Local 426, Laborers' International Union Of North America, Afl-Cio

610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 426, Laborers' International Union of North America, AFL-CIO and Joseph Brown and Building Contractors Association of New Jersey, and Associated Contractors of Essex County, Inc., Parties in Interest. Cases 22-CB- 4580 and 22-CB-4712 24 June 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 23 March 1983 Administrative Law Judge Howard Edelman issued the attached decision. The Respondent filed exceptions. The National Labor Relations Board has delegat- ed 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 has decided to affirm the judge's rulings, findings,' and conclu- sions and to adopt the recommended Order as modified.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Local 426, Laborers' International Union of North America, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the Order as modified. i In sec III of the judge's decision, he inadvertently states that "Re- spondent member Willie Smith called as a witness by Respondent testi- fied that from December 1981 through March 1982, Brown generally shaped Respondent's hinng hall two or three times a week " The record shows, however , that it was Respondent witness Walter Lytle who pre- sented such testimony, and not Willie Smith In these circumstances, we do not adopt the judge's credibility finding as to Willie Smith Because the judge based his finding concerning discriminatee Joseph Brown's use of Respondent's hiring hall not only on Brown's own uncon- tradicted testimony, but also on the corroborating testimony of Respond- ent witnesses Lytle and H C Brown, we adopt the judge 's finding as supported by substantial, undisputed evidence 2 Although we adopt the judge 's finding that the Respondent discrimi- nated against the Charging Party, Joseph Brown , by its failure to refer him to jobs because of his nonmembership in the Respondent and thereby violated Sec 8(b)(1)(A) and (2) of the Act, we do not agree that the remedy recommended by the judge, insofar as it orders the Respondent to make whole "all other nonmember applicants who were similarly dis- criminated against for any loss of earnings they may have suffered by reason of such discrimination practiced against them ," is appropriate here Longshoremen ILA Local 851 (West Gulf Maritime Assn), 194 NLRB 1027 (1972) Here, as in West Gulf Maritime Assn, the record does not reveal that any identifiable nonmember other than the Charging Party at any time applied for work through the hiring hall and was denied referral, or was in any other manner discriminated against in such a way as to have suffered a loss of earnings Accordingly, we shall modify the judge's recommended Order by limiting the "make-whole" portion of the remedy to the Charging Party Because the Respondent used membership as the criterion for job refer- ral preference, its discrimination against Brown was based on an improp- er class distinction In these circumstances , the judge's other remedial provisions are appropriate to effectuate the purposes of the Act 1. Substitute the following for paragraph 2(b). "(b) Submit four quarterly reports to the Region- al Director, due 10 days after the close of each cal- endar quarter, subsequent to the issuance of this de- cision, concerning employment of the above-named employee Brown. Such report shall include the date and number of job applications made to the Respondent, the date and number of actual job re- ferrals by the Respondent, and the length of such employment during such quarter." 2. Substitute the following for paragraph 2(d). "(d) Make whole Joseph Brown for any loss of earnings he may have suffered by reason of the dis- crimination practiced against him." 3. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To MEMBERS 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 violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT cause or attempt to cause the sep- arate employer-members of the Building Contrac- tors Association of New Jersey, and Associated Contractors of Essex County, Inc., or any other employer, to discriminate against Joseph Brown, or any other employee, in violation of Section 8(a)(3) of the National Labor Relations Act because of their lack of membership in our Union. WE WILL NOT in any other manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL keep and retain, for a period of 2 years from the date of this decision, permanent written records of our hiring and referral operations which will be adequate to disclose fully the basis on which each referral is made and, on request of the Regional Director for Region 22 or his agents, make available for inspection, at all reasonable times, any records relating in any way to our hiring and referral system. WE WILL submit four quarterly reports to the Regional Director, due 10 days after the close of each calendar quarter, subsequent to the issuance of this decision, concerning employment of the above-named employee Brown. Such report will include the date and number of job applications made to us, the date and number of actual job re- ferrals by us, and the length of such employment during such quarter. 280 NLRB No. 74 LABORERS LOCAL 426 (BUILDING CONTRACTORS) 611 WE WILL place the referral registers,' for a period of 2 years, on a table or other accessible lo- cation in the hiring hall for easy inspection by the applicants as a matter of right, on completion of each day's entries in such registers. WE WILL make whole Joseph Brown for any loss of earnings he may have suffered by reason of the discrimination practiced against him. LOCAL 426, LABORERS' INTERNA- TIONAL UNION OF NORTH AMERICA, AFL-CIO Stanley R. Weilgus Esq., for the General Counsel. Barry Aisenstock, Esq. (Rothbar4 Harris & Oxfeld), for the Respondent. DECISION STATEMENT OF THE CASE HOWARD EDELMAN, Administrative Law Judge. This case was tried before me in Newark, New Jersey, on January 3, 11, and 12, 1983. On July 14, 1981, Joseph Brown, the Charging Party, filed an unfair labor practice charge in Case 22-CB-4580 against Local 426, Laborers' International Union of North America, AFL-CIO (Respondent), alleging in substance that Respondent had discriminated against Brown by discriminatorily refusing to refer him to jobs in violation of Section 8(b)(1)(A) and (2) of the Act. Thereafter, on August 21, Respondent entered into an in- formal settlement agreement approved by the Regional Director for Region 22 wherein Respondent agreed to refer applicants to jobs through Respondent's exclusive hiring hall without discrimination based on membership in Respondent. Based on the execution and approval of this settlement agreement the Region did not issue a complaint. Thereafter, on May 26, 1982, Brown filed a similar unfair labor practice charge in Case 22-CB-4712 against Respondent alleging that Respondent discriminat- ed against him by refusing to refer him to jobs because he was not a member of Respondent. Pursuant to an in- vestigation conducted by the Region, it was determined that Respondent had engaged in unlawful conduct in violation of Section 8(b)(l)(A) and (2) prior to the execu- tion and approval of the above-described settlement agreement and subsequent thereto. Accordingly, on July 27, 1982, the Regional Director ordered that the settle- ment agreement in Case 22-CA-4580 be withdrawn and issued an order consolidating cases and a consolidated complaint in the above-captioned cases. This complaint alleges in substance that since January 14, 1981, Re- spondent has failed and refused to refer to employment with members of the Building Contractors Assocation of New Jersey and Associated Contractors of Essex County, Inc., employer associations (the Associations), applicant Brown and other applicants because they were not members of Respondent in violation of Section 8(b)(1)(A) and (2) of the Act. Briefs were filed by the General Counsel and counsel for Respondent. On consideration of the entire record, the briefs, and my observation of the demanor of the wit- nesses, I make the following FINDINGS OF FACT I. JURISDICTION The Associations are corporations duly organized under and existing by virtue of the laws of the State of New Jersey. They maintain their principal office and place of business in the State of New Jersey. The Asso- ciations are and have been at all times material composed of various employers engaged in the building and con- struction industry and exist for the purpose, inter alia, of representing their employer-members, whose principal offices and places of business are located in the State of New Jersey, in negotiating and administering collective- bargaining agreements with various labor organizations including Respondent. At all material times, these em- ployer-members in the course and conduct of their busi- ness operations annually perform building and construc- tion services valued in excess of $50,000, which were provided and performed for customers located outside the State of New Jersey. The Board has previously taken jurisdiction over the Associations. Laborers Local 394 (Building Contractors), 240 NLRB 97 (1980); Iron Workers Local 483 (Building Contractors), 248 NLRB 21 (1980). I find that the Associations are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION Respondent admits and I find that Respondent is, and has been at all times material a labor organization within the meaning of Section 2(5) of the Act. III. THE COLLECTIVE-BARGAINING RELATIONSHIP BETWEEN RESPONDENT AND THE ASSOCIATIONS About January 14, 1981, the Associations and Re- spondent entered into a collective-bargaining agreement that contained, inter alia, provisions requiring that Re- spondent be the sole and exclusive source of job referrals of applicants to employment with the employer-members of the Associations. In this connection, the collective- bargaining agreement contains the following provisions: ARTICLE I In consideration of the foregoing, the Union (Re- spondent) agrees to furnish competent journeymen to the Employer upon his request, provided notice of such requirement is given to the Union. ARTICLE XX In the employment for workmen for all work covered by this Agreement within the territorial ju- risdiction of the Union, as herein described the Em- ployer may call upon the Union for such workmen as he may need from time to time and the Union shall, whenever possible, immediately furnish to the Employer the required number of qualified compe- 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tent workmen. The Union shall not discriminate in the referral of such workmen because of their mem- bership in the Union. ARTICLE XXXVI When a Local Union does not furnish workmen within 48 hours (Saturdays, Sundays and holidays excluded), the. contractor shall be free to obtain workmen from any source. The General Counsel does not contend that Respond- ent's hiring hall provisions set forth and described above are unlawful . Rather, the General Counsel contends that notwithstanding such provisions, Respondent has main- tained its hiring hall in a discriminatory manner, based on membership in Respondent. Respondent, through its hiring hall, refers laborers to employers who are members of, the Associations in Orange, West Orange, and Livingston Counties, New Jersey. During-the period of 1980 through August 1982, Respondent had approximately 100 dues-paying members engaged in the laborer trade. Of these 100 laborers,, ap- proximately 75 percent at any given time were generally employed. Of the approximately 25 laborers who are not employed, approximately 8 to 10 regularly shaped the hiring hall. Additionally, during this period, several non- member laborers including Brown shaped Respondent's hall at various times. Respondent maintains no hiring hall records concerning the names of applicants shaping the hall, the dates shaped, or job referrals through the hall. Fletcher Blevins, Respondent's business agent in charge of the hiring hall from May 1980 through De- cember 2, 1981, and an admitted agent of Respondent within the meaning of Section (13) of the Act, testified that he would compile a list of Respondent members who were laid off their jobs. He received such informa- tion from Respondent shop stewards. When an employer called the hall requesting a laborer, Blevins would exam- ine his ,list, observe these members of Respondent shap- ing the hall, and refer the first member on his list and present in the hall to the job. Exceptions were made when an employer requested a particular laborer or the job required an employee of special skills. According to Blevins, this list was not posted nor shown to employees, and was not maintained in Respondent's records, but kept by Blevins on his person and discarded as it became stale. Blevins also testified that on occasions .when non- members shaped, he always referred Respondent mem- bers before such nonmembers. In this connection he testi- fied specifically that he would not refer a nonmember to a job unless all Respondent members shaping the hall that day had first been referred out. Additionally, during periods when referrals were generally at a minimum and nonmembers were shaping the hall, he would inform such nonmember applicants that work was slow and no jobs were available. Daniel Rowe succeeded Blevins as business agent in charge of Respondent's hiring hall and maintained this position from December 2, 1981, through August 1982. Respondent admits that Rowe is an agent of the Union within the meaning of Section 2(13) of the Act.' Rowe admitted that he maintained Respondent's hiring hall in the same manner as Blevins. In this connection, he stated, "[B]efore I send out a nonunion man, no matter when the man gave me his name, I make sure all union men [Respondent members] have been sent out." As an example of the manner in which Rowe referred appli- cants from Respondent's hall, he stated, "[ I]f a nonunion man gave me his name a month ago and a union ' man comes in for a job a month after the nonunion man, the union members are sent out first in all circumstances." Joseph Brown, the Charging Party, became a member of Respondent about April 1981. Between April and July 1981, Brown was a member in good standing. During this period, he received several job referrals through Re- spondent's hiring hall. No discrimination by Respondent is alleged by the General Counsel for the period of April through July 1981. In July 1981 Brown was suspended from membership in Respondent as a result of dues delinquency. Thereaf- ter, Brown continued to shape Respondent's hiring hall as a nonmember from August 1981 through August 1982. It is contended by the General Counsel that during this period of time, Respondent discriminatorily refused to refer Brown to jobs because of his nonmembership in Respondent. Brown testified that in August 1981, following his sus- pension, and as a result of not being referred to jobs by Respondent, he filed the charge in Case 22-CB--4580. Shortly after filing this charge, Blevins, who was in charge of Respondent's hiring hall at the time, told him, while he was sitting in Respondent's hiring hall waiting for a job referral, that Blevins did not know why Brown was sitting there because he was not sending him out anywhere. Blevins, who testified did not deny this state- ment. Brown further testified that between August 1981 and August 1982, he generally reported to Respondent hiring hall seeking work every week, approximately 3 to 5 days per week. During this period of time he was referred to jobs a total of three times. Brown testified that during the same period a group of 7 to 10 members of Respond- ent who shaped the hall were referred to 4 or 5 jobs each. Respondent member Willie Smith called as a witness by Respondent testified that from December 1981 through March 1982, Brown generally shaped Respond- ent's hiring hall two to three times a week. Additionally, H. C. Brown, Respondent's president, testified that during the period of December 1981 through August 1982, Joseph Brown generally shaped the hall several days a week. Although I find that Joseph Brown's testimony was often very vague and lacking in detail, in view of the ' Rowe was subpoenaed as a witness by the General Counsel. He was unavailable to testify during the course of this hearing as he was hospital- ized for an indefinite period of time The parties stipulated that his affida- vits be received into evidence pursuant to Rule 804 of the Federal Rules of Evidence and that the contents of the affidavits be considered with the other evidence and testimony adduced during this hearing LABORERS LOCAL 426-(BUILDING CONTRACTORS) 613 substantial corroboration by Smith and H. C. Brown, Re- spondent's president, I conclude that Brown did in fact regularly shape Respondent's hiring hall during the. period of July 1981 through August 1982 ow a regular, weekly basis, from between, two to five times al week, weather permitting. . Further, because Respondent does not keep records of those applicants who shape their hall nor,of job referrals through the hiring hall, I will,credit Brown's uncontra- dicted testimony and conclude that during the period of July 1981 through August 1982, he was referred to ap- proximately 3 jobs by Respondent through the hiring hall and that other member applicants, numbering some- where between 8 to 10, shaping Respondent's hiring hall with similar regularity to that of Brown, were referred out by Respondent to 4 to 5 jobs each. About August 1982 Brown became a member in good standing of Respondent. Thereafter, according to Brown, he was not discriminated against by Respondent in con- nection with job referrals. In this connection, the Gener- al Counsel stipulates that since becoming a member of Respondent in • August 1982, Respondent has referred Brown to jobs in a nondiscriminatory manner. Analysis and Conclusion, , As set forth above, it is not contended by the General Counsel that Respondent's hiring hall provisions are un- lawful. What is contended is that Respondent, notwith- standing lawful hiring hall provisions, maintained its hiring hall in an unlawful discriminatory manner. That Respondent maintained a discriminatory hiring hall during the period of July 1981 through August 1982 is flatly admitted by Respondent agents Blevins and Rowe. Both Blevins and Rowe testified that nonmembers were not referred until all members seeking referrals had first been referred. In this connection, Rowe described in detail an example when a nonmember applicant might register for a job referral a month prior to a member, but nevertheless the member would be referred out by Re- spondent prior to the nonmember based entirely on the applicant's nonmembership. Considering the admissions of Respondent's agents, it would be hard to imagine a more flagrant discriminatory hiring hall practice. Indeed, the Board has consistently held that when labor organi- zations through its hiring hall prefers union members over nonunion members in connection with job referrals, such preference based on membership in the union,is dis- criminatory. Iron Workers Local 480 (Building Contrac- tors), 235 NLRB 1511 (1978). Turning to the issue about whether Respondent discri- minatorily refused to refer Joseph Brown to jobs through its hiring hall because of his nonmembership in Respondent, the evidence establishes conclusively that such discrimination did in fact occur. Thus, the evidence establishes that following Brown's suspension from mem- bership in Respondent, Respondent agent Blevins in- formed him that Respondent would no longer refer him to jobs through its hiring hall. Such discriminatory con- duct directed against Brown is further established by Brown's uncontradicted testimony that during the August 1981 through August 1982 period, during which he was a nonmember , he was referred to approximately 3 jobs while 8 to 10 Respondent members shaping no more regularly than: Brown, were referred to 4 to 5 jobs each.2 Accordingly, -,I conclude that the Respondent did indeed discriminate against Joseph Brown and other non- members by its failure to refer them to jobs because of their nonmembership in Respondent, and that .by engag- ing in such conduct Respondent operated its hiring hall in a discriminatory manner, in violation of Section 8(b)(l)(A) and (2) of the Act. . CONCLUSIONS OF LAW 1. Members of the Associations are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent is a labor organization within-the mean- ing of Section 2(5) of the Act. 3. By using membership in Respondent as the criteria for referring applicants to jobs through its exclusive hiring hall, Respondent thereby caused members of the Associations and other employers to discriminate against employees in violation of Section 8(a)(3) of the Act be- cause of their nonmembership in Respondent and has violated, Section 8(b)(1)(A) and (2) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. REMEDY Although the General Counsel does not allege discrim- ination against Brown prior to his suspension from mem- bership in Respondent in July 1981, the complaint alleges that Respondent has operated a discriminatory hiring hall in reference to other applicants since about January 14, 1981, the date Respondent and the Associations en- tered into their collective-bargaining agreement that pro- vided for such exclusive hiring hall. Although there is no specific evidence that Respondent discriminated against other applicants prior to its discrimination against' Brown, commencing in July 1981, my remedy shall cover all other applicants discriminated against by Re- spondent in the manner described above, commencing about January 14, 1981, and continuing to date. In view of my finding that Respondent has committed flagrant unfair labor practices against Brown and other non- member applicants seeking employment through its hiring hall, the extent of which is not ascertainable at this hearing in the absence of hiring hall records, I will issue a proposed remedy that provides that Respondent make whole Joseph Brown, and all other nonmember ap- plicants, that a compliance investigation shall determine who sought employment opportunities during the rele- vant period described above for any loss of earnings they may have suffered by reason of Respondent's discrimina- tion against them, with interest as provided in Florida 2 As set forth above , Brown's testimony was generally vague and often lacked detail. Moreover, in view of the absence of any records concern- ing the operation of Respondent's hiring hall, it is impossible to ascertain the exact extent of the discrimination against Brown and other non- member applicants Such determination is properly a matter to be left for compliance 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Steel Corp., 231 NLRB 651 (1977). Additionally, to ensure that Respondent conducts the operation of its hiring hall in a nondiscriminatory manner, I will recom- mend that Respondent keep and retain, for a period of 2 years, permanent written records of its hiring hall oper- ations and make those available to the Regional Director for Region 22 on request. I will further recommend that Respondent submit to the Regional Director four quar- terly reports concerning the employment of the above- named discriminatee Joseph Brown and other non- member applicants subsequently found to have been simi- larly discriminated against. I will also recommend that Respondent place referral registers for a period of 2 years on a table or other easy accessible locations in its hiring hall for the inspection by all applicants seeking to use Respondent's hiring hall on the completion of each day's entries in such registers. I recommend this portion of the remedy so that applicants may determine for themselves that Respondent's operation of its hiring hall is maintained in a nondiscriminatory manner. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed3 ORDER The Respondent, Local 424, Laborers' International Union of North America, AFL-CIO, its officers, agents, and representatives, shall 1. Cease and desist from (a) Causing or attempting to cause the separate em- ployer-members of the Building Contractors Association of New Jersey and Associated Contractors of Essex County, Inc., or any other employer, to discriminate against Joseph Brown, or any other employee, in viola- tion of Section 8(a)(3) of the National Labor Relations Act because of his lack of membership in Respondent. (b) In any other manner restraining or coercing em- ployees or applicants for employment in the exercise of their rights guaranteed them by Section 7 of the National Labor Relations Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Keep and retain for a period of 2 years from the date of this decision, permanent written records of its hiring and referral operations, which will be adequate to disclose fully the basis on which each referral is made, and on request of the Regional Director for Region 22, or his agents, make available for inspection, at all reason- able times, any records relating in any way to its hiring and referral system. (b) Submit four quarterly reports to the Regional Di- rector, due 10 days after the close of each calendar quar- ter, subsequent to the issuance of this decision, concern- ing employment of the above-named employee Brown and other nonmember applicants subsequently found to have been similarly discriminated against. Such report will include the date and number of job applications made to Respondent, the date and number of actual job referrals by Respondent, and the length of such employ- ment during such quarter. (c) Place the referral registers for a period of 2 years, on a table or other accessible location in the hiring hall for easy inspection by the applicants as a matter of right, on completion of each day's entries in such registers. (d) Make whole Joseph Brown and all other non- member applicants who were similarly discriminated against for any loss of earnings they may have suffered by reason of such discrimination practiced against them. (e) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (f) Post in all places where notices to employees, appli- cants for referral, and members are posted copies of the attached notice marked "Appendix."4 Copies of the notice, on forms provided by the Regional Director for Region 22, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to members are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. I If no exceptions are filed as provided by Sec 102 46 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- 4 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "