Ironworkers Local 843 (Norglass)

IRONWORKERS LOCAL 843 (NORGLASS, INC.) 29 Ironworkers Local 843, International Association of Bridge, Structural & Ornamental Ironworkers, AFL–CIO (Norglass, Inc.) and Robert Harold Edge. Case 11–CB–2687 October 30, 1998 DECISION AND ORDER BY MEMBERS FOX, HURTGEN, AND BRAME On August 5, 1998, Administrative Law Judge Law- rence W. Cullen issued the attached decision. The Re- spondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions and to adopt the recommended Order as modified.2 ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, Iron- workers Local 843, International Association of Bridge, Structural & Ornamental Ironworkers, AFL–CIO, Greensboro, North Carolina, its officers, agents, and rep- resentatives, shall take the action set forth in the Order as modified. 1. Insert the following as paragraph 2(b) and reletter the subsequent paragraphs. “(b) Place on the weekly referral list the names of all employees who request such placement.” 2. Substitute the attached notice for that of the admin- istrative law judge. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. 1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge's’ credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 2 We have adopted the judge’s finding that the Respondent violated Sec. 8(b)(1)(A) and (2) by failing to place the Charging Party’s name on the hiring hall weekly referral list for the week of April 1, 1996. We correct the judge’s inadvertent failure to include in the Order an af- firmative remedial provision for this violation, and we attach a revised notice to employees and members. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protection To choose not to engage in any of these protected concerted activities. WE WILL NOT fail and refuse to place on our hiring hall weekly referral list the names of employees who request such placement. WE WILL NOT fail and refuse to refer users of our hiring hall for work in accordance with the order in which they appear on our weekly referral list. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL place Robert Edge’s name on our hiring hall weekly referral list when he requests such placement and WE WILL refer him for work in accordance with the order in which his name appears on the referral list. WE WILL make Robert Edge whole for any loss of earnings and other benefits resulting from our failure and refusal to place his name on our hiring hall weekly refer- ral list and refer him for employment, less any net in- terim earnings, plus interest. Jane North, Esq., for the General Counsel. Paul Supton, Esq., for the Respondent. DECISION STATEMENT OF THE CASE LAWRENCE W. CULLEN, Administrative Law Judge. This case was opened telephonically on November 6, 1997, continued and resumed telephonically on November 12, 1997, continued and resumed and tried on March 12, 1998, in Winston-Salem, North Carolina, pursuant to a complaint as amended at the hearing issued by the Acting Regional Director for Region 11 of the National Labor Relations Board (the Board) on April 10, 1997. The complaint is based on a charge filed by Robert Harold Edge, an Individual, on June 19, 1996.1 The complaint, as amended, alleges that Ironworkers Local 843, International Association of Bridge, Structural and Orna- mental Ironworkers, AFL–CIO (the Respondent or the Union) violated Section 8(b)(1)(A) and (2) of the National Labor Rela- tions Act (the Act) by failing and refusing to refer Edge out for employment with Norglass, Inc. (the Employer) and various other employer signatories with which the Respondent has been party to a collective-bargaining agreement which provides by its terms that the Respondent is the sole and exclusive source of referrals of ironworker applicants for employment and by fail- ing to place Edge on the Respondent’s out-of-work list for 1 week on April 1, 1996. The Respondent filed its answer to the complaint on May 7, 1997, which was later amended at the hearing and which denies the commission of any violations of the Act and asserts certain affirmative defenses thereto. On the entire record in this proceeding, including my obser- vations of the witnesses who testified and after considering the 1 All dates are in 1996 unless otherwise specified. 327 NLRB No. 11 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 30 parties’ positions at the hearing and their briefs, I make the following FINDINGS OF FACT I. JURISDICTION A. The Business of the Employer The complaint alleges, the Respondent admits, and I find that the Employer, Norglass, Inc., is a North Carolina corporation engaged in the construction business at various locations throughout the United States, including at the Libby-Owens Plateglass Plant in Laurenberg, North Carolina, where during the past 12 months, a representative period of all times mate- rial, the Employer, in the course and conduct of its aforesaid construction business, performed services in excess of $50,000 in States other than the State of North Carolina. The complaint further alleges, and I find on the basis of the foregoing allega- tions and admissions that the Employer is now, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. B. The Labor Organization The complaint alleges, the Respondent admits, and I find that at all times material the Union has been a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES Facts In May 1989, local unions from Charlotte and Greensboro, North Carolina, of the International Union merged with Local 843 emerging as the surviving Local and the members of both local unions automatically became members of Local 843. An election of officers of merged Local 843 was held and Charles Koontz was elected business manager. Local 843 was subse- quently placed under the supervision of the International and at the time of the hearing Koontz was serving as “Acting” busi- ness manager. Charging Party Robert Edge testified that he did not oppose the merger but did oppose the candidacy of Koontz as he preferred to have a member of his old local union serve as business manager. The evidence produced at the hearing establishes that the Re- spondent operates an exclusive hiring hall whereby it refers ironworkers to signatory contractors pursuant to a labor agree- ment entered into by the Respondent and the contractors. This was established by the clear language in the labor agreement and the practice of the various parties to the agreement. the Employer, Norglass, Inc., and other employer signatories2 have been parties to a collective bargaining agreement, enti- tled Agreement Between Contractors’ Committee of North Carolina and Iron Workers Local 843 Greensboro, North Carolina. (Complaint, par. 7; answer, par. 7; Tr 199–200) Ar- ticle V of this agreement provides for the referral of iron- workers as follows: In order to maintain an efficient system of production in industry, to provide for an orderly procedure of referral of applicants for employment and to preserve the legitimate interest of employees in their employment, the Employer and Union agree to following plan of referrel [sic] of ap- plicants to employment: A. The Employer shall have the right to employ di- rectly a minimum number of key employees who may consist of a superintendent, general foreman, foreman, and all employees laid off by the Employer in the previous six (6) months. In addition, the Employer shall have the right to request fifty (50) percent of the employees by name and the Union shall provide such employees, if available. If the Union requests it, the Employer will write a letter to the Union within five (5) days of the request, stating all names of the Ironworkers requested for referral under this paragraph. B. All employees required by the Employer shall be furnished and referred to the Employer by qualifications to perform the task required. C. The employer shall have the right to reject any ap- plicant referred by the Union without penalties, subject to all applicable Federal, State, and Local laws and ordi- nances. D. The Union shall select and refer applicants for em- ployment without discrimination against such applicants age, race, creed, color or by reason of membership or nonmembership in the Union and such selection and refer- ral shall not be affected in any way by rules, regulation, bylaws, constitutional provisions or any other aspect or obligation or Union membership policies or requirements. E. The order of referral set forth above shall be fol- lowed except in cases where employers require and call for employees possessing special skill and abilities, in which case the Union shall refer the first applicant on the register possessing such special skills and abilities. F. Apprentices shall be hired and transferred in accor- dance with the apprenticeship provisions of the Agreement between the Employer and Union. G. In the event that the referral facilities maintained by the Local Union are unable to fill the requisition of an Employer for employees within a twenty-four (24) hour period after such requisition is made by the Employer (Saturday, Sunday and Holiday excepted), the Employer may employ applicants directly at the job site. In such event, the Employer will, within 24 hours, notify the Local Union of the names and dates of such hiring. H. In the event that any job applicant is dissatisfied or was not referred in the regular order as provided above, such aggrieved of applicant may appeal in writing within ten days (10) from the day on which his complaint arose, to the Local Union Executive Board. I. The Local Union shall post in appropriate places all provisions relating to the hiring arrangement set forth in this Agreement. J. An availability for work list shall be maintained in the Local Union office, such list shall consist of the appli- cants name, list of qualifications, and telephone number. The availability list shall begin on Mondays, every mem- ber seeking employment shall come to the office for “job call” and sign up. If a member lives more than thirty (30) miles from the office he/she may call in.3 ____________________________________________________ 2 Acting Business Agent Koontz testified that Akers Steel and Atlanta Steel Erectors were both signatories to this agreement Tr. 199–200. 3 This version of art. V initially was provided to the Region 11 by letter dated July 3, 1996, from Charles R. Koontz. GC 13 The executed collective bargaining agreement with signature date of July 1, 1996 adds the phase ‘during regular office hours, Mon- day thru Friday 8:00 a.m. to 4:00 p.m. IRONWORKERS LOCAL 843 (NORGLASS, INC.) 31 Johnnie Earls, an ironworker and the general foreman of Norglass, Inc. for the past 10 years, testified that Norglass per- formed work in Laurenberg, North Carolina, at the Libby- Owens Glass Plant from February to May 1996, and that he served as Norglass’ day-shift general foreman. He called the hiring hall of Local 843 for all the ironworkers hired by Nor- glass for this project and never hired off the street. He had a standing order for ironworkers during the peak periods of the project and if there were not sufficient ironworkers available from the union hall, he waited until more were available. Only supervisors were hired directly by Norglass. Norglass did not bring in its own employees to work as ironworkers on the pro- ject. Under the terms of the labor agreement the Employers are required to contact the Union which has 24 hours to refer iron- workers from the union hall and the Employer is precluded from hiring applicants directly from the street for that 24–hour period. This requirement establishes that the hiring hall is ex- clusive Morrison-Knudson Co., 291 NLRB 250, 2589 (1988); Laborers Local 663 (Truener), 205 NLRB 455, 456 (1973). The General Counsel contends and I find that “each of the limi- tations on referrals set out in paragraph A has been held by the Board not to destroy the exclusive nature of a hiring hall ar- rangement” such as company name requested priorities Morri- son-Knudson, supra; Truener, supra; right to provide percent- age of employees from sources other than the Union, Truener, supra; priority based on layoff or prior employee status, Morri- son-Knudson, supra, citing Operating Engineers Local 406, 189 NLRB 255 (1971). The General Counsel also argues and I find that “the language of paragraph G is virtually identical to the language that the Board relied on to demonstrate the exis- tence of an exclusive hiring hall in Iron Workers Local 111 (Steel Builder), 274 NLRB 742 fn. 1. (1985).” I thus conclude that the Respondent operated an exclusive hiring hall at all times material here. Local 843’s acting business manager Koontz testified that al- though the Local has 150 to 200 members only about 30 reside in North Carolina and many work out of other jurisdictions. Local 843 had contracts to supply ironworkers to only three employers and as a result of an insufficient number of active ironworkers in his jurisdiction with the requisite qualifications, he was often unable to supply these employers with sufficient manpower from among his membership and resorted to regis- tering with the State Division of Employment Security to obtain sufficient manpower to fulfill the Union’s commitments under the labor agreement. He testified that two of the contractors sought only ironworkers who were either qualified welders or connectors, who connect the structural steel together. He takes the employees’ word at face value that they are qualified as either welders or connectors when they register on the weekly out-of-work list and any who falsely claim to be qualified are quickly weeded out by the contractor. Pursuant to the jour- neyman upgrade in training program a welding test was utilized to qualify some of the welders. However, with the exception of this separately maintained list of welding certifications, he does not note in writing any special qualifications of the ironworkers who register on the out-of-work list but relies on his memory. Typically during the period in question from February to Au- gust 1996, there were only four to five ironworkers available on the weekly out-of-work list and all who were qualified as weld- ers or connectors were immediately dispatched to jobs and consequently were not placed on the out-of-work list as they were dispatched as soon as they reported in. He knows the qualifications of all of the ironworkers who register on the out- of-work list although he does not make any written notation of this. Charging Party Robert Edge testified he has been a journey- man ironworker for 35 years as of the date of the hearing and is qualified as a rigger and all other miscellaneous skills as a structural ironworker except as a welder and a connector. He has been a member of Local 843 since the merger in May 1989. He has lived 135 miles from the union hall in Charlotte, the predecessor Local Union for 25 years. He utilizes Local 843’s hiring hall. The procedure he follows is to call the hiring hall close to 8 a.m. on Mondays to register on the weekly out-of- work list. In 1996, he would call the union hall and leave a message on the answering machine and tell them to put him on the out-of-work list. He had worked for Norglass at the Libby- Owens Plant periodically since 1972. On February 5, 1996, he was dispatched by Koontz to the Norglass job at Libby-Owens. He arrived late and was put to work. He worked 3 weeks. He became ill with a respiratory ailment and missed 3 days of work but was too ill to call in sick. On his return to work he talked to the Employer’s timekeeper, a man named “Paul.” He asked him for his paycheck and Paul said he had to lay him off but it did not have anything to do with his absence for illness and that the Employer would “more than likely call him back to work for other things.” Thereafter he called the union hall to be put on the out-of-work list every week except the week of June 3, 1996, when his blood sugar was high as he has hypoglycemia and he was unavailable for work that week. During this period he received no calls for employment although he was available for work with the only condition being he requires some notice and/or time (a day or so) to get to the jobsite as he cares for his elderly mother and must make arrangements for someone to care for her when he goes to a job. In 1995, he was dispatched to two jobs in the Charlotte area and did not require time to get someone to look in on his mother. After he was laid off from Norglass he was called by the un- ion shop steward, Chris Thomas, on that job who asked if he was on the out-of-work list and Thomas told him “they will probably be calling you back to the Norglass job.” In April 1996, he called an 800 telephone number operated by the Inter- national which contained a message that journeymen ironwork- ers should contact Koontz for a list of available jobs and which said that jobs were available in the area for up to 1-1/2 years. He was called by Koontz to work at a job at Wrightsville Beach in North Carolina on June 20, 1996, for Aker’s Steel Erectors to drag diking for a road and worked there 8 days. He had filed the initial charge in this case on June 19, 1996. He had no con- versations with Koontz between his layoff in February and his dispatch to the Wrightsville job in June. On cross-examination Edge testified he did not tell Koontz or Norglass that he wanted to return to Norglass. He worked on the Norglass job for 2 to 3 weeks until Steward Thomas had his discharged status changed to a layoff status eligible for rehire. He drove a forklift for part of the time as no one else wanted to do it. He complained about it being too dusty at the jobsite and never informed Norglass or Koontz that his health problem had abated. He applied for disability on December 22, 1997, as a result of tremors (identified as a condition diagnosed as “essen- tial tremors”) which he has had all his life. This is a hereditary condition which affects his hands and arms. He was not part of a group of union members opposing the merger. However, he DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 32 did campaign for another candidate against Koontz for the posi- tion of business manager, as he preferred having someone from his old local union as business manager. He did have two con- versations with Koontz in 1996 concerning his mother, one about the Norglass job and the other about the Wrightsville job. He has not worked but a third to one half of each year since the early 1990s. After the Wrightsville job he worked at another job in August to which he was referred by the Respondent. He did not contact Koontz after making the 800 telephone call. It was stipulated that there is no claim that Edge was not put on the out-of-work list during the week of June 3. He had no dis- cussions with Koontz concerning his tremors prior to February 1996. Union Steward Chris Thomas who served as the steward on the Norglass job testified that Edge missed the 3 days of work prior to his layoff, and had missed 2 or 3 days prior to this. Edge complained about breathing after he took something out to the silo on this job. The crew was a mixed crew of mill- wrights (a different craft) and ironworkers and the foremen were millwrights. The foremen said they were going to get Edge’s money which means they were going “to run him off [the job].” He told them it would be better to lay him off and Edge later told him that he had been laid off. Work on this project continued until April. He called Edge about additional work for Norglass as its management had asked whether Edge would be interested in returning if they obtained the work. However, Norglass did not obtain the additional work and re- duced the crew in February by consolidating shifts and thereaf- ter reduced manpower even more. As set out above, the Respondent’s referral procedures re- quire that unemployed ironworkers sign the out-of-work or weekly referral list each Monday of each week they are seeking employment through the union hall and the ironworkers are to be referred to work in the order in which they have signed the out-of-work list provided they are qualified. Pursuant to this procedure, Edge testified that after his layoff from Norglass at the end of February he signed up on the Respondent’s out-of- work list commencing with Monday, March 4. He did so by calling the union hall and leaving a message on the Union’s telephone call recording device prior to the opening of the of- fice at 8 a.m., an acceptable means of signing onto the list for employees who live a substantial distance from the union hall. Thereafter he signed up on the list on every Monday through the third week in June with the exception of the week com- mencing on June 3, when he was ill with hypoglycemia. Edge’s testimony is corroborated by his telephone records. Consequently Edge was first on the list for the workweeks commencing on March 4, 11, 18, and 25; April 8, 21, and 29; May 6, 13, 20, and 27; and June 10 and 17. During the period between March 4 and May 15, Koontz referred approximately 36 ironworkers to the Employer Norglass’ Laurenberg, North Carolina site. However, Edge was never referred again to this jobsite during this period although his was the first name on the out-of-work list for 9 of 11 weeks during this period. Nor was he referred to jobs at the two other signatories to the hiring hall agreement, Akers Steel and Atlanta Steel Erectors. It was not until June 20, the day after the filing of the charge by Edge in this case that Koontz referred Edge to an Akers Steel jobsite in Wrightsville Beach, North Carolina. At the hearing Koontz contended as justification for not re- ferring Edge to the Laurenberg job that Edge had indicated that his layoff from Norglass was for the best as it was too far for him to commute home on a daily basis as necessary to care for his ill mother, and that he only wanted work within a daily commuting distance thus placing a limitation on his availability for referral to Norglass. The Norglass jobsite was located in Laurenburg, North Carolina, about 140 miles from Edge’s home in Lincolnton, North Carolina. Koontz contended at the hearing that this was the reason for his failure to refer Edge to Norglass thereafter. Edge denied at the hearing that he had made any such statement to Koontz. Rather he testified that he had only asked to have a day or so of lead time in order to make arrangements for the care of his 91-year-old mother. As the General Counsel argues in her brief, the credibility of Koontz in this regard is called into question as he made no mention of this conversation in either of two position letters submitted to the Region setting out his reasons for not referring Edge to the Norglass jobsite. On cross-examination he testified this failure to mention the conversation resulted from a typo. In his first submission to the Region dated July 3, 1996, he stated that Edge had quit his employment at Norglass in late February with 2 months remaining on the project. In fact, Edge had been laid off as testified to by Edge and Steward Thomas. Subsequently in a letter dated September 20, Koontz asserted that Edge had asked for a layoff and that Edge left messages on the Union’s answering machine indicating “that his mother was sick and that he could only accept work close to his home.” It is undisputed that Edge consistently signed up on the out- of-work list which obviously indicated his interest and avail- ability for work. Koontz made no inquiry from Edge as to his availability for work but on June 20, notably the day after the filing of the charge by Edge in this case on June 19, Koontz suddenly referred Edge to a job in Wrightsville Beach, North Carolina, which is in excess of 200 miles from Edge’s home in Lincolnton, North Carolina. Koontz testified that the employer (Akers Steel) in the case of the Wrightsville Beach job had lifted the restrictions on the referral of nonwelders and non- connectors in order to finish the job. The record evidence further establishes that in regard to the Akers Steel and Atlanta Steel Erectors’ jobsites, ironworkers were regularly dispatched by the Union to these jobsites by Koontz and that Edge was not referred to these jobs during this period until the Wrightsville Beach job in June, although Edge was first on the out-of-work list. Koontz testified that he had standing calls from these two employees for certified welders and connectors that he was unable to fill and that Edge was not sent to these jobs, as he is not a certified welder or a connector. Edge acknowledged at the hearing that he is not a certified welder or a connector. The General Counsel submits that “Re- spondent has not sustained its burden of establishing that Koontz referred only certified welders and connectors to the jobsites of these two employees during the relevant time frame or that such a requirement in fact existed.” The General Coun- sel notes that the job order of the Employment Security Com- mission based on information supplied by Koontz which bears the date of June 11 does not list welding certification as a re- quirement for the structural ironworker applicants being sought. Edge also testified without rebuttal that he called the Interna- tional 800 telephone number job line listing jobs in the Re- spondent’s jurisdiction during the relevant period and that there were no special qualifications listed for the applicants being sought by Koontz. The Respondent introduced two letters from Atlanta Steel Erectors both dated June 24 purporting to confirm conversations 3 months prior thereto calling for certified weld- IRONWORKERS LOCAL 843 (NORGLASS, INC.) 33 ers. As the General Counsel argues these letters were dated 5 days after the unfair labor practice charge and are self-serving. The Respondent failed to call any personnel from Akers Steel Erectors or Atlanta Steel Erectors who could have provided direct testimony concerning the asserted special requirements. Analysis In Iron Workers Local 118 (California Erectors), 309 NLRB 808, the Board stated: in cases such as this one, in which a departure from hiring hall rules affects employment opportunities, it need not be alleged that the Union was negligent or be shown that the departure was based on invidious or unfair considerations in order to find a violation. Such departures, absent some justification re- lated to the efficient operation of the hiring hall, are arbitrary actions and inherently breach the duty of fair representation owed to all hiring hall users and violate the Act. In the instant case the General Counsel has established a prima facie case of a violation of Section 8(b)(1)(A) and (2) of the Act by the Respondent’s failure to refer Edge to jobsites at Norglass, Akers Steel, and Atlanta Steel Erectors. The Re- spondent has not met its burden as it has not establised that its failure to refer Edge was related to the efficient operation of the hiring hall. I do not credit Koontz that his failure to refer Edge for employment resulted from Edge’s placing a limitation on his availability in the case of Norglass or that Akers Steel Erec- tors and Atlanta Steel Erectors limited their calls for ironwork- ers to those who were either certified welders or connectors. See also Sheet Metal Workers Local 19, 321 NLRB 1147, 1155 (1996). The Respondent asserts as an affirmative defense that the al- leged failure and refusal to place Charging Party Edge on the out-of-work list on April 1, 1996, is barred by Section 10(b) of the Act as it was not included in the charge filed on June 19, 1996. I find this allegation is not time barred as it is closely related to the allegation that “since on or about March 4, 1996, the above named organization, by its officers, agents and repre- sentatives, restrained and coerced Robert H. Edge in the exer- cise of the rights guaranteed in Section 7 of the Act by failing to properly refer him to work from the out-of-work list.” Nick- les Bakery of Indiana, 296 NLRB 927 (1989); and Pioneer Hotel & Gambling Hall, 324 NLRB 918 (1997). I further find that the Respondent’s asserted defense that Edge was required to exhaust an internal union remedy prior to access to the Board is without merit and is contrary to public policy. NLRB v. Ma- rine Ship Builders, 391 U.S. 418 (1968). With respect to the merits of this allegation Edge testified that he routinely called the union hall each Monday morning to be listed on the out-of-work list during the period from January to June 1996 except for June 3, when he was suffering from hypoglycemia. His testimony is unrebuted and it is undisputed that he was not placed on the out-of-work list on that week. Since I have found that the Union operated an exclusive hiring hall at all material times, this establishes a prima facie case of a violation of Section 8(b)(1)(A) and (2) which has not been rebutted by the Union. Whether this failure and/or refusal to place Edge’s name on the out-of-work list was due to negli- gence or inadvertence is not determinative in this case as it was a failure to comply with the objective standards applicable to an exclusive hiring hall, California Bay Erectors, supra. CONCLUSIONS OF LAW 1. Norglass, Inc. is an employer within the meaning of Sec- tion 2(6) and (7) of the Act. 2. The Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The Respondent operates an exclusive hiring hall under the terms of its collective-bargaining agreement with signatory contractors. 4. The Respondent violated Section 8(b)(1)(A) and (2) of the Act by its failure to place Charging Party Robert Edge’s name on the out-of-work list on April 1, 1996. 5. The Respondent violated Section 8(b)(1)(A) and (2) of the Act by its failure and refusal to refer Charging Party Robert Edge out for employment to the Norglass job and the Akers Steel Erectors and Atlanta Steel Erectors jobs. THE REMEDY Having found that the Respondent violated the Act it shall be ordered to cease and desist therefrom and to take certain af- firmative actions designed to further the policies of the Act including the posting of an appropriate notice. The Respondent shall be ordered to refer applicants for employment who utilize its hiring hall in the order in which they sign the weekly referral list. The Respondent shall also be ordered to make Robert Edge whole for its failure to place his name on the weekly re- ferral list and to refer him for employment as found here for all loss of backpay and benefits sustained by him as a result of the discrimination against him in accordance with F. W. Woolworth Co., 90 NLRB 289 (1980), with interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987), at the “short term Federal rate” for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. § 1621. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended2 ORDER The Respondent, Ironworkers Local 843, International Asso- ciation of Bridge, Structural & Ornamental Ironworkers, AFL– CIO, its officers, agents, and representatives, shall 1. Cease and desist from (a) Failing and refusing to refer applicants for employment in the order in which they sign the weekly referral list. (b) Failing to place employees’ names on the weekly referral list. (c) In any like or related manner restraining or coercing em- ployees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Immediately refer employees for employment in the or- der in which they sign the weekly referral list to jobs for which they are qualified. (b) Make Robert Edge whole for any loss of earnings and other benefits suffered as a result of the discrimination against him, in the manner set forth in the remedy section of this deci- sion. 2 If no exceptions are filed as provided by Sec.102.48 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 34 (c) Within 14 days from the date of this Order, notify Robert Edge that it will refer him for employment in the order in which he signs the weekly referral list. (d) Preserve and, within 14 days of a request, make available to the Board or its agents for examination and copying, all re- cords necessary to analyze the amount of backpay due under the terms of this Order. (e) Within 14 days after service by the Region, post copies of the attached notice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 11, after being signed by the Respondent's authorized representa- 3 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” tive, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places at its hiring hall including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has closed the facility involved in these proceedings, the Re- spondent shall duplicate and mail, at its own expense, a copy of the notice to all current and former users of the hiring hall at any time since March 1996. (f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.