Cell-Crete Corp.

262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Cell-Crete Corporation and Fernando L. Chaves Laborers' Union Local 304, Laborers' International Union of North America, AFL-CIO and Fer- nando L. Chaves. Cases 32-CA-8361 and 32- CB-2418 March 29, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On July 29, 1987, Administrative Law Judge Clifford H. Anderson issued the attached decision. The General Counsel filed exceptions and a sup- porting brief. The Respondent Union filed limited cross-exceptions and a brief in support thereof and in opposition to the General Counsel's 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 briefs and has decided to affirm the judge's rulings, findings, 1 and conclusions only to the extent consistent with this Decision and Order. The judge found that the Respondent Laborers Local 304 did not violate Section 8(b)(1)(A) and (2) of the Act by seeking the termination of Charg- ing Party Fernando L. Chaves and therefore the Respondent Employer Cell-Crete did not violate Section 8(a)(3) of the Act by discharging Chaves pursuant to such request. We disagree. Cell-Crete employs laborers, cement masons, and drivers at construction jobsites in the San Francis- co Bay area of California. Its Hayward, California business office in Alameda County covers work performed in this area. The Respondent Laborers Local 304 represents laborers employed in Alame- da County. At all relevant times Cell-Crete and Laborers Local 304 operated under the terms of a collective- bargaining agreement between the Associated Gen- eral Contractors of California and the Northern California District Council of Laborers. This con- tract contained an exclusive hiring hall arrange- ment requiring an employer to request employees from the local union having work and area juris- diction. The local then furnished qualified work- In agreement with the judge, we find no merit in the Respondent Union's exceptions urging deferral to the parties' contractual- grievance- arbitration machmery. Deferral is inappropriate because of the adversity of interests between the aggrieved employee Fernando Chaves and the Respondent Union which would be excepted to represent him. In addi- tion, there is no evidence that the Respondent Employer would represent Chaves' rights in lieu of the Umon. See Laborers Northern California Council (Baker Co ), 275 NLRB 278, 287-288 (1985); and cases cited there men by written referral according to their place- ment on the out-of-work register. The labor agree- ment also permitted employers to request regis- trants by name for up to a 50-percent level of the jobsite work force, without regard for registration order. In addition, the labor agreement gave any local union discretion to permit an employer to exceed the 50-percent limit. Cell-Crete had obtained virtually all its laborer employees by sending a written by-name dispatch request to Local 304. Local 304 honored each dis- patch request and did not enforce the contractual by-name request limit. Local 304 agents Pete Moreno and Julian Vega did complain to Cell- Crete's agents throughout the first 4 months of 1986 that Cell-Crete was overusing the by-name re- quest procedure and they suggested that Cell-Crete should be requesting unemployed applicants from the out-of-work register. A few employees were dispatched by other La- borers locals to Cell-Crete jobsites located in coun- ties within their jurisdiction. Local 304 Recording Secretary Douglas Whitt testified that in his opin- ion full-time, multijob employees and Alameda County jobsite employees are contractually re- quired to be dispatched to Cell-Crete through Local 304. The parties stipulated that no employee who has worked for Cell-Crete has received more than one referral from a union and that only one union local has been involved in dispatching each employee. In late February 1986 2 Chaves solicited employ- ment with Cell-Crete and was hired as a truckdriv- er at a Santa Clara County jobsite. Chaves was a member of Teamsters Local 70, which was not in- volved in the construction industry. Sometime prior to April 23, 1986, Chaves twice visited the office of Teamsters Local 291, a construction in- dustry union, explained that he was employed by Cell-Crete, and requested a transfer from Local 70. The requests were denied by Local 291 officials who informed Chaves that Local 291 had men out of work and that he was supposed to use its hiring hall. Shortly thereafter these Teamsters officials challenged Cell-Crete's right to employ Chaves be- cause he had not been properly dispatched through Local 291. They also generally denigrated Chaves as an employee. Cell-Crete's agents considered dis- charging Chaves but eventually agreed to retain him as a laborer instead of a driver. Thereafter, Chaves telephoned Laborers Local 304 to arrange for membership. Chaves told Whitt that he "wanted to join the union for Cell-Crete." According to Chaves' credited testimony, Whitt 2 All dates are in 1986 unless otherwise stated. 288 NLRB No. 32 CELL-CRETE CORP. 263 said, "Yeah, you can get in the union, but Cell- Crete's going to have to hire 500 people before they hire you," and hung up the phone. Chaves conveyed the message to Cell-Crete's production manager Victoria Cassady, who told him that Whitt had informed Cell-Crete that the Laborers would audit the Company's payroll records and fine them $500 per diem for each employee hired "off the street." Cassady prepared a by-name dis- patch request for Chaves to Laborers Local 270 in Santa Clara county. On April 22, Chaves thereby obtained a dispatch to a Santa Clara jobsite. Chaves became a member of Local 270 and there- after worked as a laborer in several counties in the San Francisco Bay area. Even after Chaves joined Local 270 as a laborer, Teamsters Local 291 agents continued to complain about Chaves' employment. Cassady credibly testi- fied that minutes after one such telephonic com- plaint, Local 304 official Whitt also phoned to challenge the validity of Chaves' referral from the Santa Clara local and any employment arising therefrom. In July 1986 Chaves telephoned Local 304 Busi- ness Manager Peter Moreno to discuss an overtime claim against Cell-Crete. During their conversation Chaves told Moreno that he was a member of Local 270 because Whitt had refused him member- ship in Local 304. In August 1986 Chaves became involved in an- other overtime dispute while working at a Mann County jobsite. Chaves again discussed his dispute with Moreno, who promised to investigate. Later that day Whitt and another Local 304 representa- tive visited Cell-Crete's Hayward office. Whitt spoke with several laborer unit employees who cre- dibly testified that Whitt challenged the validity of Chaves' employment, denigrated his character, and announced his intention to cause Chaves' dis- charge. Whitt thereafter met with Cell-Crete repre- sentatives, resolved Chaves' wage dispute in Chaves' favor, and obtained Chaves' discharge.3 Although Whitt had opposed Chaves' efforts to obtain membership and a dispatch through Local 304 in April, Local 304 had permitted three by- name request dispatches within a few months prior to that time. It also dispatched laborers to Cell- Crete pursuant to by-name dispatch requests on 30 June and 8 December. Chaves is the only Cell- Whitt testified that in seeking Chaves discharge, he relied on subsec 3B, par 4, of the collective-bargaining agreement which states that- The individual employer shall contact the appropriate hinng hall of the Local Union having work and area Jurisdiction for all men as he or it may from tune to time need, and the Local Union shall furnish to the individual employer the required number of qualified and competent workmen for the classifications needed by the individual employer in accordance with the provisions of this Subsection 3B, if such men are available Crete laborer whose discharge has been requested by Local 304 in opposition to a by-name request procedure. The judge accepted Whitt's interpretation that the contract generally required job dispatching through Local 304's hiring hall based on Cell- Crete's home office in Alameda County, with only temporary out-of-county dispatches allowable through other locals with jobsite jurisdiction. Therefore, Chaves' Local 270 dispatch was valid only for his original Santa Clara County employ- ment. Chaves' subsequent employment after the Employer's failure to obtain such a dispatch through Local 304 was a continuing violation of the agreement. The judge rejected the contention, however, that Cell-Crete was contractually re- quired to submit a written request to Local 304 for a by-name dispatch of Chaves. He found such action would have been futile in light of Whitt's prior statements to Chaves and Cassady. The judge further found that Chaves was the first individual whose dispatch status was at issue under Local 304's new determination to invoke the 50-percent contractual restriction on by-name re- quests. He concluded that the Union permissibly abandoned its discretionary past practice of acqui- escing in excessive by-name requests and asserted a new policy restricting Cell-Crete to the contractual limit. Evidence that Local 304 had permitted three by-name request dispatches within a few months prior to Whitt's refusal to dispatch Chaves and had also subsequently permitted one by-name dispatch on 30 June and another on 8 December was deemed insufficient to undermine the finding that the ,Union had in fact changed its policy and prac- tice. Finally, the judge rejected the General Coun- sel's contention that Local 304's actions toward Chaves were based on arbitrary, invidious, or unfair reasons. While acknowledging Whitt's hostil- ity toward Chaves, the judge found the evidence insufficient to establish that such hostility resulted from reasons other than Chaves' and Cell-Crete's circumvention of the hiring hall system. Thus, the judge concluded that Local 304's request that Chaves be discharged and Cell-Crete's compliance with that request were not improper. We disagree with the judge's analysis. We find that the judge erroneously concluded that a change actually took place in Local 304's referral policies. We find instead that its actions concerning Chaves constituted a single arbitrary refusal to permit work pursuant to the contractual by-name request procedure. Chaves was the only employee that Local 304 had refused to dispatch or had requested Cell-Crete to discharge based on the by-name re- quest limitation. By permitting additional by-name 264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD requests before and after Whitt had refused Chaves a dispatch, without utilizing any objective criteria to justify such disparate treatment, Local 304 dem- onstrated that it had not in fact revoked its consent to excessive requests by name.4 Evidence of Local 304's inconsistent handling of Chaves' situation demonstrates there was no clear change in dispatch procedures nor a legitimate jus- tification for Local 304's conduct in seeking his dis- charge. Although Whitt strongly opposed Chaves' April efforts to secure membership and dispatch through Local 304, he admitted that Chaves' dis- patch through Local 270 to the Santa Clara jobsite was valid. Notwithstanding Whitt's view that any work by Chaves at other jobsites had to be cleared by Local 304, it is obvious that the Local permitted a breach of this procedure while Chaves worked at several other Cell-Crete jobsites. Moreno, one of the Local 304 officials who had complained earlier in the year about Cell-Crete's by-name requests, knew in July about the circumstances of Chaves' employment yet apparently did nothing about it. In light of this conduct by Local 304's own agents, we conclude that Whitt's subsequent conduct in de- manding Chaves' discharge was palpably arbitrary. Alternatively, even if we were to accept the judge's finding that Local 304 in fact changed its policy and practice of acquiescing in Cell-Crete's excessive by-name requests, we would fmd that such arbitrary departure from established exclusive hiring hall procedures was violative of the Act. A union which operates an exclusive hiring hall must represent all individuals seeking to utilize that hall in a fair and impartial manner. 5 In this regard, the Board has held that notwithstanding the absence of specific discriminatory intent, "any departure from established exclusive hiring hall procedures which results in a denial of employment to an applicant . . . inherently encourages union membership, breaches the duty of fair representation owed to all hiring hall users, and violates Section 8(b)(1)(A) and (b)(2)," absent demonstration of a legitimate justification. 6 In addition, the failure to give timely notice of a significant change in referral procedures is a breach of a union's duty to represent job appli- cants fairly.7 Applying the foregoing principles to this case, we note the absence of any evidence that Local 304 ever notified Chaves or any other job applicant 4 In this regard, we do not agree with the judge's rejection of the other by-name request referrals as too few to be significant. 5 E g., Boilermakers Local 169 (Riley Stoker Corp.), 209 NLRB 140, 149-150 (1974) 6 Operating Engineers Local 406 (Ford Construction Corp.), 262 NLRB 50, 51 (1982), enfd 701 F 2d 505 (5th Cm 1983), and see Plumbers Local 392 (Kaiser Engineers), 252 NLRB 417 (1980) 7 Operating Engineers Local 406, supra, 262 NLRB at 51, enfd. 701 F.2d at 510. that it was departing from its practice of allowing specific by-name requests in excess of the 50-per- cent limitation. The failure to give notice of such a change about a development critical to potential employment constituted a breach of Local 304's duty to represent Chaves fairly. Local 304 has also not established that an alter- ation of the established hiring and dispatch proce- dures was legitimately necessary to the effective performance of its representative function. Not- withstanding the apparent existence of numerous hiring hall registrants, the record establishes that Local 304 continued to sign by-name dispatches for Cell-Crete before and after its refusal to dispatch Chaves. Moreover, if Local 304's change was indeed designed or intended to benefit its member- ship as a whole, it is reasonable to assume that it would have given timely notice of its new hiring and dispatch procedures to all hiring hall regis- trants. As previously noted, the evidence indicated that it gave no notice. Based on the foregoing, we conclude that Re- spondent Local 304 violated Section 8(b)(1)(A) and (2) of the Act by demanding Chaves' discharge. We further find that Respondent Cell-Crete violat- ed Section 8(a)(3) and (1) by discharging Chaves pursuant to Local 304's demand. AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusions of Law 3 and 4. "3. Respondent Union violated Section 8(b)(1)(A) and (2) of the Act when it requested the discharge of Fernando L. Chaves in August 1986. "4. Respondent Employer violated Section 8(a)(3) and (1) of the Act by discharging Fernando L. Chaves pursuant to the Respondent Union's demand in August 1986." THE REMEDY Having found that the Respondent Employer and the Respondent Union have engaged in certain unfair labor practices, we shall order them to cease and desist and to take certain affirmative action to effectuate the policies of the Act.5 Having found that the Respondent Employer Cell-Crete unlawfully discharged and failed to rein- state Fernando L. Chaves, we shall order the Re- , spondent Employer to offer Chaves immediate and 8 The General Counsel has requested that the Order include a visita- tonal clause authorizing the Board, for compliance purposes, to obtain discovery from the Respondents under the Federal Rules of Civil Proce- dure under the supervision of the United States court of appeals enforc- ing this Order. Under the circumstances of this case, we find it unneces- sary to include such a clause Accordingly, we deny the General Coun- sel's request See Cherokee Marine Terminal, 287 NLRB 1080 (1988). CELL-CRETE CORP. 265 full reinstatement to his former position or, if that position is no longer in existence, to a substantially equivalent one, without prejudice to his seniority or other rights and privileges. Having found that the Respondent Union Labor- ers Local 304 unlawfully caused Cell-Crete to dis- charge Fernando L. Chaves, we shall order the Respondent Union to notify Chaves and Cell-Crete in writing that it has no objection to the employ- ment of Chaves by Cell-Crete. The Respondents shall be ordered jointly and severally to make Chaves whole for any loss of earnings resulting from his unlawful discharge. The Respondents shall also be ordered to preserve and, on request, make available to the Board or its agents any and all records necessary to analyze the amount of backpay due. In the case of the Re- spondent Union, its backpay liability shall termi- nate 5 days after it notifies the Respondent Em- ployer and Chaves that it has no objection to Chaves' employment and, in the case of the Re- spondent Employer, its backpay liability shall ter- minate on the date that Chaves is offered employ- ment. The amount of backpay shall be computed] in the manner set forth in E W. Woolworth Co., 90 NLRB 289 (1950), with interest thereon to be com- puted in the manner prescribed in New Horizons for the Retarded, 9 and accrued to the date of payment, minus tax withholdings required by law. ORDER The National Labor Relations Board orders that: A. Respondent Cell-Crete Corporation, Hay- ward, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against employees to encourage membership in La- borers Union Local 304, or any other labor organi- zation in violation of Section 8(a)(3) and (1) of the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Jointly and severally with the Respondent Union, make whole with interest, Fernando L. Chaves for any loss of earnings he may have suf- 9 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621. Interest on amounts accrued prior to January 1, 1917 (the effective date of the 1986 amendment to 26 U.S.C. § 6621), shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977) fered by reason of the discrimination against him, in the manner set forth in the remedy section of this Decision and Order. (b) Offer employment to Fernando L. Chaves in the job he held prior to the unlawful conduct di- rected against him or, if that job no longer exists, in a substantially equivalent position. (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its place of business in Hayward, California, and all other places where it customari- ly posts notices to employees, copies of the at- tached notice marked "Appendix A."" Copies of the notice, on forms provided by the Regional Di- rector for Region 32, after being signed by Re- spondent Cell-Crete's authorized representative, shall be posted by Respondent Cell-Crete immedi- ately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent Cell-Crete to ensure that the notices are not al- tered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent Cell-Crete has taken to comply. B. Respondent Laborers' Union Local 304, La- borers' International Union of North America, AFL-CIO, Alameda County, California, its offi- cers, agents, and representatives, shall 1. Cease and desist from (a) Causing or attempting to cause Cell-Crete Corporation or any other employer to discharge or otherwise discriminate against employees in viola- tion of Section 8(a)(3) and (1) of the Act. (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Jointly and severally with Cell-Crete Corpo- ration, make whole, with interest, Fernando L. Chaves for any loss of earnings which he may have suffered by reason of the unlawful discrimination against him in the manner set forth in the remedy section of this Decision and Order. /0 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." 266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (b) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all seniority lists, attendance records, or records showing starting times, job assignments, and hours worked, and all other records necessary for the determination of the amount of backpay due under the terms of this Order. (c) Notify Fernando L. Chaves and Cell-Crete, in writing, that it has no objection to Chaves' em- ployment by Cell-Crete and that he may have full use of the Union's hiring hall facilities without dis- crimination in connection with referrals for em- ployment. (d) Post at its business office in Alameda County, California, and any other location where it custom- arily posts notices to members, copies of the at- tached notice marked "Appendix B." 11 Copies of the notice, on forms provided by the Regional Di- rector for Region 32, after being signed by an au- thorized representative of Respondent Union, shall be posted by Respondent Union immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to members are customarily posted. Reasona- ble steps shall be taken by Respondent Union to ensure that the notices are not altered, defaced, or covered by any other material. (e) Forward signed copies of the notice to the Regional Director for posting by Cell-Crete at all locations where notices to employees are customar- ily posted. (f) Notify the Regional Director in writing within 20 days from the date of this Order, what steps have been taken to comply. " See fn lb supra. APPENDIX A 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 violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT discharge or otherwise discrimi- nate against employees unlawfully to encourage membership in Laborers' Union Local 304, Labor- ers' International Union of North America, AFL- CIO or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, jointly and severally with Laborers' Union Local 304, make whole, with interest, Fer- nando L. Chaves for any loss of earnings suffered as a result of the discrimination against him. CELL-CRETE CORPORATION APPENDIX B 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 discrim- ination against Fernando L. Chaves or any other applicants by Cell-Crete Corp., in violation of Sec- tion 8(a)(3) and (1) of the Act. WE WILL NOT in any like or related manner re- strain or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL, jointly and severally with Cell-Crete Corp., make whole Fernando L. Chaves for any loss of earnings he may have suffered by reason of our discrimination against him on August 22, 1986, with interest. WE WILL notify Fernando L. Chaves and Cell- Crete Corp., in writing, that we have no objection to Fernando L. Chaves' employment as a laborer, and that he may have full use of the hiring hall fa- cilities without discrimination in connection with referrals for employment. LABORERS' UNION LOCAL 304, LA- BORERS' INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO Douglas Gallop, Esq., for the General Counsel. Michael .1. Berg, Esq., of San Francisco, California, for the Employer. Victor .L Van Bourg and David Rosenfeld, Esqs. (Van Bourg, Weinberg, Roger & Rosenfeld), of San Francisco, California, for the Union. DECISION STATEMENT OF THE CASE CLIFFORD H. ANDERSON, Administrative Law Judge. I heard these consolidated cases in trial on 8 and 16 Janu- ary 1987. The cases arose as follows. On 8 September 1986, Fernando L. Chaves filed a charge docketed as Case 32-CA-8361 against Cell-Crete Corporation (Re- spondent Employer or the Employer) and a second charge on that same day docketed as Case 32-CB-2418 against Laborers' Union Local 304, Laborers' Interns: CELL-CRETE CORP. 267 tional Utuon of North America, AFL-CIO (Respondent Union, the Union or Local 304). On 31 October 1986 the Regional Director for Region 32 of the National Labor Relations Board issued an order consolidating cases, con- solidated complaint, and notice of hearing regarding the two charges. The consolidated complaint alleges that the Union over the period mid-April through 22 August 1986 de- manded that the Employer discharge employee Fernan- do L. Chaves and that on 22 August 1986 the Employer did so. The complaint alleges through these acts and conduct the Union violated Section 8(b)(1)(A) and (2) of the Act and the Employer violated Section 8(a)(1) and (3) of the Act. The Employer and the Union filed an- swers denying that they have in any way violated the National Labor Relations Act. All parties were given full opportunity to participate at the hearing, to introduce relevant evidence, to call, ex- amine, and cross-examine witnesses, to argue orally, and to file posthearing briefs. On the entire record, including a brief from the General Counsel and oral agrument from the Employer and the Union, and from my obser- vation of the witnesses and their demeanor, I make the followingl FINDINGS OF FACT I. JURISDICTION At all times material, Respondent Employer has been a California corporation with an office and place of busi- ness in Hayward, California, where it has been engaged in the nonretail sale and installation of cement roof decks, sound installation materials, and floors. At rele- vant times on an annual basis, Respondent Employer in the conduct of its business operations sold and shipped goods and provided services valued in excess of $50,000 directly to customers located outside the State of Califor- nia. Accordingly, Respondent Employer is, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION Respondent Union is now, and has been at all times material, a labor organization within the meaning of Sec- tion 2(5) of the Act. III, THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent Union is a constituent local union of the Laborers' International Union of North America, AFL- CIO. It represents employees employed in Alameda County, California. At relevant times, the following indi- viduals were agents of Respondent Union: 1 The preponderance of evidence introduced at the hearing was un- challenged. When not otherwise noted the findings are based on the pleadmgs, stipulations of counsel, or ci edible unchallenged documentary and testimonial evidence. Pete Moreno Business Manager Julian Vega Secretary-Treasurer Douglas Whitt Recording Secretary Respondent Employer is engaged in the construction industry in the State of California and other States. At relevant times the following individuals were agents of the Employer at its Hayward, California operations: Louis C. G Fisher President Wayne Wilburn Operations Manager Victoria Cassady Production Manager until June 1986 Tim Shea Salesman and Operations Manager during and after June 1986 Richard Jack Foreman Respondent Employer employs persons in various con- struction trades in the greater bay area including labor- ers, cement masons, and teamsters. Respondent Employ- er has been signatory to memorandum agreements adopt- ing multiemployer contracts with various trade unions including the Northern California District Council of La- borers (District Council), one of whose constituent mem- bers is Respondent Union. The most recent collective- bargaining agreement between the Employer and the District Council expired by its terms on 15 June 1986. The parties at all relevant times were operating under the terms of that agreement. The agreement recognizes the District Council and its constituent locals as representatives of Respondent Em- ployer's laborers. The contract has a union-security clause and provides for a union operated hiring hall. The agreement's hiring hall provisions state, in part: Section 3—Employment and Discharge B. Employment (1) The Union or Local Union shall maintain open and non-discriminatory hiring halls for the use of workmen desiring employment on work covered by this Agreement and such workmen shall be enti- tled to use such hiring halls. It is mutually agreed by the Employer and the Union to fully comply with all of the provisions of Title 7 of the Civil Rights Act of 1964, Presidential Executive Order #11246, and California Fair Employment Practices Section [sic], to the end that no person shall, on the grounds of sex, race, color, or national origin, be excluded from participation in, be denied the bene- fits of, or be otherwise subjected to discrimination by not having full access to the contents of Section 3 of this Agreement. . . . . (4) The individual employer shall contact the ap- propriate hiring hall of the Local Union having work and area jurisdiction for all men as he or it may from time to time need, and the Local Union shall furnish to the individual employer the required number of qualified and competent workmen for the classfications needed by the individual employer 268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD in accordance with the provisions of this Subsection 3B, if such men are available. . . . . (6) The appropriate hiring hall of the Local Union of the Union having work and area jurisdic- tion, will furnish in accordance with the request of the individual employer such qualified and compe- tent workmen of the classifications needed from among those entered on said lists to the individual employer by use of a written referral . . . Persons shall be referred in the order in which they are registered, if their registration indicates that they are qualified for and desirous of taking such referral unless they are not available for refer- ral, subject to the following conditions: First, (a) notwithstanding any other provision of this Agreement, the individual employer may re- quest a person by name, out of order, and such person must be dispatched if such person is regis- tered on the out-of-work list and if such person was employed previously by such individual employer or member of a joint venture within three years prior to such request within the territorial jurisdic- tion of the appropnate Local Union of the Union. (b) In addition to requests permitted by the pro- vision of Subsection 6(a), the individual employer may request any person registered on the out-of- work list out of order for any reason; provided, however, that at no time shall any job contain more than 50% of persons requested under Subsection 6(b).(c) Any Local Union may, at its option, permit a percentage of individual requests greater than 50% on any job. Such permission shall not be deemed a violation of this Agreement. (d) No persons shall be dispatched pursuant to the provisions of Subsections 6(a), 6(b), or 6(c) of this section unless the individual employer request is in writing, dated, is signed by an appropriate man- agement representative, specifies whether the person is a rehire and names the job for which rehire is requested. B. The Contractual Dispatch Procedures and Practices of Parties 1. Documentary evidence Dispatch records introduced into evidence for the period 1983 to the events in question concerning Chaves indicated the following. The Employer made general re- quests of Local 304 for laborers on only four or five oc- casions. In each instance the Employer determined the referred applicant was unsatisfactory and on no occasion was the referred individual hired. With the exception of requests made of other District Council locals, discussed infra, the Employer obtained all its laborer employees by sending a by-name dispatch request on company station- ery to Local 304.2 With a single exception, each of these 2 These dispatch requests generally stated, albeit sometimes untruthful- ly, that the named applicant had immediately become or was soon to become a laborer employee of the Employer dispatch requests signed by the Employer's agents identi- fied the "job" to which the applicant was to be dis- patched as located at the Employer's main office in Hay- ward, California. In every instance, Local 304 honored the dispatch request and issued a dispatch to the request- ed individual. Thus, at least until the events at issue, the Union had not enforced the by-name request limits con- tained in the contract.3 A few employees were dispatched by other District Council locals. One dispatch was obtained from Laborers Local 270 located in Santa Clara County for an individ- ual to be sent to a Santa Clara County jobsite in 1983. Two individuals were dispatched by Local 326, a Solano CoUnty Local, to a jobsite within that county in May 19,86. It is not clear if these were general or name re- quest dispatches. Fisher testified the Solano County dis- patches were required by the Employer's contract with the jobsite general contractor. In addition to the documentary evidence of dispatches described above, the parties stipulated that the parties' records indicated that no employee had received more than one referral and, consistently, only one local union had been involved in dispatching each employee. Fur- then Chaves testified without contradiction that to his knowledge, during his employment with the Employer, all other employees in the Employer's laborers' bargain- ing unit were members of Local 304. 2. Testimony concerning dispatch practices Whitt testified at great length regarding his interpreta- tion of contract dispatch procedures as they applied to the Employer. He took the position, and represented that Local 304 acted consistently with his position, that all re- quests for job dispatches by the Employer were required to go to Local 304 for: (1) Alameda County work and (2) for all job applicants who would be based at the Hay- ward office, i.e., hired as full-time multijob rather than single jobsite employees. Whitt stated that Local 304's jurisdiction did not extend to jobsites outside of Alameda County. Therefore work at those out-of-county jobsites was not of concern to him save that, he insisted, dis- patches to those jobsites by other local unions did not entitle those job applicants who became employees on those jobsites to transfer their employment to Alameda County sites without obtaining a new dispatch from Local 304. Thus, under Whitt's interpretation, the con- tract in practice required full-time employees and Alame- da County jobsite employees to be dispatched through Local 304's offices. Only those employees who were to work exclusively at a jobsite or jobsites outside Alameda County were exempt from this obligation under the con- 3 There was uncontradicted evidence that the Union eventually formed an intention to enforce the contract limits and informed the Employer of this intention. Local 304's agent, Moreno, commencing about January 1986, and continuing through April 1986, complained to the Employer's agents that the Employer was overusing the by-name request procedures and that, because the Union had unemployed registrants on the out-of- work list, the out-of-work list should be utilized by the Employer. Julian Vega complained to Cassady on several occasions of the number of people on the Union's out-of-work list and asserted that the Employer should be requesting applicants from the out-of-work list rather than using the by-name request procedure CELL-CRETE CORP. 269 tract. Implicit in the testimony of Whitt was the propoSi- tion that laborer employees of the Employer working at jobsites outside Alameda County would be regarded as properly dispatched and employed under the contract if dispatched by Local 304 because the Employer's main facility or yard was located in Alameda County. There is some evidence in the record that laborer locals outside Alameda County did not challenge laborer employees of the Employer working outside of Alameda County based on an original Local 304 dispatch. C. The Events Concerning Chaves The Employer employs truckdrivers under a coll&- tive-bargaining agreement or agreements with the Inter- national Brotherhood of Teamsters and certain of its constituent local unions including Local 291 whose juris- diction includes Santa Clara County, California. Presum- ably the relevant agreement contains an exclusive hiring hall provision. In late February 1986, Fernando L. Chaves had occasion to learn of a possible job opportuni- ty with the Employer at a jobste in Santa Clara County. Consequently, Chaves visited the Employer and solicited employment as a truckdriver. Chaves was interviewed by Production Manager Victoria Cassady, who asked Chaves if he "was in the Union." Chaves at the time was a member of a Teamsters local not involved in the con- struction industry, Local 70. Chaves presented his duei card to Ca ssady and was hired to commence work the following day. Sometime before 23 April 1983, Chaves went to the office of Teamsters Local 291 and spoke with Richard Durossette, an official of Local 291. Chaves informed the official that he was an employee of Cell-Crete Corporation and wished to transfer from Local 70 to Local 291. Durossette said, in Chaves' testi- mony, "Cell-Crete. What the hell's Cell-Crete doing, you know, hiring a man you know. You guys are supposed to use . . . you're supposed to use my hiring hall." Chaves left without obtaining a transfer. A few days later Chaves visited Steven Marenkovich, a Local 291 official who had previously been a business agent with Local 70. Chaves informed Marenkovich he wished to transfer into Local 291. Marenkovich declined his request telling him he had "men here out-of-work." Although he failed in transferring Teamsters locals, Chaves continued his employment with the Employer at the Santa Clara County jobsite as a truckdriver, appar- ently also doing laborer's work. Soon thereafter Duros- sette initially, and later accompanied by Marenkovich, went to the Employer's facility, and (1) challenged the Employer's right to employ Chaves when he had not been properly dispatched through Local 291, (2) asserted that Local 291 would not allow Chaves to transfer into Local 291 under the circums Lances presented, and (3) generally denegrated Chaves as an employee. The Employer's agents, evidently acting on the com- plaints from the Teamsters representatives, considered discharging Chaves but, holding the view that he was a good worker, determined first to offer him employment as a laborer. Chaves was told by the Employer's agents, including Cassady, that he could not work in the Team- sters' bargaining unit but, if he would agree to become a laborer, he could be retained. Chaves agreed. The evidence regarding Chaves' contacts with Local 304 at this point is somewhat confused. Cassady testified that she did not prepare the by-name request letter the Employer had uniformly used up to this time to obtain a by-name dispatch from Local 304. Rather, she testified that Chaves volunteered to go to Local 304 and arrange for membership. 4 Chaves testified that he telephoned Local 304 and spoke with Whitt: I told him my name, told him I wanted to join the union for Cell-Crete. He said—he started yelling, said he had 500 people down here without work. He said, "Yeah, you can get in the union, but Cell- Crete's going to have to hire 500 people before they hire you. I told the man—I go, I've already been working for a month or two, and tried to talk to him. He hung up the phone and that was that."5 Chaves testified he reported the substance of this tele- phone call to Cassady. 6 At that point Cassady offered Chaves a transfer with the Company to Los Angeles, which offer Chaves declined. Chaves then suggested that he join Laborers Local 270 in Santa Clara County and by that means continue working for the Employer. Cas- sady agreed and prepared a by-name dispatch request to Local 270. About 22 April Chaves presented the dis- patch request to Laborers Local 270 and obtained a dis- patch to a then-current Santa Clara jobsite. He paid his membership fees and dues to Local 270 and maintained his membership at all relevant times thereafter. After being dispatched by Local 270, Chaves worked initially at the Santa Clara site and thereafter in seven or eight of the counties in the greater San Francisco Bay Area as a laborer being paid the laborers' contract rate. Cassady testified that even after Chaves joined Local 270, Teamsters Local 291 agents continued to complain about Chaves' employment at the Santa Clara jobsite. Cassady testified that Durossette telephoned her on at least one occasion and asked her why Chaves was still being employed. Cassady responded, in her testimony, that Chaves was in fact "in a union," at which point she transferred the call on to other officials of the Employer. She testified that a few minutes later Whitt called com- plaining that the Employer was employing somebody not in Local 304. Cassady responded to Whitt that Chaves was in Laborers Local 270. Whitt challenged the validity of a referral by the Santa Clara local. At this point Cas- 4 It was clear that by this tune Moreno and Vega had been complain- ing to Cassady regarding the Employer's overuse of the by-name request process. See fn. 2 infra. 5 Whitt denied ever having such a conversation with Chaves. I credit Chaves both on demeanor and on the belief that he would not fabricate such a conversation Whitt, who did not know Chaves at the time, may simply have forgotten the call 6 Chaves further testified that Cassady told him in this conversation that she had also had a conversation with Whitt in which Whitt had told her that Cell-Crete "could not hire anyone off the street and that Labor- ers were going to audit the company's payroll records and fine them $500 per day for each day [Chaves] worked there" Although Cassady did not corroborate this testimony in all its circumstances, I credit it. Again. Chaves would not likely misrecall such a conversation. 270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sady transferred Whitt's call to other officials of the Em- ployer. 7 These other individuals did not testify. Matters continued without further event until July 1986. At that time Chaves telephoned Moreno to discuss an overtime claim against Cell-Crete. During the course of this conversation Chaves told Moreno that he was a member of Local 270 rather than Local 304. When Moreno asked him why this was so, Chaves responded that it was because Whitt had refused to allow him to join Local 304. Moreno, in Chaves' testimony, asked why this had happened and Chaves replied that he did not know and the conversation turned to other matters.8 Again in August 1986, Chaves became involved in a wage dispute with the Employer concerning work at a Mann County jobsite. On 22 August 1986 Chaves, ac- companied by fellow employee Richard Jack, went to Local 304's offices. Moreno was not there but an office employee reached him by telephone and Chaves spoke with him. Chaves related his wage dispute to Moreno and Moreno said he would investigate the matter and contact Chaves later that day. Later in the day Whitt ar- rived at the Employer's facility in Hayward with another Local 304 representative. Whitt initially spoke to several of the Employer's laborer unit employees including Richard Jack and Jack Franklin Apparently in a bellig- erent mood, Whitt queried these individuals regarding their union membership, challenged the validity of Chaves' employment status, attacked Chaves' personal character, and announced his intention to cause Chaves' discharge. Whitt, in Franklin's memory, related that Chaves had attempted to obtain a dispatch through Local 304 months before and, when thwarted, turned to Local 270 and obtained an improper dispatch.8 Whitt thereafter met with agents of management and resolved the Chaves grievance in Chaves' favor. Whitt complained again of the impropriety of the Employer's means of obtaining the Local 270 dispatch regarding Chaves and, through those complaints as admitted in the answer, sought and obtained Chaves' discharge." Chaves has not been employed by the Employer since nor has the Union changed its position that Chaves was improperly employed by the Employer in August as a la- borer. D. Analysis and Conclusions 1. Issues and positions of the parties It is undisputed that the Union sought the discharge of Chaves, and the Employer, acquiescing in that request, discharged Chaves. Respondents argue initially that the entire matter should be deferred to arbitration, a position opposed by the General Counsel. The Union and the Employer further assert that the discharge was proper 7 There is a dispute regarding the timing of this conversation and who initiated the call. It is clear, however, and I find, that Whitt challenged the validity of a referral from Local 270 and any employment arising out of it Moreno did not testify Chaves' version is credited. 9 Whitt demed he made the statements attributed to him I credit the employees involved pnmanly on demeanor grounds. 10 Chaves later learned from Employer's agents that the Union had challenged the propnety of his initial dispatch as a laborer for the Em- ployer. because, as of the time of the discharge, Chaves was em- ployed as a laborer in counties other than' Santa Clara and therefore his initial dispatch was obtained in viola- tion of the contract. The General Counsel challenges this latter defense with a number of arguments. First, the General Counsel argues that the contract on its face or by interpretation and practice allows an employee once dispatched to a job by any District Council local under the collective-bargaining agreement to continue his em- ployment relationship in any bay area county without being redispatched. Thus, the General Counsel directly challenges the contractual defense of Respondent. Second, the General Counsel argues that, even if the contract either facially or through practice did not allow Chaves' Santa Clara dispatch to justify continued em- ployment in other counties, including Local 304's juris- diction, Respondents' contract argument was not in fact the true motive for Local 304's efforts to cause Chaves' termination. Rather, the General Counsel asserts that Local 304's true motivation was the apparent, although less than fully defined, "troublemaker" status of Chaves while a member of Local 70 of the Teamsters. The Gen- eral Counsel argues such "troublemaker" status is an ar- bitrary, invidious, and illegal basis for discrimination against Chaves. It is appropriate to discuss these issues seriatim. 2. The issue of deferral Respondents assert the following contract clauses as a basis for deferring the instant action to arbitration: (17) Any person aggrieved by the operation of the hiring hall shall submit his grievance to the per- manent hiring hall neutral arbitrator provided that such submission is made in writing stating the rea- sons for the grievance, within ten (10) working days after the occurrence of the grievance. The Arbitra- tor shall have full power to adjust the grievance, and his decision thereon shall be final and binding upon the person submitting the grievance and all parties hereto. Forms for the submission of any such grievance shall be available at all times in the office of the Union in each Local Union. (18) The permanent hiring hall neutral arbitrator shall be Adolph Koven and notices required by this Section shall be mailed or delivered to 304 Green- wich Street, San Francisco, California 94133. The date of postmark and/or date of delivery of the grievance, whichever is later, shall toll the running of the ten (10) day period. The cost of arbitration shall be borne equally by the Employer and Union regardless of who the Local Union or individual employer is. Respondents expressly waived any right to assert the time limitations in the contractual provisions as a bar to a claim filed by the Charging Party regarding the matters underlying the instant action. Counsel for Respondent Union in his oral argument frankly acknowledged the Board's refusal to date to defer to arbitration when the interest of the Charging Party differs from the parties to the contract. See, e.g., CELL-CRETE CORP. 271 ' 1 - Iron Workers Local 433 (AGC)„ 228 NLRB 420 (1977); Iron Workers Local 118 (Bostrom-Bergen), 219 NLRB 467 (1975); Electrical Workers IBEW Local 67,5 (S & M Elec- tric), 223 NLRB 1449 (1977). Although acknowledging the existence of those cases, counsel argued that the in- stant case "presents the best case for deferral in a hiring hall referral situation that can exist." Thus, counsel for the Union argued that the contract creates independent rights of action in users of the hiring hall and further provides a convenient means of initiating that procedure. Counsel argues that the contract provides an arbitrator with as much independence and continuity of service during the life of the contract as can be arranged through contractual agreement. Thus, argues counsel, any inherent disharmony of the positions of the Employ- er and the Union as opposed to a person allegedly ag- grieved under the hiring hall system is minimized and the opportunity for fairdecision by an independent arbitrator is maximized. The General Counsel opposes the deferral relying primarily on the Board cases cited supra. The simple answer to Respondents' motion to defer is that the Board cases cited are determinative of the ques- tion unless and until the Board modifies its position. Without challenging counsel for Respondent Union's characterization of the contract as the "purest" contrac- tual procedure for justifying deferral of a claim brought by a hiring hall user against both the Employer and the Union, it remains clear that the Board regards the con- flict between the positions of the parties to the contract, who pay the arbitrator, and the Charging Party as fatal to deferral. If Respondents seek to obtain a change in Board law in this area, they must take their arguments to the Board itself. An administrative law judge is bound to apply, not modify, Board law. 3. Was the discharge of Chaves justified by the contract? En deciding whether a union and an employer violate Section 8(b)(2) and Section 8(a)(3) of the Act by causing the discharge of an employee, the threshold issue is the propriety of the union's discharge demand. As the General Counsel has shown in an eloquent marshaling of the authorities on brief, a union that seeks the discharge of an employee for violation of hiring hall regulations starts in a hole. The Supreme Court has held that a union may request that an employee hired in viola- tion of valid hiring hall procedures be discharged. Team- sters Local 357 v. NLRB, 365 U.S. 677 (1961). The Board has held, however, that a union's power in operating a hiring hall is so great that any union action preventing an employer's hire or causing the termination of an em- ployee is presumed to violate the Act. Operating Engi- neers Local 18 (Murphy), 204 NLRB 681 (1973). See also Iron Workers Local 433 (AGC), 228 NLRB 1420 (1977), enfd. 600 F.2d 770 (9th Cir. 1979); Carpenters Local 25 (Mocon Corp.), 270 NLRB 623, 630 (1984 enfd. 769 F.2d 574 (9th Cir. 1985). Thus, in this case the burden of proof in justifying their conduct is explicitly on Re- spondents. In this sense no presumption of innocence exists in the hiring hall discharge context. Here the relevant question presented is whether the contract language, quoted supra, and the evidence relat- ing to the Union's dispatch procedures and practices are sufficient to constitute a justification for the Union's re- quest that Chaves be terminated. The initial contract issue to be resolved is whether a dispatch by a laborers' local in a county other than the home base county of the employer, i.e., Local 304, is sufficient to allow general employment in all the counties covered by the contract. Considering the contract, the testimony of both the Employer's and Union's agents regarding the actual op- eration of the hiring hall, as well as the documents intro- duced that record previous dispatches under the con- tract, I find that Respondents have met their burden of proof in showing that the contract has been applied, ex- cepting the Chaves' incident, so that a dispatch from the Santa Clara local 1 ' was valid only for the period of time the dispatched employee was working at a Santa Clara jobsite. The contract is not sufficiently clear on its face to require this interpretation nor is it in any way incon- sistent with such an interpretation. I discern nothing in this interpretation inconsistent with the realities of multi- county construction nor inimical to the Board's deci- sional law. Thus, I find that the contract has been interpreted to require general job dispatching to occur at the employ- er's home base local with only temporary out-of-home- county jobsite staffing occurring through other locals with jurisdiction over the particular jobsite involved. I find no significant evidence in the record to suggest that this has not been the practice of the Employer and Local 304 or, for that matter, other laborers' local under the contract during relevant periods. Thus, Chaves testified without contradiction that all laborer unit employees of the Employer, saving only himself, were members of Local 304. The parties stipulated that no laborer unit em- ployee of the Employer had received more than a single job dispatch. Whitt testified without contradiction that he believed Chaves was the first individual who had sought to parlay an out-of-county jobsite dispatch into permanent multicourity jobsite employment with the Em- ployer. Although the dispatch records do reveal a few out-of-county laborers' local union jobsite dispatches, there was no evidence offered to suggest that those job- site dispatches were for other than specific jobsite work of limited duration and that those individuals employed • under those dispatches did not terminate their employ- ment at the conclusion of that jobsite work. It is also clear from at least some of the dispatches in evidence that, when the Employer undertook dispatch requests through Local 304, the individuals were dispatched to full-time employment rather than to temporary or jobsite employment and that they were carried on the Employ- er's personnel records as permanent employees and sent from jobsite to jobsite without concern for the jobsite's geographic location in one county or another. Further, there is some record evidence to suggest that laborers' locals outside of the Alameda County jurisdiction of Local 304 recognized and respected this procedure. " I do not find, nor do I believe Respondents contend, that the Santa Clara local dispatch was invalid for Santa Clara County work 272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Given the above, it is clear that Chaves' Local 270 dis- patch was valid only for his original Santa Clara County employment. It is also clear and I find that the contract as interpreted and applied by the Employer and the Union required that Chaves be dispatched by Local 304 when his Santa Clara County employment ended as a condition precedent to Chaves' employment in other counties. The Employer's failure to obtain such a dis- patch was a violation of the agreement. Chaves' employ- ment thereafter was a continuing violation of the agree- ment. The second thrust of the General Counsel's attack on Respondents' contract defense goes, not to the contract's dispatch procedures nor to the validity of Chaves' Local 270 dispatch in justifying his continued employment but, rather, to the Union's apparently consistent past practice of allowing the Employer to employ essentially any indi- vidual it desired as a laborer under any circumstances simply by the means of a by-name request for the dis- patch of that individual." Thus, the General Counsel argues that, because the Union's consistent practice had been to dispatch anyone the Employer wanted until Chaves, it lost the right to insist on Chaves being dis- patched through its hall." The record is clear that, until the Chaves events, the Employer had in essence ignored the restrictions of the hiring hall provisions by utilizing the technique of re- questing individuals by name through Local 304 in virtu- ally all instances. Although there is some evidence that a few nonspecific requests were made by the Employer -since 1983, none of the individuals dispatched pursuant to such requests had been hired. The General Counsel emphasizes the Union had, until the Chaves matter, no practice of asserting the 50-percent restriction quoted `supra. Respondent Union admits that it was only when the Chaves events came to pass that the Union sought to specifically assert its right to limit the Employer's by- name request of laborers. There is other record evidence, however, that the Union beginning in early 1986 was becoming dissatisfied with the Employer's exclusive utilization of by-name re- quest hiring. Indeed, Respondent Union's agents, Whitt and Moreno, were each increasingly opposed to the Em- ployer's excessive use of by-name requests when the Union's out-of-work list contained numerous individuals who were seeking dispatch." These union protestations took on increasing vigor and reached a peak coincident with the Employer's efforts to transfer Chaves to laborer status. Based on this evidence, I find that Chaves was the first individual whose dispatch status was at issue under the Union's new determination to invoke the contract's restrictions on by-name request hiring. 12 Because the contract allows the Union to acquiesce in an employer's request of named individuals in excess of 50 percent, the General Counsel does not contend that the parties violated the contract's terms. 13 The General Counsel's argument that the Union's asserted reasons for opposing Chaves were mere pretext offered to cloak other, impermis- sible, motivations is discussed infra, 14 By-name requests presumably do not draw from the out-of-work list or, at the very least, do not take applicants in the order of priority set forth in the contract. Given these preliminary findings, the question remain- ing is whether the Union could abandon its previous ac- quiescence in the Employer's hiring practices and, in the case of Chaves; for the first time assert the letter of the contract to restrict by-name dispatch requests." Without dealing with the question of an arbitrary or invidious reason for the assertion, a matter to be dis- cussed infra, I find that it is permissible for a union to abandon a past practice of acquiescing in an employer's excessive by-name requests and to assert the more re- strictive provisions of the contract. I find that such a change to a more restrictive view is not per se an unrea- sonable or arbitrary action even when, inevitably, it op- erates to deny, for the first time, a dispatch to an individ- ual who would have obtained such a dispatch but for the Union's new vigor in applying the terms of the contract. Thus, I do not fmd the Union's change in its past prac- tice to a new practice of holding the Employer to the 50-percent limit in by-name requests, and consequently refusing Chaves a dispatch, was per se a violation of Sec- tion 8(b)(2) by the Union." 4. Was the Union's opposition to Chaves based on improper reasons? -I have found, supra, that neither the contract by its terms nor in its application by the Union, including the Union's previous generous treatment of by-name requests 15 Counsel for Respondent Union in arguing the case orally at the con- clusion of the hearing suggests that this question is not before me on the facts of the case because the Employer never submitted a written request for a by-name dispatch of Chaves as required by the contract and as pre- viously done by the Employer I reject this argument. The submission of a by-name request by the Employer on the facts of this case would have been a futility. The Union's agent Whitt clearly informed both the Charg- ing Party and Cassady, the Employer's agent, that Chaves could not be dispatched pursuant to a by-name request under the contract because the Employer was beyond the 50-percent limit and there were numerous ap- plicants on the out-of-work list dispatch with dispatch priority over him Thus, I view this case, contrary to the arguments of counsel for Re- spondent Union, as no different than one where an employer had submit- ted a written request for a by-name dispatch for an employee and the union had refused to issue such a dispatch asserting that the employer was in violation of the 50-percent limitation under the contract that breach the Union was, for the first time, declining to waive. 16 The General Counsel also argues that by permittmg the Employer to make by-name requests after Whitt had refused Chaves' dispatch, Re- spondent Local 304 demonstrated that it did not, in fact, ever change its previous practice of allowing unlimited by-name requests by the Employ- er. Thus, the General Counsel argues the Chaves refusal was not the first act.of a new policy but rather a one-time affair and "probably arbitrary in nature." Although it is true that a few by-name dispatch requests of the Employer were granted by the Union after Whitt had refused to dis- patch Chaves, I do not find this evidence sufficient to undermine my finding that the Union had in fact changed its policy and practice. This is so because the actual dispatch procedure itself is managed by agents other than Whitt so that it was possible for Whitt to be exhorting Re- spondent Employer to restrict its by-name requests at the same time the dispatchmg officials, ignorant of Whitt's actions, were granting them. Second, it is also possible that the Union, in contemplation of the instant litigation, may have been taking a "safe" position that would minimize potential exposure to liability until the instant litigation was concluded. Thus, it would avoid the danger of applicants similarly situated to Chaves' filing new charges and new complaints issuing. Primarily, how- ever, my resolution in finding the Union's change in attitude was sincere and not limited to Chaves is grounded on the undisputed evidence that Local 304's agents asserted such Intention both before Chaves was hired by Respondent Employer and, m Whitt's case, before he knew Chaves' identity. CELL-CRETE CORP. 273 'Er by the Employer and its subsequent limitation with con- sequential adverse consequences to Chaves, supports a finding of a violation of Section 8(b)(2) of the Act. The General Counsel argues futher on brief: In cases where the agreement permits or implies discretion [to seek discharge], the Board still pre- sumes a violation, and requires the charged party to show "by evidence of a compelling or overriding character" that its discretion was exercised in good faith, not in an arbitrary manner, free of personal and political animus and consistent with the pur- poses of the agreement. [Glaziers Local 558 (PPG Industries), 271 NLRB 583, 585 (1984).] The General Counsel cites a host of cases in which the Board has held that a union's exercise of such contrac- tual discretion to cause an employee's discharge motivat- ed by arbitrary, irrelevant, or invidious considerations violates the Act, including Carpenters Local 1016 (Ber- tram Construction), 272 NLRB 539 (1974) (employee considered "bad news," a "troublemaker"); Carpenters Local 720 (Stone & Webster), 274 NLRB 1506, 1511 (1975) (employee "aggravating" union representative); Glasgow, Inc., 233 NLRB 126 (1977) (animus due to em- ployee's role in jurisdictional work dispute). 'The General Counsel's argument is that for some reason, and the General Counsel at no time was specific in identifying that reason," the Teamsters and through them Local 304 took dislike to Chaves as a result of per- haps interunion or other protected conduct while repre- sented by Teamsters Local 270. In the General Counsel's theory the animus of Teamsters Local 270 agents was conveyed to Whitt and others at Local 304. Under this theory Local 304's agents, based on this hostility, dis- criminated against Chaves initially by denying him an initial dispatch or transfer in April and later by demand- ing and obtaining his discharge in August 1986. The General Counsel's evidence in support of the theory includes statements attributed to Teamsters agents, as set forth supra, which were made to the Em- ployer's representatives and Whitt's remarks to the Em- ployer's employees and agents in April and August. Crediting employee Franklin's testimony, I have found that, in fact, Whitt was actively hostile to Chaves during his August trip to the Employer's premises and, as noted supra, referred to Chaves as a troublemaker and other- wise indicated a hostility to Chaves. I have also found Whitt called Cassady immediately after the Teamsters called to complain of Chaves. The General Counsel's arguments regarding the basis for this animus against Chaves is, however, not only vague and without specific origin, it is also inconsistent with critical elements of the uncontradicted evidence. Thus, when Chaves first con lacted Durossette of the Teamsters, a time when on this record there is no sug- gestion that Durossette knew anything about his past, Durossette took severe umbrage with Chaves' attempts " Chaves was not asked and did not testify regarding any belief or even supposition he might have why either the Teamsters agents or Local 304's agents would be hostile to him as an individual or as a member of a class or group. to obtain employment with Cell-Crete by bypassing the hiring hall dispatch system. Thus, the first clear evidence of hostility to Chaves, which is later similarly manifested in perhaps more abusive form by other Teamsters and Laborers agents, occurred at a time when no possible knowledge could have existed of any other activities or opinions Chaves held save his willingness to bypass the hiring hall process and obtain a job "off the street." I find substantial evidence to support and little basis to doubt a finding that the union agents' ongoing hostility to both Chaves and Cell-Crete was based entirely on that ground. Thus, both Teamsters agents in their contacts with the Employer, while hostile to Chaves in a more general sense, addressed primarily both his and the Em- ployer's impropriety in seeking to bypass the hiring hall system at a time when there were many individuals on the out-of-work list seeking an opportunity to be dis- patched. Without suggesting that it is impossible for labor organization officials to form adverse judgments of individuals based on their internal union political views, on jurisdictional disputes or on any of the numerous bases the Board has held violates a union's obligations under Section 8(b)(1)(A) and (2) of the Act and the cited cases, it is also true that some labor organization officials do form adverse judgments of individuals who attempt to bypass contractual hiring hall provisions. On the facts of this case, the General Counsel is suggesting that the animus directed toward Chaves is based on something other than such a view. Yet the General Counsel: (1) made no specific reference to other Chaves' acts, opin- ions, or status that would have engendered improper hostility, (2) did not call the Teamsters agents to inquire about the basis of their hostility to Chaves, and (3) failed to adduce evidence from Chaves regarding even specula- tion about the basis of the animosity that the General Counsel advances as improper. Whitt to the contrary denied any hostility to Chaves other than that resulting from his participation with the Employer in a scheme for bypassing the hiring hall system. Contrasted to the lack of evidence supporting the General Counsel's theory, there is uncontradicted evidence that the union officials involved reacted hostilely to Chaves and the Employer's attempts to bypass the hiring hall system before Chaves was otherwise known to them. Further, those individuals have been exhorting Respondent Employer's agents to utilize the contractual hiring hall process well before Chaves was employed by Respondent in any capacity. Based on all the above, I am unable to sustain the con- tention of the General Counsel that the actions of Re- spondent Union in this case were based on arbitrary; in- vidious, or unfair reasons. Rather I find, on this record, the General Counsel has failed to establish that there was any other reason for hostility toward Chaves than the belief Chaves was the undeserving beneficiary of the Employer's improper manipulation of the hiring hall pro- cedures, a manipulation which, in Local 304's view, was in violation of the contract and adverse to the hiring hall registrants to whom the union agents felt an obligation. Accordingly, based on all the above and the record as a whole, I find the Union did not seek Chaves' termination from the Employer for arbitrary or invidious reasons. 274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Union's actions in seeking Chaves' discharge was therefore not improper. 5. Summary and conclusions I have found above that the contract provides a sound basis both by its terms and in its application for the Union's denial of Chaves a dispatch and the subsequent seeking of his termination from Respondent Employer. I have also found that it was not improper for the Union to have changed its practices regarding limitation of the Employer's use of by-name dispatch requests. I have fur- ther found that there was no improper motive for the Union in seeking Chaves' discharge. It follows, therefore, that the Union did not violate Section 8(b)(1)(A) or (2) of the Act by its conduct and I shall dismiss the com- plaint with respect to Local 304. An employer, such as Respondent Employer, when it acquiesces in a union's request for the discharge of an employee for being in violation of hiring hall procedures, it is at risk if the union has violated the Act in making such a request. If a union has a valid reason for making its discharge request, it is not a violation of Section 8(a)(1) and (3) of the Act for an employer to accede to such a request. I have found such to be the case here. Accordingly, I find that the Employer did not violate Section 8(a)(1) and (3) of the Act when it discharged Chaves in accordance with the Union's demand. This being so, the Employer has not violated the Act and I shall dismiss the complaint with respect to it. On the foregoing findings of fact, and the entire record, I make the following CONCLUSIONS OF LAW 1. Respondent Employer is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent Union did not violate Section 8(b)(1)(A)- and (2) of the Act when it requested the discharge of Fernando L. Chaves in August 1986. 4. Respondent Employer did not violate Section 8(a)(1) and (3) of the Act by discharging Fernando L. Chaves in August 1986. 5. Respondents have not otherwise violated the Act. [Recommended Order for dismissal omitted from pub- lication.]