Iron Workers Union, Local 433

530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Iron Workers Union, Local 433 and Lester A. Sisson Cases 31-CB-4883 and 31-CB-4884 28 September 1984 DECISION AND ORDER BY MEMBERS ZIMMERMAN, HUNTER, AND DENNIS On 16 September 1983 Administrative Law Judge Timothy D Nelson issued the attached deci- sion The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed a brief in support of the decision 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,' and conclusions 2 and to adopt the recommended Order The judge found the Respondent unlawfully re- fused to refer Sisson from its exclusive hiring halls because the refusal was based on a dues arrearage arising in another local Thus, Sisson had to be ac- corded the statutory grace period in the Los Angeles/Las Vegas bargaining unit before he could he denied referrals in that unit's area of work Be- cause Sisson was not afforded such a period, the judge found that Business Agent Ward's statement to Sisson that he must satisfy his Omaha obligation to stay registered for referrals in Los Angeles vio- lated Section 8(b)(1)(A), and Business Agent Fred Toomey's refusal to list Sisson for referrals in Las Vegas violated Section 8(b)(1)(A) and (2) of the Act We agree with these findings Our dissenting colleague's conclusion to dismiss the complaint because Sisson relied only on his traveler status to gain referrals at a time he was not eligible as a traveler is misplaced We believe Sis- son's traveler status is immaterial under the circum- stances Although Sisson sought referrals on the basis of traveler status, his interest was in gaining referrals Nevertheless, the Respondent resisted re- ferring Sisson in any other capacity than as a trav- eler even though he had qualified for "A-listing" ' The Respondent has excepted to some of the judge's credibility find ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 In light of our finding that the Respondent violated Sec 8(b)(2) by refusing to list employee Sisson for referrals out of the Las Vegas hiring hall, we find it unnecessary to pass on the Respondent's exception to the judge's reliance on Nevada s right to work law as an additional ground for finding that violation priority referrals Thus, when Sisson spoke with Ward about the possibility of Sisson continuing to get referrals from the priority A-list in Los Angeles based on his years of experience there, Ward insist- ed that Sisson must first get reinstated in Omaha Nor did it matter that Sisson offered to get "rein- stated" in the Union rather than in the Omaha local To the contrary, as the judge found, "[w]hen Sisson asked Ward if he could instead get 'reinstat- ed [sic] in 433 [the Union],' Ward insisted that Sisson must get reinstated in Omaha" It is clear, therefore, that the Respondent at all times made Sisson's referral contingent on his satisfying his dues obligations in another local As the Union relied on the dues arrearage arising in another local to refuse to refer Sisson, the doctrine of Carpenters Local 740 (Tallman Constructors), 238 NLRB 159 (1978), is clearly applicable, and thus the Union violated the Act as found herein See also Iron Workers Local 118 (Pittsburgh Des Moines Steel), 257 NLRB 564 (1981) ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Iron Work- ers Union, Local 433, Las Vegas, Nevada, its offi- cers, agents, and representatives, shall take the action set forth in the Order MEMBER ZIMMERMAN, dissenting I would dismiss the complaint because the Union did not, as alleged, improperly refuse Lester Sisson the use of its hiring halls The facts, set forth fully in the judge's decision and summarized below, show the Union did nothing unlawful when it re- fused to refer Sisson as a traveler after it learned he no longer met the conditions for this status The Union is a party to a master labor agree- ment in Southern California and Southern Nevada through which it maintains exclusive hiring halls The agreement contains union-security language re- quiring current union members to maintain their membership and nonmembers to become members after an 8-day grace period As for those with memberships in other locals of its International, the Union permits them to pay travel service dues and become "travelers" rather than require them to switch their local membership, travelers may use the Union's hiring halls Sisson was a member of an Iron Workers local in Omaha, Nebraska, when he moved to an area within the Union's jurisdiction Sisson paid the Union's travel service dues and worked out of the Union's Los Angeles hiring hall as a traveler After having worked out of Los Angeles as a traveler for 272 NLRB No 83 IRON WORKERS LOCAL 433 531 nearly a year, Sisson failed to maintain his Nebras- ka dues and, in 1978, his home local suspended his ' membership Sisson did not tell the Union his home local membership had 14sed Instead he continued to hold himself out as a travelei in acquiring work through the Los Angeles hiring hall The contract grants "A-listing" for priority re- ferrals to anyone who has worked in the Union's jurisdiction for 3 years After Sisson had worked in the Union's jurisdiction for 3 years, the Los Ange- les business agent, Joe Ward, put Sisson on the A- list for priority referrals Sisson subsequently went to the Union's Las Vegas hiring hall and, based on his Los Angeles travel service dues receipt show- ing his A-status, asked to be placed on the Las Vegas A-list The Las Vegas business agent, Fred Toomey, asked to see Sisson's current membership dues receipt from his home local Although Sisson could not produce it, he did not tell Toomey that his membership had lapsed and that he no longer enjoyed membership in any other local of the Union's International Toomey did not then honor Sisson's request for placement on the Las Vegas A- list, and Sisson never asked Toomey for referrals as anything other than a traveler Toomey later learned that Sisson's home membership had lapsed and told Ward about Sisson's delinquency When Sisson later contacted Ward and inquired about his ability to get A-list referrals in Los Angeles, Ward told Sisson that Sisson should first get reinstated in his home local My colleagues, in agreement with the judge, find that the Union violated Section 8(b)(1)(A) and (2) by failing and refusing to grant Sisson use of its ex- clusive hiring halls without according him the stat- utory grace period after it learned of his dues de- linquency which arose under a different contract covering a different bargaining unit To reach this conclusion, they and the judge rely on Iron Work- ers Local 118 (Pittsburgh Des Moines Steel), 257 NLRB 564 (1981), and Carpenters Local 740 (Tall- man Constructors), 238 NLRB 159 (1978) Those cases hold that a union cannot deny employment to a member with a dues delinquency arising under a contract covering a different bargaining unit unless the union first gives that member the statutory grace period to cure the delinquency Because Sis- son's dues delinquency arose in a different bargain- ing unit (i e, one in Omaha), and because the Union did not give Sisson the grace period after it learned of his delinquency and before it refused to add his name to the A-list, they find that the Union improperly deprived him of the use of its hiring halls The flaw in this reasoning is that it addresses a different issue than that presented by the facts When Sisson moved to an area within the Union's jurisdiction he held himself out to the Union as a traveler He continued to present him- self as a traveler long after he allowed his home membership to lapse and during a period when clearly he was not eligible to use the hiring halls as a traveler Throughout this period Sisson gained a monetary advantage by maintaining the fiction that he satisfied the Union's traveler status, for about 2 years he paid only the travelers' service dues and avoided paying either the Union's dues or his home local's dues As Sisson continued to hold himself out as a traveler, one of the requirements he had to satisfy was that he have membership in another local When the Union learned Sisson did not satisfy that condition, it refused to put or keep him on the A- list until he regained good standing in the Omaha local In so doing, the Union was only requiring Sisson to fulfill the requirements necessary to be considered a traveler, so as to permit him to re- ceive the referrals in the status upon which he relied So long as Sisson sought referrals as a trav- eler the Union had a legitimate right to insist that Sisson qualify for that status For these reasons, the Tallman Constructors rationale concerning dues de- linquencies arising in separate bargaining units does not apply In this regard, it is important to note that Sisson did not request use of the hiring halls other than as a traveler 2 Likewise, Ward never told Sisson he could not continue to be referred out of the Los Angeles hall as a traveler He merely said Sisson could not retain his traveler status without curing the deficiency—a benefit Sisson had improperly received for the years in which he paid only the travel service dues, but failed to maintain his home membership Sisson could at any time have abandoned his Omaha local and sought union membership or, at least in Nevada, sought referral as a nontraveler Instead, he continued to seek referrals on the basis of trav- eler status 3 Thus, the Union never deprived Sisson 1 There is no question raised about the lawfulness of the Union's rules regarding travelers As a union may permit members of other locals to use its hinng halls on a traveler basis, it also may lawfully impose certain restrictions on those seeking traveler status This is true even in a right- to-work state such as Nevada 2 This is analogous to when a member becomes delinquent in paying union dues and the union refuses to refer him The Union's refusal to refer is lawful because the member has failed to satisfy a financial obliga lion the union could lawfully impose See Mayfair Coat & Suit Co, 140 NLRB 1333 (1963) 3 Sisson's offer to get "reinstated" in the Union does not warrant a contrary conclusion Since he was never a member of the Union, he could not be reinstated in that local His offer, therefore, would appear to have been nothing more than an ineffective attempt to satisfy his obliga lion to the Omaha local through the Union 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the use of its hiring halls on the basis that he did not cure a dues delinquency in a separate bargain- ing unit It merely refused to place him on its refer- ral lists on the basis of a traveler's status to which he was not entitled Accordingly, I would dismiss the complaint DECISION STATEMENT OF THE CASE TIMOTHY D NELSON, Administrative Law Judge Lester A Sisson, an individual, filed sets of original and amended unfair labor practice charges in each of the cases noted above against Iron Workers Union, Local 433 (Union) on respectively December 22, 1982, and Jan- uary 14, 1983 After investigating the charges, the Re- gional Director for Region 31 of the National Labor Re- lations Board (Board) issued an order consolidating cases and consolidated complaint and notice of hearing against the Union on February 9, 1983 The Union duly an- swered and I heard the consolidated matters in trial on June 14, 1983, at Las Vegas, Nevada The Issues In substance, the complaint alleges that the Union committed violations of Section 8(b)(2) and, derivatively, Section 8(b)(1)(A) of the National Labor Relations Act (Act) by refusing to register Sisson for referral from its A-list in its Las Vegas hiring hall and, later, by threaten- ing to remove, and by removing, Sisson's name from the job referral register maintained at its Los Angeles hall The Union acknowledges that it refused to accord Sisson A-list priority in Las Vegas, but claims that it was entitled to do so The Union denies threatening or acting to impair Sisson's referral status in Los Angeles FINDINGS OF FACT A Background The Union has territorial jurisdiction in an area con- sisting roughly of Southern California and Southern Nevada It maintains a main hiring hall in Los Angeles and at least two branch hiring halls, including one in Las Vegas At pertinent times a master labor agreement bound the Union and several of its sister organizations on the one hand, and employer-members of the California Ironworkers Employers Council (Council) on the other 1 The agreement provides for the maintenance by the Union of hiring halls to serve as essentially exclusive re- ferral sources for those employers when they need iron- workers on jobsites within the Union's jurisdiction The same labor agreement contains union-security lan- guage providing in substance that, as a condition of em- ployment, current members of the Union must maintain their membership and nonmembers must become mem- 1 The Council is itself composed of several California or Nevada based construction Industry employer organizations The Union admits and I find that the employer members of the Council purchase, in the ag- gregate more than $50 000 worth of goods or services directly from points outside the States in which they are situated and that they are em- ployers engaged in commerce within the meaning of the Act bers after an 8-day employment grace period 2 Despite these provisions it is the practice of the Union not to re- quire persons who are already members of another local union affiliated with the International body to switch their membership when they work as "travelers" within the jurisdiction of the Union Rather, jobseekers in that category are allowed to pay "travel service dues" to the Union in return for use of the referral services 3 Lester Sisson is a journeyman Ironworker who held membership in an Omaha Ironworkers local until his membership was suspended in 1978 by that local because of a dues arrearage At that time, Sisson had already been working out of the Union's Los Angeles hiring hall on a travel service dues basis for almost a year He did not inform the Union of his loss of good standing in the Omaha local and he continued from then on to be re- ferred through the Los Angeles hall as a traveler 4 In late 1981, Sisson was reclassified for dispatch priori- ty to the top A group by Joe Ward, the Union's Los An- geles agent, who noted at the time that Sission had worked within the Union's territorial jurisdiction "long enough" to so qualify Under the labor agreement, one qualifies for the A-list by having "worked at the trade for the past three years in the geographic area covered by this Agreement" The "geographic area" which the agreement covers consists of all of California and parts of Nevada, including Las Vegas Sisson then continued until September 1982 5 to receive A-list dispatches through the Los Angeles hall and con- tinued in the deception that he was a traveler with local membership in good standing elsewhere The Union con- tinued to require only that Sisson pay monthly travel service dues On September 1, Sisson made a $10 travel service dues payment in Los Angeles and obtained from the Union's clerk the standard receipt, containing the notation that he was "Paid thru 10-2-82" The receipt also contained, as usual, a distinctive, stamped "A," denoting A-list re- ferral status B Alleged Violations in Las Vegas Sometime after that, Sisson and his family left the motel where they had been staying in Los Angeles and drove to Las Vegas On September 14, he appeared at the Union's hiring hall and, although contextual details are disputed, he spoke with the Union's Las Vegas agent, Fred Toomey, and with the office secretary, Nancy Huckeba The three witnesses agree on these material points Sisson asked to have his name placed on the A- 2 More specifically, the master labor agreement binds several Iron workers locals as well as an Ironworkers District Council entity These entities are collectively referred to in the agreement as the Union and the union security language specifies that membership must be maintained or acquired in the appropnate local union of the Union 2 These, and other general practices described elsewhere are not under challenge by the General Counsel and were not litigated in any detail 4 It was in Sisson's pecuniary interest to do this He saved himself a $500 initiation fee which would have been required if he had simply Joined the Union, and he saved himself an even greater payment which would have been required to re initiate" himself into his home local in Omaha 5 All dates below are in 1982 unless otherwise specified IRON WORKERS LOCAL 433 533 list and, at some point, produced his most recent travel service dues receipt reflecting his A-list status At some point Toomey asked Sisson to produce a current mem- bership dues receipt from his home local Sisson then fumbled and made some pretense that he had left it else- where Sisson withdrew shortly after that without press- ing the matter Sisson's name was not placed on the A-list that day nor thereafter The portion of the complaint dealing with Las Vegas violations focuses on the Union's failure to so classify and refer Sisson beginning on September 14, and the Union's motives in that instance are significant, if not of the essence 6 For this reason, I merely note summarily that there were additional contacts between Sisson and Toomey Certain details of Sisson's account of those meetings, if credited, would simply point in the same di- rection as the findings I make below linked to substantial admissions by the Union's agents I therefore refrain from detailed findings and an analysis of the points of harmony and disharmony between Sisson and Toomey Rather, I turn directly to Toomey's own explanation of his motives in refusing to place Sisson on the A-list in Las Vegas on September 14 and thereafter Toomey readily acknowledged that he told Sisson when they met on September 14 that Sisson would have to have a "union receipt paid up to match this [i e, the current travel service dues receipt which Sisson had pro- duced] " It is worth noting here that Toomey was not merely checking to see if Sisson were a paid-up member of the Union Rather, the production by Sisson of the traveler's receipt put Toomey on notice, as he admits:1 that Sisson was claiming an affiliation with another local union In the same connection, Toomey admits that, as a matter of his standard policy, "if [the applicant is] paid up, regardless of what local he is in, I'd put him on the A list" This, Toomey explained, is why he asked Sisson to "show me your [local union dues] receipt so I could put you on the [A] list Then [if] he's not paid up I'd tell him to get paid up" In addition, Toomey admits telling Sisson about a week after September 14 that Toomey "needed [Sisson's] paid up dues receipt [T]here's no problem getting on the 'A' list if you come up with that" Toomey elsewhere gave general testimony suggesting that he asks for a local union dues receipt from travelers as a form of identification In another vein, Toomey claimed, in substance, that local residency was a condi- tion for placement on the A-list These latter claims by Toomey were half-hearted in tone, self-contradictory, and cannot be reconciled with his quoted statements above in which he unguardedly admitted that "paid-up membership" in some local affiliate of the Iron Workers was the only condition which must be satisfied before Toomey would place the applicant's name on the A-list, and that it was Sisson's failure to produce evidence that he was paid up in his home local which disqualified Sisson for A-list placement in Las Vegas Moreover, I conclude that the claim that "residency" in Las Vegas was an additional condition for A-list 6 See, e g, Teamsters Local 357 v NLRB, 365 U S 667, 675 (1961) 7 Tr 176 placement is without contractual support and is, essen- tially, an afterthought I note first in this regard that the labor agreement nowhere makes local residency a condi- tion for A-list placement The only reference to "resi- dency" is found in section 5H(2), which states Whenever a local Union maintains a branch hiring hall, the individual employer shall call the main hiring hall for workmen whenever the branch hiring hall's out-of-work list is exhausted of all workmen who are bona fide residents in the territo- rial area designated for the branch hiring hall Workmen shall not be registered on more than one out-of-work list at any one time It is clear, however, that the quoted provision has noth- ing to do with qualification for A-list placement And, from a reading of the agreement as a whole and from other explanations of the Union's agents (both Toomey and Ward), I conclude that the quoted provision is in- tended to deter registrants in a main hiring hall from changing their registry to a branch hall simply to get a jump over their earlier registered fellows in the main hall on jobs serviced by the branch hall I also glean from Toomey's and Ward's somewhat vague testimony that the notion of "residency" will have application when it comes to determining when a contractor will have to make subsistence premium payments to workers dis- patched from a hiring hall other than the one which serves the contractor's area In addition the "residency" provision in section 5H(2) is not restricted to A-list registrants, but patently applies to workers registered in any referral category The same may be said regarding the use of notions of "residency" for purposes of determining entitlement to subsistence premiums The union on brief says (p ,3) that "[1]t is unrebutted that the Union has consistently enforced this [sec 5H(2) residency] provision by applying a six-month test" This is not so The record contains a number of inconclusive and contradictory statements by Toomey regarding which factors influence his admitted exercise of discre- tion when he determines in a given instance whether a jobseeker is to be deemed a Las Vegas resident The overall impression which was left was that there were no hard-and-fast rules in this area and that notions of "resi- dency" did not even come into play when it came to de- cisions about registering workmen who had A-list status in the Los Angeles hiring hall Because I find that Toomey was not, in fact, motivat- ed by any considerations of residency when he refused to place Sisson on the A-list in Las Vegas, I do not ad- dress the General Counsel's additional argument that Sisson was properly classifiable as a Las Vegas resident on September 14 and thereafter C Alleged Violations in Los Angeles on November 4 It is clear from Toomey's and Sisson's testimony about their conversations on the subject of Sisson's local dues receipt that Toomey suspected as early as September 14 that Sisson was not paid up in his own home local This suspicion was later confirmed when Toomey called Sis- 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD son's home local in Omaha and learned that Sisson had been suspended for dues nonpayment Earlier Sisson admittedly had engaged in some dishon- est shenanigans with an insurance check by negotiating it and then obtaining another one by telling the insurance company that he had lost the first one He had negotiat- ed the original check in a Las Vegas bar near the union hall Toomey claimed he called the Omaha local about Sisson in an effort to trace Sisson's current whereabouts, and only after learning from the neighboring bar owner that Sisson's insurance check had bounced It was only incidentally, says Toomey, that he learned from the Omaha local that Sisson was not in good standing there Whether Toomey's explanation of why he called the Omaha local is true need not be decided What is perti- nent about Toomey's contact with Omaha is that Toomey communicated the results of it to Ward, Too- mey's superior, in Los Angeles, telling Ward that Sisson had been passing himself off for years as a paid-up member of a sister local Ward was armed with this knowledge when Sisson called him in Los Angeles on November 4 Sisson had earlier moved on to St George, Utah, where he had found nonunion work He was still hoping, however, that he could be dispatched to hotel construction work in Las Vegas and his purpose in calling Ward on No- vember 4 was to get the latter's assistance in persuading Toomey to register Sisson on the A-list in Las Vegas It is agreed by Sisson and Ward that the subject of Sis- son's status in Las Vegas was discussed inconclusively and that the discussion then turned somehow to Sisson's potential referral status were he to return to Los Ange- les Sisson states about this conversation, inter aim, that Ward complained that Sisson had embarrassed the Los Angeles hall by not being paid up to his home local while being referred in the past through the Los Angeles hall from the A-list Sisson claims that he asked Ward if he could "still work on the 'A' list in Los Angeles," and that Ward said, "No," explaining that Sisson would have to "be reinstated in Omaha" When Sisson asked Ward if he could instead get "reinstated [sic] in 433 [the Union]," Ward insisted that Sisson must get reinstated in Omaha, but promised to restore Sisson to his "peg list standing in 433," if Sisson were to do so Ward's version differs from Sisson's in these particu- lars Ward states that he told Sisson, "You have a couple of problems You haven't become a resident of Nevada8 and you have a problem that we're going to have to clean up, which is your home local You've gone delinquent in your home local" Ward agrees that Sisson asked if he could be restored to his "old position on the A-list" if Sisson were to return to Los Angeles 8 I note in passing that the supposed residency requirement testified to by Toomey as a Las Vegas residency rule became, in Ward's testimo ny, a 'Nevada residency rule This is futher indication in my view that the residency" defense to this case was concocted and that there has never been (in Las Vegas at least) any uniformly applied local residency requirement for A-list placement I further have doubts that Ward ever mentioned the residency issue to Sisson on November 4, but, even if he did, this would not change my view that It was an afterthought, without motivating significance, in the Union's treatment of Sisson in complained of instances I therefore do not comment further on this feature of Ward's testimony Ward testified that he told Sisson that he could do this When pressed on cross-examination, Ward insisted that his reference to getting the matter of delinquencies in Sisson's home local cleaned up was not related to, nor a condition of, his agreement to restore Sisson to his former position on the Los Angeles A-list Contrary to Sisson, Ward's testimony suggests, at most, that any reference by Ward to Sisson's need to get his delinquency in Omaha cleared up was not expressly linked to Sisson's eligibility for a return to his old place on the A-list in Los Angeles Ward admits, however, that he said that the delinquency matter in Omaha would have to be disposed of in order for Sisson to get on the A-list in Las Vegas In these circumstances, it is difficult to conclude that Ward was prepared to let Sisson return to his old position on the Los Angeles list without "cleaning up" his Omaha delinquency If this were the case (and Ward sought to leave that impression), then I would have to find that Ward was prepared to let his subordinate, Toomey, impose a condition to A-list regis- tration in Las Vegas which Ward was not himself pre- pared to impose on Sisson for purposes of A-list registra- tion in Los Angeles Since this is not plausible, I con- clude that Ward effectively communicated to Sisson in their conversation that while he would be permitted to return to his old place on the Los Angeles list Sisson must first restore himself to good standing in Omaha That is, I credit the substance of Sisson's account over Ward's regarding material portions of the November 4 conversation D Analysis For reasons set forth below I conclude that the actions of the Union through Toomey in refusing on and after September 14 to register and give referral consideration to Sisson from its A-list in Las Vegas violated Section 8(b)(2) of the Act, and that the remarks made by Ward over the telephone to Sisson on November 4 regarding Sisson's potential status in Los Angeles independently violated Section 8(b)(1)(A) of the Act, but that they do not, per se, establish an 8(b)(2) violation Nevada has a "right-to-work" law, making it unlawful , to enforce any union-security clause within that State See Section 14 (b) of the Act and, e g, Ironworkers Local 118 (Pittsburgh Des Moines Steel), 257 NLRB 564, 565 fn 5 (1981) This alone seems a sufficient basis for finding that the Union violated the Act by failing to register Sisson on the A-list in Los Vegas For even if I were to find that the Union was otherwise privileged to require Sisson to clean up his delinquency in Omaha in order to become placed on the A-list in Las Vegas (and it was not so privileged, as I discuss below), it is plain that eli- gibility for dispatch to jobs from the Las Vegas hall, which services only Nevada jobs, could not lawfully be affected by "membership" considerations of any type whatsoever Pittsburgh Des Moines Steel Co, supra at 467 fn 7 Since I have found that Toomey was motivated by such considerations in denying A-list registry to Sisson, it follows that Section 8(b)(2) was violated in this in- stance IRON WORKERS LOCAL 433 535 In Pittsburgh Des Moines Steel the Board found that Local 118 violated the Act by refusing to refer Butler to a job within one contract unit because Butler was delin- quent in union-security obligations arising from a Local 118 labor agreement covering another unit And the Board expressly refrained from deciding the refusal-to- refer Issue on any alternative right-to-work theory The Board's avoidance of the right-to-work theory as the basis for finding a refusal-to-refer violation is explained in terms of the complicating fact that Local 118's refusal to refer Butler occurred in California, although in con- nection with a Nevada job (Id at 257 fn 8) At footnote 7, however, the Board used a right-to-work analysis for purposes of determining the appropriate remedy, clearly holding that Nevada's right-to-work law would have precluded the Union from enforcing whatever union-se- curity rights it 'might otherwise have had with respect to Butler's continuing on the Nevada job after the passage of a grace period It follows that a violation of Section 8(b)(2) may be grounded here solely on a right-to-work theory 9 9 The invocation of a right-to work theory by the General Counsel in connection with the refusal to register Sisson on the A-list in Las Vegas appears for the first time in his posttnal brief The Union subsequently filed a motion to strike the General Counsel's brief because It contains theories of violation not encompassed by the pleadings I have not found it necessary to consider any of the General Counsel's theories which the Union would label afterthoughts except for the right to work theory As to that theory, the Union argues that it is a total change in position, an effort to amend the complaint without actually lodging a formal request and in derogation of the obligation owned by the General Counsel to the public to litigate cases in a straightfoward and fair manner In addition to having me "strike' the General Counsel's brief, the Union would have me admonish the General Counsel for shifting ground From the remarks of the General Counsel at trial, one could infer that his office had not considered the right to work implications of the Union s conduct in Las Vegas at any time before the closing of the trial record And It may therefore be true that the right to work theory is a product of afterthought on the General Counsel s part It is further "well settled that a theory which is not encompassed by the complaint not lin gated during the hearing, and disavowed by the General Counsel cannot provide the basis for the decision of an Administrative Law Judge or the Board Kraft Foods, 251 NLRB 598 fn 4 (1980) See also Camay Drilling Co 254 NLRB 239, 240 fn 9 (1981) But the General Counsel certainly never disavowed a right to work theory Moreover, where, as here, the complaint identified with specific' ty the conduct of the Union which was being challenged (1 e the refusal, linked to 'membership" considerations, to register Sisson on the Las Vegas A-list), it is difficult to conclude that a right to work theory would not be "encompassed by the complaint Kraft Foods, supra And even if one assumed, arguendo, that the complaint did not 'encompass" a right to work theory, Respondent would be hard pressed to identify how it would have litigated differently had it been on plain notice of a right to work theory in connection with the alleged Las Vegas violation This is the ultimate practical test for determining whether a respondent s due process rights have been satisfied in circumstances such as these E g Free Flow Packaging Corp v NLRB, 566 F 2d 1124, 1131 (9th Cir 1978) See also NLRB v Iron Workers Local 433, 600 F 2d 770, 776 (9th Cir 1979), cert denied 445 US 915 (1980) Cf NLRB v Complas Industries, 714 F 2d 729 (7th Cir 1983) It is of course desirable for a public prosecutor to be candid and forth coming regarding what It is about a respondent s conduct that is being challenged And it may be even that the matter never would 'have been brought to tnal, but would have been settled, had the General Counsel identified at an earlier stage that the Union s conduct in Las Vegas impli cated Nevada s right to work laws But where the Union has not even suggested that it would have sought to litigate these matters differently had the right to work theory been plainly and timely set forth by the General Counsel, I find the Union s motion to be mentless and therefore I deny it Since California is not a right-to-work state, the fore- going analysis will not, hoWever, dispose of the alleged violation flowing from Ward's statement on November 4 to Sisson that he would have to cure his delinquency in Omaha before being reinstated to his old position on the A-list in Los Angeles And, although it may be superflu- ous in the case of the Las Vegas violation, there is an- other, commonly applicable, basis for concluding that the actions of the Union's agents in both Los Angeles and Las Vegas violated the Act, as I discuss next I have found that Sisson's failure to be a paid-up member of his home local in Omaha caused Toomey not to register Sisson on the A-list in Las Vegas, and that Ward told Sisson later that the Omaha delinquency would have to be cleaned up for Sisson to be restored to his former status on the Los Angeles A-list In both cases, a violation plainly flows from the doctrine enunci- ated in, inter aim, Carpenters Local 740 (Tallman Con- structors), 238 NLRB 159 (1979) See also Pittsburgh Des Moines Steel, supra The cited cases apply the doctrine, as stated in Pittsburgh Des Moines Steel, supra at 566, that [A] member who had , become delinquent in dues under a contract covering one bargaining unit cannot be denied employment under a contract cov- ering a second bargaining unit without first afford- ing him the statutory grace period within which to become current in his or her dues As applied in Pittsburgh Des Moines Steel, this resulted in the Board's holding that Butler could not be required by Local 118 to clean up a dues delinquency arising out of employment in one unit as a condition of referral by Local 118 to an employer in a different contract unit "Rather, his rights were those of a new employee enti- tled to work for the grace period before a valid union-security clause could be invoked against him be- cause of his dues arrearages " Id at 567 We do not know from the record whether Sisson ever owed a duty to become or remain a member of the Omaha local as a result of some union-security clause which he may have worked under in the Omaha area We do know, however, that any such obligation as may have existed for Sisson to join and pay dues to the Omaha local did not arise by virtue of his employment in California under the labor agreement which governed that area Accordingly at the very least, under the legal doctrine quoted above, the most that the Union could do to "enforce" Sisson's supposed obligation to pay dues to the Omaha local would be to properly register and refer him and to allow him at least the statutory grace period on a job covered by the governing labor agreement before seeking to ,affect his job tenure Pittsburgh Des Moines Steel, supra 1° '° This must be seen as hypothetical comment only, since it is not at all clear from the cited cases that a union may ever seek at any stage to impair an employee s employment or prospects for employment as a means of enforcing a union security obligation arising from employment in a different unit and under a contract between a different local of the same international union 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As to Ward's November 4 remarks, more subtle ques- tions are raised about their violative quality Clearly, based on the foregoing analysis, Ward could not lawfully have conditioned Sisson's eligibility for registration on the Los Angeles A-list on Sisson's cleaning up his Omaha delinquency But, as the Union correctly points out, Sisson was no longer on the Los Angeles register at all when Ward made the statements on November 4 which I find to be violative And it is therefore clear, contrary to the complaint allegation, that Ward did not "remove" Sisson's name from the Los Angeles list Sisson had done that months earlier by leaving Los An- geles and seeking referral in Las Vegas 11 Arguably, therefore, the most that could be said about Ward's November 4 remarks is that they unlawfully re- strained and coerced Sisson in violation of Section 8(b)(1)(A) of the Act but did not constitute a prohibited "cause or attempt to cause" employment discrimination in violation of Section 8(b)(2) of the Act Anticipating this argument, the General Counsel invokes the "futility" doctrine, i e, that Ward's remarks made it futile for Sisson to attempt to reregister in Los Angeles on the A- list unless he were prepared to comply with an unlawful condition, that he clean-up his arrearage with the Omaha Local The General Counsel cites for this proposition a case arising under Section 8(a)(5) of the Act, Ciba-Geigy Pharmaceuticals, 264 NLRB 1013 (1982) The case is not on point A more pertinent case is Laborers Local 38 (Hancock-Northwest, J V), 247 NLRB 1250 (1980) There, the Board found that the union had engaged in wholesale violations of the Act in its discriminatory op- eration of the hiring hall As to two individuals, Warren and Smith, however, the Board found that they had not requested referrals and, therefore, "in the absence of a request for a work referral from the hiring hall, there can be no finding that Respondent Local discriminatorily refused to refer these employees to work " Id at 1251 The Board adopted a different approach, however, in the case of employee Westmoreland, whose discharge from a jobsite had just been unlawfully procured by the union In the light of this fact and because Westmoreland had been the target of earlier unlawful threats to dis- criminate by the union, the Board found that it would have been a futility for Westmoreland to return to the hiring hall to request a referral on the day after he had been unlawfully discharged at the union's demand In those limited circumstances, therefore, the Board found that Westmoreland was discriminatorily denied referrals after his unlawful discharge even absent any request by him to receive referrals Id at 1251, and authorities cited at fn 7 Hancock-Northwest, supra, is a useful guide for deter- mining whether Sisson was unlawfully discriminated against with respect to registration and referrals from Los Angeles after November 4, but it must be acknowl- edged that the result is by no means obvious Clearly, " We do not know from this record whether Stsson's name was phys wally stricken from the Los Angeles list when he left there We do know from the above-quoted provisions of sec 5H(2) of the labor agreement that an applicant cannot be registered on two lists at once I therefore conclude that Sisson's effort to register in Las Vegas was tantamount to a withdrawal of his name from referral consideration in Los Angeles the Board's treatment of Warren and Smith reflects that the Board will not presume that an individual who never requested referrals suffered discrimination Just as clear- ly, focusing on the Board's invocation of the futility doc- trine in Westmoreland's case, the Board will not rule out a finding of discrimination simply because an employee has failed to request a referral If any rule may be dis- tilled from the varying treatments of certain individuals by the Board in Hancock-Northwest, however, it would appear to be this Before the futility doctrine may be in- voked to excuse the absence of a specific referral request by an employee, there must be a reasonable circumstan- tial basis for concluding that the employee in question would have sought a referral from the hiring hall had it not been for the union's unlawful conduct Following this line of reasoning, I do not believe that this record would permit me to find that Sisson would have returned to the Los Angeles hiring hall to seek re- ferrals had it not been for Ward's unlawful remarks on November 4 Indeed, he had left Los Angeles originally because referrals were slow And, as of November 4, Sis- son's admitted purpose in making contact with Ward was simply to see if Ward had been able to make any head- way with Toomey in obtaining registration for Sisson on the Las Vegas A-list Under these circumstances, I am inclined to view Sisson's inquiry to Ward on November 4 about his potential status were he to return to Los An- geles as having a hypothetical quality That is, I infer that Sisson was simply trying to learn where he might stand in Los Angeles if and when he had exhausted other, more likely, prospects elsewhere, and Sisson was not thereby indicating any present desire to return to Los Angeles to seek work I therefore conclude that Ward's November 4 remarks did not preclude Sisson from doing that which he likely would have done other- wise and that it would be improper to view Ward's re- marks as sufficient alone to ground a finding of an 8(b)(2) violation in Los Angeles 12 CONCLUSIONS OF LAW 1 The Union is a labor organization within the mean- ing of Section 2(5) of the Act 2 Jurisdiction of the Board over the complained-of- matters properly derives from the Union's conduct af- fecting employees' access to employment with employer- members of the Council, whose activities, at least in the aggregate, affect commerce between and among the States and satisfy the Board's discretionary minimum dollar amounts applicable to nonretail operations 12 See in this regard an analogous rejection of the Hancock-Northwest futility doctrine in Teamsters Local 17 (Universal Studios) 251 NLRB 1248, 1259 (1980) Moreover, from a remedial standpoint, it would be a seeming windfall to Sisson to prescribe an 8(b)(2) backpay remedy relat ed to a supposed discrimination against him by Ward In Los Angeles on and after November 4 And there would be very real difficulties for a compliance officer in determining the measure of Sisson's potential back pay were It found that Sisson was being simultaneously discriminated against in two separate hiring halls in the period after November 4 par t/cularly where, under the labor agreement, he could not have maintained simultaneous registry in both Los Angeles and Las Vegas The General Counsel does not address these points IRON WORKERS LOCAL 433 537 3 By refusing on and after September 14, 1982, to reg- ister Lester A Sisson on its A-list in its Las Vegas, Nevada branch office, thereby necessarily denying him opportunities for work referrals through that office," all because Sisson was in arrears in a dues obligation to a sister local union not a party to the contractual bargain- ing unit involved, the Union, through its agent Fred Toomey, has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(b)(2) and, de- rivatively, Section 8(b)(1)(A) of the Act 4 By telling Sisson on November 4, 1982, that he must correct his dues arrearage with a sister local not a party to the contractual bargaining unit involved as a condition of registration and referral from either the Union's Los Angeles or Las Vegas A-list, the Union, through its agent Joe Ward, has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act THE REMEDY Having found that the Union violated the Act as de- tailed above, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action, including that it make Sisson whole, with inter- est," for its failure properly to register him on the A- list in Las Vegas on and after September 14, 1982, and immediately notify him that he is eligible, at his option, for registration on the A-list in either Las Vegas or Los Angeles, without regard to any dues he may owe to an- other local not a party to the bargaining unit involved herein I shall further recommend that the Union be re- quired to post remedial notices at its Las Vegas and Los Angeles hiring halls On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The Respondent, Iron Workers Union, Local 433, Las Vegas, Nevada, its officers, agents, and representatives, shall 1 Cease and desist from (a) Refusing, or threatening to refuse, to register and refer Lester A Sisson on and from A-lists maintained in its hiring halls in Las Vegas, Nevada, and Los Angeles, California because Sisson is in bad standing linked to dues arrearages with a sister local union which is not a party to the bargaining unit in which Sisson seeks work referrals 13 I do not decide whether and if so, when Sisson might have ob tamed work had he been properly registered in Las Vegas on the A-list This is a matter for the compliance stage 14 All amounts necessary to satisfy the Union's backpay and interest obligations, if any, under the recommended Order shall be computed and derived in accordance with policies and formulas set forth in Isis Plumb- ing Co, 138 NLRB 716 (1962), F W Woolworth Co, 90 NLRB 289 (1950), and Florida Steel Corp, 231 NLRB 657 (1977) 15 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 (b) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the purposes and policies of the Act (a) Immediately notify Lester A Sisson in writing that he is entitled at his option to register and be referred on and from A-lists maintained in the Union's Los Angeles and Las Vegas hiring halls without regard to his failure to pay dues to and remain in good standing with his home local (b) Consistent with the discussion above in the section captioned "The Remedy," make Lester A Sisson whole for any loss of pay he may have suffered by reason of the discrimination against him in Las Vegas from the date of the Union's unlawful conduct until he obtains the employment he would have had were it not for such conduct, or substantially equivalent employment else- where (c) Post at its Las Vegas and Los Angeles hiring halls copies of the attached notice marked "Appendix "16 Copies of the notice, on forms provided by the Regional Director for Region 31, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply 16 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading Posted by Order of the Na tonal Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation al Labor Relations Board" APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all parties had the chance to offer evidence and make arguments, the National Labor Rela- tions Board had found that we violated employee rights when we refused to let Lester Sisson register on our A- list in Las Vegas and threatened not to register him in Los Angeles either because he owed dues to a sister union local which is not a party to the union contract which we are bound to The Board has ordered us to stop violating employee rights and to post this notice and honor what it says The National Labor Relations Act gives employees the right to form, join, or assist unions, to be represented in collective bargaining with their employers by agents freely chosen by a majority of them, to engage in other 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD group activities for mutual aid and protection on the job, and to refrain from any of the foregoing activities except in States which permit enforcement of union contracts which require employees to become or remain union members after a grace period (California allows those contracts, Nevada does not allow enforcement of them ) WE WILL NOT refuse, or threaten to refuse, to register and refer Lester Sisson from A-lists in Los Angeles or Las Vegas because of any dues Sisson may owe to an- other local union arising out of his employment in a dif- ferent bargaining unit WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed by the Act WE WILL make Lester Sisson whole, with interest, for wages he may have lost as a result of our failure on and after September 14, 1982, to permit him to register on and be referred from the A-list maintained in our Las Vegas hiring hall IRON WORKERS UNION, LOCAL 433