign-in list was referred. Of the six who were not referred, three were journeymen, two were permitmen, and the status of one, F. Puine, could not be determined because he was not recorded in the activity report. 23 Wells. Threatt, and Powers. Contractors' sheets 28983 and 28984 reflect the re- quests for the referral of workmen received by the Union on February 15, 1978. Only two workmen were request- ed, one with specific machine experience and the other as a lathing foreman. The two who were sent, both jour- neymen, were the first two signatories on the list for that day. Two contractors' requests were received on April 7, 1978, the date of the last sign-in list in evidence. Con- tractor's request 29097 (missing from the exhibits but re- flected in the activity report) resulted in the referral of E. Zavodsky, a journeyman, to a job requiring specific experience. Zavodsky was the first person to have signed in on April 7 (1978 activity report, p. 163). The second request, number 29098, called for a machine operator on a suburban jobsite. The referral to R. Degnan, a journey- man, was made telephonically. The record does not re- flect why J. Hatcher, or T. F. Helmke, both journeymen, was passed over for the suburban referral notwithstand- ing that they had registered as having cars available. No others who had signed in on that day had so indicated. Comparison of the April 7, 1978, sign-in list with the 1978 activity reports establishes that, other than Za- vodsky, no one was referred from the hiring hall on that day. Of the first 15 to register on that date, all but 4 were journeymen; the 4th registrant was an apprentice (M. Deverelly), and the 7th, 9th, and 13th registrants (Blyden, Moton, and Duggins, respectively) were permit- men. In addition to the statistical arguments, the General Counsel, on brief, points to several specific situations which he contends demonstrate the Union's discrimina- tion against permitmen. The General Counsel cites the "four referrals for journeyman Christopher in 1975 de- spite the infrequent number of times that he signed in that year." The 1975 activity report (p. 225) reflects that after signing in four times in February and again on March 3, 1975, Christopher was referred to a job on that latter date. He worked 11 hours and earned $114.20. He registered four more times during March and twice in April and was referred again. However, according to the activity report, he received no earnings from that second referral. In this, the activity report appears to be accu- rate because he continued to register on the remaining 4 days of the week following his referral. He signed in, without securing any referrals, 15 more times in the re- mainder of April, May, and June. On August 22, after signing in once, he received a referral to the same con- tractor, at a different jobsite, as his last referral. He worked approximately 6 days. He then signed in six times before his next referral on October 2, 1975. The ac- tivity report contains no record of earnings from this re- ferral. According to the activity report, Christopher was a member of a minority group. Additionally, his last two referrals in 1975 were to specific experience jobs. There is no evidence in the record regarding Christopher's standing on the priority lists which were in use at the time of his 1975 referrals. The General Counsel points to the referrals to a Dic Concrete Corporation jobsite (contractor and job number D12038) during the latter part of 1976. Fifteen individ- 634 THE METALLIC LATHERS' UNION OF NEW YORK uals are listed as having been referred to that jobsite; 14 are journeymen. Assuming that the General Counsel's listing includes all of the individuals employed at that jobsite during this period of time (an assumption which may not be warranted from the inaccuracies noted in the activity report and from the difficulty of manually cull- ing all of the referrals to a single jobsite from the 463 closely typed pages of computer printout which com- prise the 1976 activity report), the following may be noted concerning those journeymen: Five (Early, Fitzpa- trick, Brunicarde, York, and McHugh) were not re- ferred. They were transferred there from other Dic job- sites. Three (Kennedy, Rundie, and Trusley) were re- ferred on the basis of specific experience and a fourth (Harrington) was referred as steward. Two (Ryan and Finn) apparently were not referred at all but secured the job on their own. One (Morrissey) was referred after signing at the hall on virtually every day for 5 weeks; and another (Abdullah) was a minority. The General Counsel correctly states that many permitmen had regis- tered in the Union's hall regularly during that period and presumably were available to work on this jobsite. The General Counsel compared the referrals of per- mitman Ernest Moten with those of journeyman Jimmy Hatcher during 1976 and 1977. Both had worked throughout 1976 at a jobsite designated as P48002. The 1976 activity report (p. 439) shows no earnings for Hatcher at that site after the week ending December 7, 1976. Hatcher registered at the hiring hall nearly every day from the beginning of January until the week ending March 4, 1977. Then, according to the 1977 activity report (p. 294), he returned to jobsite P48002. No refer- ral is shown. He worked there until the end of May 1977, registered for referral three times, and was referred to a specific experience job on June 13, 1977. He worked at that job, on and off, until late September 1977. He re- ceived no additional referrals in 1977, notwithstanding his fairly frequent registration. Moten registered at the hiring hall virtually every day in 1977 and received no referrals until mid-August of that year. The General Counsel cites the jobsite to which Moten was referred in August 1977, another Dic job designated as D13160, as evidencing discrimination. According to the General Counsel, there were 36 individuals on this jobsite in July and August 1977, 31 journeymen, 4 per- mitmen, and I trainee. The activity report reflects that 12 of the journeymen (McEnna, Murray, McGinn, Gogatz, Wittech, Dillon, J. Pyne, R. Pyne, Skehill, O'Connor, Anderson, and J. Ryan) were referred on the basis of specific experience. W. Ryan was referred as the steward. Sixteen of the journeymen (Hicks, Baumann, Finn, Dorritie, Horan, King, Coyle, Daly, McGowan, Ward, O'Neill, Scanlon, Maine, Figueroa, Young, and Considine) were not referred at all; rather, they were transferred by Dic from other jobsites, as permitted by the hiring hall rules. Only two of the journeymen, McHare and O'Connell, were referred to the jobsite to occupy general experience jobs. 24 24 The General Counsel also pointed out that two of the permitmen. Moten and Rodriguez, only worked 21 hours al this jobsite following their referral. However, the General Counsel made no contenilon, and there is no evidence, of discriminatory assignment of permitmen to Jobs The General Counsel also relies on a Horn Construc- tion Company jobsite, H06002, which, he contends, was overwhelmingly staffed by journeymen while permitmen lanquished in the hall. The 1979 activity report allegedly (see the earlier expressed caveat) shows that there were 21 workmen on the jobsite, all but 2 of whom were jour- neymen. Seven of these (Brennan, Douglas, Scheld, Montelcove, Shannon, Crowly, and Griffin) were re- ferred on the basis of specific experience. Six or seven others (Murtha, Lamb, Dorritie, Maloney, Hampton, An- derson, and Faulkner) apparently transferred to this site from another Horn site in either 1976 or 197 7.25 Addi- tionally, two of the journeymen (Walker and Frazier) are minority group members. One of the remaining journey- men, Hohs, had unsuccessfully registered nearly every day between the beginning of the year and the start of his employment for Horn in mid-April 1977. He worked on this site for less than 2-1/2 weeks. In like vein, the General Counsel cites the Dic-Under- hill jobsite, D13161, where, according to his analysis the activity report, there were 35 individuals working, 28 journeymen, 6 permitmen, and 1 apprentice; the activity report reveals that 8 of the journeymen (Walsh, Fowler, Harrington, Ryan, McKiernan, Briney, K. Hayden, and O. Hayden) were referred to specific experience jobs. Nine of the journeymen (McKenna, Ness, Harris, King, Hohs, Richardson, Tarvers, Scanlon, and Carhart) were transferred by the employer from other jobsites. The record is unclear, but a 10th, Lancelot, may similarly have been transferred. One journeyman, Lawlor, was re- ferred as the steward. Ten journeymen were referred to general experience jobs, as were four of the permitmen. Two permitmen (Elerue and Peguero) were referred to specific experience jobs. 2fi Finally, in this regard, the General Counsel alludes to a nonsuburban jobsite, M17007, on which, he contends, 17 individuals were employed during August and Sep- tember 1977. Of these 17, 15 were journeymen, I was an apprentice, and only I was a permitman. Examination of the activity reports indicates the following: 8 of the jour- neymen (Duffy, Holland, Morton, Scott, Fitzpatrick, Filen, Devlin, and King) were referred to specific experi- ence positions; one (Tiernan) was referred as the job ste- of short duration I note that journeyman J Pyne, who was referred on the same day as both Moten and Rodriguez, August 17. 1977. similarly worked for only 21 hours "' Faulkner worked for Horn through nearly all of 1976 (1976 activity report, p. 253) The 1977 activity report (p. 177) shows neither registra- tions nor employmenl for him from the beginning of 1977 until the week ending April 5. 1977. when he is shown as working at this same jobsite with no new referral :~ The General Counsel pointed out that, of the six permitmen referred to this job, four worked for less than 2 days and only two worked for more than 2 weeks (assuming the accuracy of the actis ity report) I note. however. that journeymen who were referred for general cAperience jobs or for whom there is no notlation of specific experience in the activit) report, fise (McKenna. Vaughan, Murphy. Stetzer. and McMurray) ap- parently worked only 7 hours each Two other journeymen referred to general experience jobs (Reddy and Morrissey) worked 35 or less hours The two perniimen awho) received more than 2 weeks employment (Elerue and Peguero) were the two referred to specific elperience jobs It appears from this scry narrow sample that individuals referred to spe- cific experience jobs may stand a better chance of securing sustained em- plon! ment 635 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ward; two journeymen (Gallagher and Galvin) were not referred at all-they apparently secured their employ- ment themselves; and one journeyman (Abdullah) was a minority. Two of the journeymen referred to general ex- perience jobs (Ledwith and J. Callagher) had been sign- ing in regularly prior to their referral, but the activity report does not reflect any registrations by journeyman Moore prior to this referral to a general experience posi- tion. Thus, of the five referrals on this site which did not appear to require specific outside experience, one was as- signed to a minority journeyman, three were assigned to other journeymen, at least two of whom had been sign- ing in regularly for some time prior to their referrals, and one was assigned to a permitman. H. Suburban, Steward, and Foreman Refirrals As previously discussed, the hiring hall rules permit suburban referrals, i.e., those to jobsites outside the city of New York, to be made to workmen who telephone in their requests for such assignments as well as to work- men to register in the hall. The General Counsel con- tends that the preponderance of suburban referrals to members establishes discrimination in the referral pro- cess. Similarly, the General Counsel further argues that the foreman and steward categories were used to exclude permitmen from the referral process. A random sampling 2 7 of those contractors' sheets which appear to request suburban referrals (either the car required box was checked or there was no employ- ee's signature) in conjunction with the activity reports (to ascertain the status of the referred workman) sup- ports the General Counsel's contention that most of the suburban referrals were received by members of Local 46. Thus, in a random sample of 50 ostensibly suburban referrals made during 1975, only 14 went to permitmen. However, at least 15 of the remaining 34 were referrals to inside work, required specific experience, or called for the referral of a steward. In 1976, only 2 of the randomly selected 50 referrals were received by permitmen; how- ever, 25 of the referrals were to specific or excepted job categories. In a sampling of 52 1977 referrals, none went to permitmen and only I went to an apprentice. Eight of those referrals were to general experience jobs. Similarly, in the sampling of 53 suburban referrals in 1978, none were made to permitmen and only I was made to an ap- prentice. Thirty-six of those referrals, it would appear, were to general experience jobs. And, the sample of 1979 referrals yields a virtually identical result; of 57 referrals, including 42 for general experience jobs, I went to an apprentice and the remainder were assigned to journey- men. In considering the foregoing statistical analysis, it must be noted that the record is devoid of any evidence that permitmen sought suburban referrals. The activity re- ports do not record whether, in signing in, an individual claimed to have a car available. The few sign-in registers in evidence do not show any permitmen specifically 27 Neither party analyzed the suburban referrals In the absence of such an analysis, a random sample would appear to he the most appropri- ate vehicle to determine how. and to whom, these referrals were being made seeking suburban work. 2s No permitmen testified to having sought such referrals or to having made their availability for such referrals known in the hiring hall. Analysis of the activity reports corroborates the Gen- eral Counsel's assertion that referrals as stewards were received, almost exclusively, by journeymen-members of Local 46. Of approximately 800 such referrals between 1975 and 1979, less than 15 went to either permitmen or apprentices. Maher testified that the stewards were se- lected by the business agent responsible for a given terri- tory, without reference to any priority list, on the basis of qualifications, experience, rapport with people on the job, self-confidence, knowledge of the work, ability to read blueprints, and knowledge of the Union's constitu- tion and the collective-bargaining agreement. Very few foreman referrals are reflected in either the activity reports or the summaries, less than 25 in all for the years in question. All appear to have been journey- men and, with only one or two exceptions, all were members of Local 46. Maher testified, without contradic- tion, that in almost every case the foremen were selected by the contractors, as authorized by the hiring hall rules. The Union rarely had the opportunity to designate a foreman. I. Callbacks and Direct Hires As described above, the hiring hall rules require that all requests for outside workers be filled by union refer- ral and that all workmen "laid off by an employer for more than one day return to the hiring hall and register in order to obtain further employment...." The Gen- eral Counsel contends that the Union discriminated against permitmen by permitting "members, after a layoff in excess of one day, to return to work for the same con- tractor or at the same jobsite." The complaint further al- leges discrimination by permitting "individuals to obtain jobs with contractors at the jobsite without registering at the Union's hall." The Union, by statements of counsel at hearing, in its brief, and in the testimony of James Maher, its business manager, acknowledges that the applicability of these hiring hall rules and admits that the provision precluding callbacks "was really for ten years observed more by its breach than by its observance...." In this regard, the Union pointed out that there was no agreement or under- standing with the contractors as to when a temporary shutdown, for such things as a lack of supplies or ad- verse weather, was a layoff which would come within the terms of this rule. The Union also admits that some workmen secure their jobs directly, without referral. Maher testified that many of the contractors, particularly the smaller ones, seek to retain as steady a work force as possible, notwithstanding temporary interruptions in their employment. Maher was aware that such practices went 2" The activity report summaries appended to the General Counsel's brief purport to state the number of "car available" registrations bh both journeymeil and permitmen Such statistics, howsever, would have to be drawn from the sign-in registers Since those registers are not in evidence and those statistics therefore cannot he reviewed for accuracy and chal- lenged, consideration of those portions of the summaries would be im- proper See S. Freedman Electric, Inc., 256 NLRIB 42 (1981) 636 THE METAI.LIC LATHERS' UNION OF NEW YORK on; he did not believe that he could burden a contractor to start with new employees when other employees who were familiar with the work had been employed by him for substantial periods of time. Maher further testified that the Union had made ef- forts to discourage or prohibit the direct hiring or call- back of employees by talking to the contractors and by holding discussions with and sending letters to its mem- bers. No examples of such letters were offered. Neither was there any testimony from members to corroborate that such discussions had been held. The Union did not utilize its internal procedures to stem the direct hiring or callbacks by either threatening or imposing internal union discipline. Maher also testified that it was difficult for the Union to learn about the callbacks or direct hires at a time or in a manner when effective action could be taken. The steward's reports come into the Union's office in large numbers, frequently after a job has been completed. Moreover, they are not reviewed by the business agents; clerical employees code and forward them to the admin- istrator for entry into the computerized record. The computerized activity reports are received by the Union 6 to 8 weeks after the end of each calendar quarter. They are not so current as to provide the Union with evidence of existing callback and direct hire situations, even if the Union were willing to take more direct action to prohibit such employment. The General Counsel introduced compilations from the computerized record which purport to list all of the nonreferral hirings and callbacks of journeymen from 1975 through 1979. As reflected in those compilations, the activity reports contain many instances of what appear to be the direct hiring of journeymen by the con- tractors. 29 It would serve no useful purpose to reiterate them here. Most, but not all, are what the General Coun- sel represents them to be.30 That journeymen were hired directly is not disputed by the Union. However, examination of the activity re- ports establishes that permitmen also benefited from being hired directly. The following are a few examples of what appear to be direct hires of permitmen: NVame Week Ending Namenc 1976 J. Hyman B. L cahy M. Larkin E Leahy R. Hunter 1977 P. Thomas T. Mullin G. Williamson June 14 K Linton Linton Broswn I Guerrero 1978 S. Wright J. McGee G. Ball R. Perrerira P. Blyden 1979 R. Archer J. Malone R. Fairfax G. Williamson July 3 Linton Brown 1Week Ending .4ctivity Report Page Jan 27 April 27 Feb. 3 April 6 Oct 5 30 60 60 67 123 April 19 May 17 124 Aug 16 Aug. 9 June 21 21 118 126 127 236 Sep. 5 Dec. 5 April 18 June 4 July 7, Nov. 21, and Dec. 5 Oct 2 Jan. 9 Oct 16 139 May 25 and 29 13 29 162 204 207, 208 4 14 20 142, 143 The situation in regard to the callback of workmen is similar. Thus, the General Counsel introduced compila- tions which list, essentially accurately, many instances where it appears from the activity report that a journey- man worked for a particular contractor, was then not employed and subsequently reappeared on that contrac- tor's payroll with no new referral. From these, it would appear (assuming that the steward's reports were fur- nished for all of the jobs in question and further assum- ing no other errors affecting the accuracy and complete- ness of the activity reports) that the individuals involved were "called back" by their employers. The activity re- ports, however, similarly reflect that permitmen were called back. The following are some examples, by no means all inclusive, of such incidents:3 ' ,4ctivity Report Page 1975 R. Bauer R. Keith P. Kendrick T. Archer July 8 Feb. II Sep. 30 May 20 and Sep. 9 14 40 62 171, 172 29 In such cases, the activity report shows the start of employment but lists no number from a contractor's sheet 10 For example, the March 18, 1975, referrals of C Tooley, J. Morris- sey, and T. Maine (1975 activity report, pp 2, 51i and 76, respectively) appear to be callbacks rather than direct hires, the employees having worked for those contractors previously The March I1, 1975, referral of J. Jackson (1975 activity report, p. 615) was to contractor P72, Piazza & Co. However, he worked for contractor P73, Sal Piazza, commencing on that date That would appear to he a legitimate referral, perhaps confused by an error in applying the contractor codes iVame 1975 L. Haley T. Hess T. Kendrick T. Kendrick I. Guerrero Week Ending Activity Report Page Sep. 23-Oct. 7 July I-Aug. 19 Mar. 18-Apr. 15 Oct. 7-21 May 20, Aug. 5, Sept. 2, Oct. 14 and Dec. 13 28 155 61 62 552 552 L1 In some of these cases, the individuals, in consecutive weeks of em- ployment by the same employer, worked on only I or 2 days It would appear from such a pattern that they had been "laid off' for more than I day and, arguably, should have returned to the hiring hall 637 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD A¥amer 1976 C. Barnes S. Shurina T. Warnock T. Evans P. Blyden 1977 R. Duggins S. Gill F. Beran R. Bedford 1978 N. Narine J. Bautista K. Linton W. McGregor 1979 S. Wright T. Evans C. Blake W. Lanham M. Miller Week Ending .Activity R eport Page June 15 22 Feb. 17-June 15 July 20 August 3 Aug. 3-Aug. 24 Aug. 17 Sept. 14 June 14 July 5 Jan. 18-Feb. I Jan. 25 Feb. 8 Sept. 27-Oct 25 Aug. I Sept. 19 June 27-July 11 and Aug. 8 22 Apr. 18-May 9 Nov. 21-Dec. 5 Apr. 24 June 5 March 6-13, and 27 Sept. 11-25 Jan. 9 Feb. 23 Oct. 30-Nov. 13 It would appear from the record that the journeymen benefited more frequently from direct hires and callbacks than did permitmen. However, because the activity re- ports draw their information as to specific experience qualifications from the contractor's requests, which do not exist in cases of direct hires and callbacks, they do not reflect which of the direct hire and callback employ- ment opportunities required specific skills. J. Analysis and Conclusions The case which the General Counsel has presented rests principally on a statistical analysis of 5 years' worth of computer-produced activity reports to establish dis- criminatory preference for the Union's members in the operation of the hiring hall. Examined broadly, compar- ing only the member referrals against those received by nonmembers, the statistics would seem to support the General Counsel's contentions. Clearly, the journeymen- members of Local 46 received the lion's share of the re- ferrals. Such a broad examination, however, is mislead- ing. In Hazelwood School District v. United States, 433 U.S. 299 (1977), a case involving alleged racial discrimination in the hiring of teachers, the Supreme Court stated at 308, fn. 13: When special qualifications are required to fill par- ticular jobs, comparisons to the general population (rather than to the smaller group of individuals who possess the necessary qualifications) may have little probative value. Similarly, Administrative Law Judge Welles, in Inter- national Association of Bridge, Structural and Ornamental Ironworkers, Local 483, AFL-CIO (Building Contractors Assocation of New Jersey), 248 NLRB 21, 28 (1980), stated, "statistics in a vacuum can often mislead." The General Counsel's comparison of member and non- member referrals, without regard to the recognized ex- ceptions to the priority referral system, I find, does in fact lead to fallacious conclusions and is of no probative value in determining whether or not the Union operated its hiring hall in a discriminatory manner. See Interna- tional Association of Bridge, Structural & Ornamental Iron- workers, Local 45 (Building Contractors Association of New Jersey), 235 NLRB 211 (1978). The consent decree, and the hiring hall rules which it approved, specifically ex- cluded inside work (lathing) from the referral system. Additionally, the existence of different skills required for outside work and the fact that not all who sought out- side work through the hall possessed those skills were recognized; the Union was required to participate in training programs so that those without the requisite spe- cific skills could acquire them if they so desired and was permitted to make referrals to outside work according to the skills requested by the contractors and possessed by the workmen. One may not conclude from this record that the Union failed in its obligation to provide training to the nonmembers. Neither may one conclude that the Union's agents falsely labeled contractors' requests as re- quiring more than general experience in order to exclude permitmen from the referrals. When the referrals of journeymen to excepted jobs (and to steward positions, discussed infra) are eliminated from the General Counsel's equations, the numbers cease to compel a finding of discrimination. In the years be- tween 1975 and 1979, from one and one-half to three times as many journeymen-members were registering at the hall as permitmen (although they did not register as often per man). As a group, they received from two to five times as many referrals to general experience jobs as the permitmen. A substantial percentage of those appar- ently general experience referrals were to suburban jobs (discussed infra) and, considering the errors and omis- sions prevalent in the activity reports, some of the re- mainder were quite possibly to specific experience jobs which had been misidentified. These statistics, alone, will not support a finding of unlawful discrimination. Analysis of referrals made from the few priority lists and sign-in registers which were in evidence, in light of the recognized exceptions, essentially contradicts the General Counsel's assertions of discrimination. In most instances, both were properly followed for all general experience nonsuburban jobs. The few exceptions to a strict chronological referral system which appear therein are as readily explainable by mistakes in the record keep- ing as by discrimination. Moreover, some of those appar- ent violations of strict chronological referral adversely impact upon journeymen as well as upon permitmen. The General Counsel's several specific examples of al- leged discrimination which were culled from the volumi- nous record contain little to substantiate the complaint. Thus, journeyman Christopher may have been referred four times during 1975. He was, however, a minority and, as such, referrals to him could be made out of order pursuant to the approved hiring hall rules. Moreover, two of his referrals were to specific experience jobs. The 638 THE METAI.I.IC IATHERS' UNION 01F NEW YORK jobsites to which the General Counsel points as being overwhelmingly staffed by journeymen similarly fail to prove discrimination in the referral process. Most of the journeymen working on those sites were referred to ex- cepted positions or were permissibly transferred by their employers from other jobsites. Others secured their own employment. There was no evidence that the remainder, with few exceptions, did not have priority over permit- men on the sign-in lists. Again, there were not so many exceptions that, considering the errors in the records and the impossibility of the Union explaining away one or two of several thousand referrals years after they were made, a conclusion of discrimination would be warrant- ed. Contributing to the obvious fact that members secured more referrals than did nonmembers were the suburban referrals and the referrals to job steward positions. Most of the former and virtually all of the latter were filled by journeymen-members of Local 46. The General Counsel contends that the Union used these excepted categories to exclude the permitmen from the benefits of the refer- ral system. In regard to the suburban referrals, it must be noted that they, like the New York City referrals, include a substantial percentage (one-third to one-half of all refer- rals) which require skills not possessed or claimed by the permitmen. More significant. however, is the absence of any evidence in this record that would establish that the permitmen sought referrals to the suburban jobs. To con- clude that they did, or that they would have accepted such work if it had been offered to them, requires not an inference based on established fact but either conjecture or reliance on information not properly before the trier of fact. Accordingly, I am compelled to conclude that the exclusion of permitmen from most of the suburban referrals, suspicious as it is, does not support the General Counsel's allegations of discrimination. The Supreme Court and the Board have recognized the "well established tradition that a union is entitled to have its own members as stewards in order to promote 'the effective functioning of collective bargaining."' Aero- nautical Industrial District Lodge 727 v. Campbell, 337 U.S. 521 (1949); International Association of Bridge. Struc- tural & Ornamental Ironworkers, Local 480, AFL-CIO (Building Contractors Association of New Jersey), 235 NLRB 1511, 1512 (1978). This does not mean, however, that any designation of a member as steward is free from inquiry. The key to determining whether the Union has violated the Act by referring only members as stewards is whether its actions are arbitrary, invidious, or irrele- vant to legitimate union interests and thus a mask for dis- criminatory motivation. Ashley. Hickham-Uhr Co., 210 NLRB 32, 33 (1974). In this case, the Union was referring workmen to sev- eral hundred contractors at at least as many jobsites. A steward was normally appointed on each job which had more than about three workers. Therefore, one cannot conclude solely from the fact that the Union was refer- ring as many as 200 stewards a year from its hall that it was falsely designating referrals as requiring a steward in order to circumvent the referral procedures. Respondent described what it required of its stewards, essentially a high level of experience and knowledge of the work, knowledge of the Union's constitution and the collective-bargaining agreement, and the ability to meet and deal with people. There was no evidence that these criteria, which are clearly not arbitrary, invidious, or ir- relevant in and of themselves, were not applied by the Union in selecting its stewards. As the permitmen (other than those who were journeymen from other locals) did not have the knowledge, skill, and experience in all phases of the work which the Union sought in its stew*- ards, I cannot conclude that the refusal to refer any of them as stewards was discriminatory. There remains, however, the refusal of the Union to appoint stewards from among the permitmen who were journeymen in other locals. These individuals accounted for about 10 percent of all those seeking referrals in 1975 and 1976, 5 percent in 1977, and about 3 percent in 1978 and 1979. They were between 4 and 25 percent of all the journeymen who sought referrals in those years. More- over, they registered more often, in terms of their num- bers, than did the journeymen members. They received not a single referral as steward. Yet, at least some of them had been members of sister locals for as long as 30 years (for example, Frank Giardina) and had been work- ing out of Local 46 for nearly as many years. I cannot believe that none of these experienced journeymen met the Union's criteria for stewards. No explanation, save discrimination, exists for their total exclusion. According- ly. I must conclude that by this exclusion, the Union has discriminated against the journeymen-members of other locals, in violation of Section 8(b)(1)(A) and (2) of the Act. Ironworkers Local 480, supra.:32 The General Counsel contends that Respondent has breached the duty of fair representation it owes to all who seek employment through the referral system by failing to enforce the hiring hall rules upon workers who secure employment without union referral and upon con- tractors who call back employees or hire them directly. Assuming, arguendo, the validity of this contention as a legal theory, the facts developed in this record do not, I find, support the allegation. Both members and non- members, including some of the Charging Parties herein, benefited from direct hires and callbacks. There was no evidence that employers were encouraged by the Union to hire members directly or to call them back. The pre- ponderance of callbacks and direct hires of members over nonmembers is as rationally explained on the basis of the members' specific inside and outside work skills and likelihood that they were better known to the em- ployers because of their longer service in the industry as it is by any supposed preference for union members. See Ironworkers Local 483. supra (under sec. E). Moreover, the record is too open to the possibility of error, particu- larly error resulting from missing stewards' reports, to support the General Counsel's allegations. This is espe- :2 This issue was not specifically pleaded in the General Counsel's complaint Hoxwever, the exclusion of permitmen from stewards positions v as closely related to the pleaded issues and was fully litigated Resolu- tion of Ihl% irsue is therefore required MSonrtw Feed Store. 112 NLRB Il36 1955) 639 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cially pertinent to the callback allegations inasmuch as a missing steward's report would make it appear as if all of the employees on the jobsite had benefited from call- backs. Finally, in the absence of some evidence that any of the hundreds of employers who secured employees through the Union's hall, other than those who were members of BCA and The League, were bound to comply with the hiring hall rules, I cannot conclude that the Union could have effectively enforced those rules upon them had it chosen to do so. In analyzing the record and the General Counsel's contentions, I have considered the testimony which was offered to establish the Union's alleged disposition to dis- criminate. Guerrero's testimony establishes only his own belief that he was removed from two jobs to make room for journeymen-members. It does not establish that that was what actually occurred. Further, his testimony re- garding employment pursuant to Fightback's efforts is not corroborated by the activity report. If anything, his testimony lends credence to Respondent's arguments re- garding the inaccuracy of these reports and/or to the conclusion that both journeymen and permitmen secured employment without a referral being issued or recorded. Similarly, Cleary's testimony does not establish that any request for his referral was denied because he was a permitman. There was no evidence that any such request was made and, if one had been made, the Union would have been obligated by the hiring hall rules not to prefer him on the basis of it. Certain statements by the business agents do tend to show some desire on their part to prefer members. Thus, Lashette's statement to Cleary and O'Connor's statement to Brown, to the effect that only bookmen were being referred, would so indicate. However, when considered in light of the record, it is clear that these statements do not accurately reflect what the business agents were ac- tually doing in the hall. McGovern's statement to Brown, offering him referrals in return for dropping the unfair labor practice charge and Maloney's statement to Cambria, when Cambria responded that he was a "union man," to the effect that Maloney would see what he could do for Cambria, also provide some evidence of a willingness to circumvent the referral system when it is to a union member's advantage. 33 However, these "in- tention" statements are not, I find, either sufficiently nu- merous or persuasive, when viewed against 5 years' re- ferral activity, to overcome either the valid explanations for the disparity in referrals between members and non- members or the evidence establishing the unreliability of the activity reports as proof of discrimination. aa Maloney's conversation with Cambria might also be understood in the context of the greater skills possessed by the journeymen I note that Cambria was referred in 1979 as an inside lather The statement that Giardina allegedly overheard, regarding an employee claiming to be on the "preferred list" and being told of the existence of a "special preferred list," is also ambiguous Moreover, it would appear to be improbable that Ryan would have said this inasmuch as there was no priority list in use at that time Similarly, it is difficult to understand Ryan's alleged refusal to send Giardina to work out of State on the basis eof the Union's earlier experiences with individuals who had tried to force their way into the recipient local in order to get a book (i.e, membership) Giardina, in fact, had been a member of Local 308 for many years Accordingly, with the exception of the discrimination against permitmen members of other locals in the referral of stewards, I shall recommend that the complaint, as amended, be dismissed. Tilt RLEME)Y Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the pur- poses of the Act. The complaint alleges generally that Respondent dis- criminated against those applicants for referral who were not its members. It does not identify the alleged discri- minatees. The evidence, I have found, establishes that the Respondent discriminated against journeymen-members of its sister locals in the referral of workmen to job ste- ward positions. It is appropriate that the persons so dis- criminated against be made whole for any loss of earn- ings they may have suffered by reason of this discrimina- tory referral practice. Since neither the identity of those harmed by this discriminatory practice nor the extent of the discrimination against them in terms of lost earnings can readily be determined from the records in evidence in this case, it is appropriate that such determination be left to the compliance stage of this proceeding. See, for example, International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, Local 101 (Stearns-Roger Corporation), 206 NLRB 30 (1973). See also International Association of Bridge, Structural and Or- namental Iron Workers, Local No. 433 (The Associated General Contractors of California, Inc.), 228 NLRB 1420 (1977). Any backpay found to be due pursuant to this Order shall be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).34 Respondent argues that "just as litigation expenses and attorney fees may be assessed against a respondent whose defense is frivolous, so too such fees and expenses should be assessed against the General Counsel when its actions are frivolous." Respondent contends that the General Counsel's delays and his misunderstanding of the applica- tion of the hiring hall rules establish that this litigation was frivolous. While I have recommended the dismissal of substantial portions of the General Counsel's com- plaint, and found that in fact the General Counsel did misapprehend various aspects of the hiring hall oper- ations, I cannot find that its litigation herein was "frivo- lous." Moreover, there presently35 exists no authority for such an award against a governmental agency. Ac- cordingly, I must reject Respondent's request for counsel fees and cost. Upon the basis of the above findings of fact and the entire record in this case, I make the following: :' See, generally, Isis Plumbing d Hearing Co.. 138 NL RB 716 (1962). : But see the Equal Access to Justice Act (Public Law, 96 481), Title 2 of the Small Business Expansion Act of 1980. 94 Stat 2321, effective Octobcr I. 1981 640 THE METALLIC LATHERS' UNION OF NEW YORK CONCIUSIONS OF LAW I. By discriminating in the referral of workmen as job stewards against those applicants for referral who were journeymen-members of locals of the Wood, Wire and Metal Lathers' International Union other than Local 46 because they were not members of Respondent Local, Respondent has caused the employer-members of the Building Contractors Association, Inc., The Cement League, and other employers with whom it maintains ex- clusive referral agreements to discriminate against em- ployees in violation of Section 8(a)(3) of the Act and has thereby engaged in unfair labor practices within the meaning of Section 8(b)(l)(A) and (2) of the Act. 2. Respondent has not violated the Act in any other manner as alleged in the complaint. [Recommended Order omitted from publication.] 641