International Brotherhood of Boilmakers

INTERNATIONAL BROTHERHOOD OF BOILERMAKERS International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, Local Union No. 154, AFL-CIO (Western Pennsylvania Service Contractors Association and Boilermaker Employers Association of Western Pennsylvania Area) and Wayne H. Boring and Gary W. Boring and Waldron L. Sarambo and Galen L. Boring and Edward J. Kardos and Vernon L. Boring. Cases 6-CB 4349, 6-CB-4350, 6-CB-4354, 6-CB-4371, 6- CB-4397, and 6-CB-4419 December 15, 1980 DECISION AND ORDER By CHAIRMAN FANNING AND MEMBERS JENKINS ANI) PENELI.O On June 13, 1980, Administrative Law Judge David S. Davidson issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed exceptions, a supporting brief, and a brief in answer to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative l.aw Judge and to adopt his recommended Order.2 i Respondent has requested oral argument Ihls request is herebh denied as the record, the exceptions, and the briefs aequalels present the issues and the positions f the parties Respondent has excepted o.,ceriain credibility findings made b the Administrative Law Judge It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidene c n- vinces us that the resolutions are incorrect Standard Dr lall Products. Inc., 91 NLRB 544 (1951t). enfd 1l8 F.2d 362 t3d Cir 1951) We have carefully examined the record and find no hbasis fr reversing his finlings. 2 The General Counsel has excepted to the Admnillstratise l.aw Judge's refusal to adopt the backpa. forlmula utlhzed in the Irowlsrkern series of cases cited at fn 17 of the attached Decisionl The Admlnistra- tive Law Judge found, and we agree, that it is unwise tinder the circum- stances of this case to determine at this stage lof the proceedings the measure of damages to be applied here tlowseer, wse empha,sie that nothing herein should be construed as precluding the (;cnieral Counsel from reasserting his arguments with regard to the appropriate hackpay formula in the compliance stage of these prloceedings The Admininstrative Law Judge proxialed that backpa> was to be computed in the manner set forth in I' W o/ixworrth (Compalt. 90 NLRB 289 (1950). In deferring the determination of the appriate measure of damages to the compliance stage of this priceeding. we do not pass on the question of the appliabilit), if any, that IVsdi,*rth might have to the appropriate backpay formula. The Administrative Law Judge found, and we agree, that Respondlent unlawfully refused to accept a grievance which W'aldron Sarambo sought to file. The Administrative Law Judge provided no affirmative remedy for this violation We finld it unnecessary to provide in affirmnative Respondent contends that the Administrative Law Judge erred in recommending that Respond- ent be required to make whole all nonmember ap- plicants for referral rather than limiting the make- whole order to those individuals who filed charges. In this regard, Respondent argues that neither the unfair labor practice charges filed by the Charging Parties nor the consolidated complaint issued by the General Counsel provided adequate notice that Respondent would be held liable for any unlawful conduct by it toward persons other than the named discriminatees. Respondent further argues that Sec- tion 10(b)3 bars any remedy for those individuals included in the backpay order who did not file charges, and that the provision of backpay for such unnamed discriminatees in effect transforms the in- stant proceeding into a class action in contraven- tion of the statute. Moreover Respondent argues that to permit the litigation in the compliance stage of backpay claims for persons whose status was not litigated in the original hearing bifurcates the hear- ing of the unfair labor practice charges in a manner inconsistent with the statute. Finally, Respondent contends that inclusion of unnamed discriminatees in the make-whole order will deprive Respondent of a full and fair hearing, raising "fundamental due process issues." For the reasons set forth below, we find no merit in Respondent's contentions. The amended charges and consolidated com- plaint in this proceeding allege that "employees who are not members" and "applicants for employ- ment who were not members," respectively, suf- fered discrimination. Thus, contrary to Respond- ent's claim, these documents put Respondent on notice that nonmember applicants in general, and not merely the Charging Parties, were alleged to have suffered discrimination. Further, the nature of the evidence adduced at the hearing, which was held over a 2-month span, again put Respondent on notice that the General Counsel was alleging that Respondent's referral system was structured so that it inherently favored members over nonmembers who sought referral through Respondent's hiring hall. Throughout the hearing, Respondent had every opportunity to address the allegations that the structure of its referral system resulted in dis- criminatory treatment of nonmember applicants generally. While Respondent introduced evidence concerning the operation of its hiring hall, the Ad- ministrative Law Judge found, and we agree, that this evidence was insufficient to rebut the evidence remnedy fr this violation, as the record indicates that the subject f Sar- amhbo's grievance was fully remedied in another frun a Sec I(Xb) provides, inter aha , that "n cmplaint shall issue based upon any tllfair labor practice occurring more than six mths prior to the filing of the charge with the Board 253 NLRB No. 98 747 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of systematic discrimination introduced by the General Counsel. With that discrimination having been established, the issue remaining for compli- ance is not whether Respondent discriminated against qualified nonmember applicants, but rather the manner in which such discrimination affected each such applicant. Thus, the Administrative Law Judge's recommended Order does not bifurcate the hearing of alleged unfair labor practices and is con- sistent with the Board's practice of deferring con- sideration of certain matters of remedy to the com- pliance stage of our proceedings. 4 Finally, a reme- dial order running to nonmember applicants is not barred by Section 10(b), since the charges filed en- compassed allegations concerning other non- member applicants in addition to the Charging Par- ties. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, Local Union No. 154, AFL-CIO, Pittsburgh, Pennsylvania, its officers, agents, and representatives, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. 4 We find that the instant case is distinguishable from Local No. 851. International Longshoremens Association, AFL-CIO (West Gulf Maritime Association), 194 NLRB 1027 (1972), cited by the Administrative Law Judge In that case, the Board did not adopt an administrative law judge's recommended Order insofar as it provided backpa for "all other applicants for employment" in addition to the nanled discriminatees. The Board found that the union had discriminated against nonmembers through its classification system for referrals, but specifically ioted that there was no evidence that persons other than the named discrimiliatees attempted to avail themselves of the classification system. Here, by con trast, the General Counsel not only established that nonmember appli- cants as a class unlawfully were refised referral, but further introduced specific evidence--including, inter alia, entries in the "out-of-work hoobk" and reports of payments made on behalf of employees into contractual benefit funds-which identifies additional nonmember applicants other than the Charging Parties who sought referral APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause, attempt to cause, or threaten to cause any of the employer-mem- bers of the Western Pennsylvania Service Con- tractors Association and Boilermaker Employ- ers Association of Western Pennsylvania, or any other employer, to discriminate against any employee in violation of Section 8(a)(3) of the National Labor Relations Act, as amended, because of their lack of membership in our Union, because they refuse to sign checkoff authorizations, because they file charges with the National Labor Relations Board against us, or for other arbitrary or invidious reasons. WE WILL NOT maintain or operate our ex- clusive job referral system without the use of objective criteria or standards or in a discrimi- natory manner. WE WILL NOT tell any employee that access to the grievance procedure contained in our agreements is restricted to our members and WE WILL NOT refuse to accept grievances from nonmembers. WE WILL NOT fail or refuse to furnish infor- mation relating to the operation of our hiring hall to employees because they are non- members or because they have filed charges against us. WE WILL NOT in any other manner restrain or coerce employees or applicants for employ- ment in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL keep and retain for a period of 2 years permanent written records of our hiring and referral operations which will be adequate to disclose fully the basis on which each refer- ral is made and, upon request of the Regional Director for Region 6 of the National Labor Relations Board, or his agents, make available for inspection, at all reasonable times, any re- cords relating in any way to the hiring and re- ferral system. WE WILL submit four quarterly reports to the Regional Director, due 10 days after the close of each calendar quarter after the issu- ance of the Board's Decision and Order, con- cerning the employment of nonmember appli- cants. Such reports shall indicate the date and number of job applications made to us, the date and number of our actual job referrals, and length of such employment during such quarter. WE WILL place the referral registers, for a period of 2 years, on a table or ledge in our hiring hall for easy access and inspection by the applicants as a matter of right, upon the completion of each day's entries in such regis- ters. WE WI.1. make whole each nonmember ap- plicant for any loss of earnings he may have suffered by reason of our discrimination 748 INTERNATIONAL BROTHERHOOD OF BOILERMAKERS against him since October 10, 1977, with inter- est. INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS, BLACKSMITHS, FORGERS AND HELP- ERS, LOCAL UNION NO. 154, AFL- CIO DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON, Administrative Law Judge: The original charges in these consolidated cases were filed on April 10, 14, and 28, May 31, and June 14, 1978. The consolidated complaint issued on August 31, 1978, and was thereafter amended on January 8, 1979, and at the hearing. In its answer Respondent denies commission of any unfair labor practices. A hearing was held before me in Pittsburgh, Pennsyl- vania, on February 6-9 and April 10, 1979. At the con- clusion of the hearing the parties were given leave to file briefs which have been received from the General Coun- sel and Respondent.' The issues raised by the pleadings and the evidence are: 1. Whether Respondent discriminated against non- members in making referrals for employment through its exclusive hiring hall. 2. Whether Respondent refused to accept a grievance because the grievant was not a member of Respondent. 3. Whether Respondent denied nonmembers the op- portunity to sign the out-of-work list. 4. Whether Respondent threatened to refer non- members to more onerous work, to work distant from their homes, or to no work because they refused to ex- ecute checkoff authorizations and/or because they had filed charges with the Board. 5. Whether Respondent referred nonmembers to more onerous work because they refused to file checkoff au- thorizations and/or file charges with the Board. 6. Whether Respondent unlawfully refused to provide information about the operation of its hiring hall to non- members on request. Upon the entire record in this case and from my obser- vation of the witnesses and their demeanor I make the following: The parties were also given leave to file reply briefs dealing with any statistical analyses of documentary evidence which were submitted with the initial briefs. A reply brief has been received from the General Coun- sel. The General Counsel also filed a motion to correct the transcript. which is granted, and a number of statistical exhibits as well as Appen- dixes to his brief explaining how the statistical exhibits were prepared and containing the basic worksheets utilized in their preparaion. The motion to correct transcript has been received in e idence as G.C. Fh 32. Ap- pendixes A. B, and C to the G.C br have been rceied ais G C Ehs. 33, A, B. and C The statistical exhibits have been received as G( C xh 34 (- XX). Respondent also filed a statistical exhibit as Appendix A to its brief which has been received as Resp. Exh. 4 FINDINGS ANtD CONCLUSIONS I. THE HUSINESS OF THE EMPI.OYERS Western Pennsylvania Service Contractors Association and Boilermaker Employers Association of Western Pennsylvania Area are multiemployer associations which negotiate and execute collective-bargaining agreements on behalf of their members. The membership of each as- sociation is composed of employers engaged as contrac- tors in the construction industry in and around western Pennsylvania. During the year preceding issuance of the complaint members of each association had direct inflow in excess of $50,000. Each association has represented its member-employers in collective-bargaining negotiations with Respondent and is a party to a collective-bargaining agreement with Respondent. I find that Western Penn- sylvania Service Contractors Association and oiler- maker Employers Association of the Western Pennsylva- nia Area and their employer-members are employers en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act for the Board to assert jurisdiction in this case. II. THE LABOR ORGANIZATION INVOI.VEI) Respondent is a labor organization within the meaning of the Act. II. Tilt. All EGEI) UNI:AIR I HBOR PRAC'II RES A. The Aleged Discrimin tion in Referrals fir Employment 1. Respondent's exclusive referral agreements and statements of procedure Respondent has an agreemcnl, referred to as the field construction agreement, with Boilermaker Employers Association of the Western Pennsylvania Area and an agreement, referred to as the maintenance agreement, with Western Pennsylvania Service Contractors. Each requires members of the associations to hire individuals for employment solely on the basis of referral by Re- spondent. In addition to referrals under these contracts, Respondent also makes some referrals pursuant to con- tracts between its parent union, referred to herein as the Boilermakers International, and other employer associ- ations. One of these agreements, referred to as the NTM agreement, governs transistory construction and field erection work and provides that each employer working under that contract may hire its first five employees from outside sources, must hire its next five employees through the local union in whose jurisdiction the work is being performed, and must hire every second employee thereafter through that local union. The provisions of the field construction agreement governing referral are as follows: 749 DECISIONS OF NATIONAL LABOR RELATIONS BOARD EXCLUSIVE REFERRAL OF MEN Article II Section 1. Exclusive Referral: (a) The Employer shall, under the terms of this Agreement, request the Union to furnish all competent and qualified field construction boilermakers and boilermaker ap- prentices. The Employer in requesting the Union to furnish such employees, shall notify the Union either in writing or by telephone stating the loca- tion, starting time, approximate duration of the job, the type of work to be performed and the number of workmen required. (b) In the event the Union is unable to fill requisi- tions for employees within forty eight (48) hours, the Employer may employ applicants from any other available source. Section 2. Registration: The Local Union shall establish and maintain an appropriate registration fa- cility for qualified construction boilermakers and apprentices available for employment. Applicants shall be registered on the appropriate out-of-work list for each classification in the order of time and date of registration. Each applicant for employment shall be required to furnish such data, records, names of Employers and licenses as may be deemed necessary and each applicant shall complete such form or registration as shall be submitted to him. Applicants for employment shall also list any spe- cial skills that they possess. Applicants for employ- ment shall, upon reporting for work, provide the Employer with a copy of the above Qualification Sheet. Applicants shall reconfirm their availability for job referral at least every two (2) weeks and be available by telephone within a reasonable time (four hours) in order to maintain their place on the out-of-work list. Section 3: A. Qualified Construction Boiler- makers: Boilermakers shall be qualified for registra- tion on a boilermaker's out-of-work list who can satisfactorily establish that they have had at least four (4) years actual practical working experience in the boilermaking trade as a foreman, subforeman or boilermaker in the building and construction indus- try, or who either (1) Have successfully served an apprenticeship at the trade of field construction boilermaker under an apprenticeship program approved by the U.S. Bureau of Apprenticeship Training or State Divi- sion of Apprenticeship Standards, or (2) Have successfully passed a competency exam- ination that adequately tested the degree of skill and training necessary to be a competent construction boilermaker. Any question as to what constitutes a "competency" examination shall be resolved by the Joint Referral Committee referred to hereinafter. B. Qualified Boilermaker Apprentices: Boiler- maker apprentices shall be qualified for registration who can establish that they are indentured and serv- ing an apprenticeship as field construction boiler- makers under an apprenticeship program approved by the United States Bureau of Apprenticeship Training or State Division of Apprenticeship Stand- ards. Section 4. Referral of Men: Upon the request of the Employer for foremen, assistant foremen, boiler- makers or boilermaker apprentices, the Union shall immediately refer competent and qualified regis- trants to the Employer in sufficient number re- quired, in the manner and under the conditions set forth in this Agreement, from the appropriate out- of-work list, on a first in, first out basis; that is, the first name registered shall be the first name referred, provided that: 1. Request by the employer for key men to act as general foreman or foremen shall be honored with- out regard to the requested man's place on the out- of-work list. 2. Bona fide requests by the Employer for boiler- makers with special skills and abilities will be hon- ored, and persons possessing such skill and abilities shall be referred in the order in which their names appear on the out-of-work list. The decision of the dispatching agent in referring such registrants is ap- pealable to the Joint Referral Committee, as herein- after provided. Section 5. Non-Discriminatory Referral: The Union and the Employer agree that the referral of construction boilermakers and apprentices shall be on the following basis: (a) Selection of applicants for referral shall be on a non-discriminatory basis and shall not be based on, or in any way affected by, Union membership, by-laws, rules, regulations, constitutional provisions, or any other aspect or obligation of Union member- ship, policies or requirements. (b) The Employer retains the right to reject any job applicant referred by the Union. (c) The Union and the Employer shall post, in places where notices to all employees and appli- cants for employment are customarily posted, all provisions relating to the functioning of the hiring provisions of this Agreement. (d) It is the continuing policy of the Employer and the Union that they shall not discriminate against any employee or applicant for employment because of age, race, sex, color, creed or national origin. The agreement also establishes a joint referral commit- tee to be composed of equal numbers of representatives of Respondent and employers whose responsibility in- cludes establishment of rules and regulations governing the operation of the job-referral system including estab- lishment of out-of-work lists, resolution of disputes aris- ing out of operation of the referral system, and establish- ment of examinations for qualifying boilermakers for reg- istration on the out-of-work lists. The agreement also establishes minimum standards for the joint referral committee which include the following: 4. Applicants for Registration: A. All applicants for registration on the out-of-work lists shall be re- 750 INTERNATIONAL BROTHERHOOD OF BOll ERMAKERS quired to complete an application form setting forth required personal statistics together with a detailed record of his experience and qualifications in the trade. B. Should any question arise, it shall be the re- sponsibility of the Local Joint Referral Committee to determine the validity of such application. C. If, for any reason, the Local Joint Referral Committee has reasonable doubts regarding the ap- plicant's qualifications, it may require the applicant to take the established competency examination. D. When an applicant wishes to register and does not have sufficient experience to qualify, his appli- cation shall be kept in a "Hold" file for future refer- ence and the Local Joint Referral Committee shall be under no obligation to administer a competency examination. 5. Examination: A. The examination for the clas- sification of rigger should be designed to show that the applicant is capable of performing any and all types of rigging assignments in the boilermaker field construction trade including: 1. Ability to perform high work. 2. Set up and dismantle cranes, derricks, and hoists. 3. Rigging for all types of lifts. B. The Local Joint Referral Committee is author- ized and shall obtain from Employers working in the area information relative to welding tests for current and all future welders including dates such tests were taken, type of test taken and results thereof. Such information shall be made a part of the applicant referral record and shall be accepted by the Local Joint Referral Committee as sufficient evidence in determining competency and placement on the out-of-work list. A welder, other than above, who can establish his previous experience and quali- fications to the satisfaction of the Local Joint Refer- ral Committee shall be considered eligible as a welder on the appropriate out-of-work lists. The Local Joint Referral Committee is author- ized to establish a test designed to determine wheth- er or not other welder applicants are eligible to be placed on appropriate out-of-work lists. It is understood that the Employer may request any boilermaker-welder applicant to pass the re- quired welding test at the job site as a condition of employment as a welder. C. The Local Joint Referral Committee is author- ized to establish such written and/or oral tests for construction boilermakers which shall be of such detail that an applicant with four years' practical ex- perience in the boilermaker construction industry could normally pass it. The tet shall establish that the applicant has or has not a general knowledge of all phases of the trade, of the machinery, tools and equipment used in doing the work, and that the ap- plicant has sufficient mechanical ability to perform any phase of the work normally expected. The work of the construction boilermaker shall be con- sidered to include: boilermaking, acetylene burning, riveting, chipping, caulking, fitting up, grinding, reaming, impact machine operating, pre-heating, stress relieving, scaffold erecting, the safe use of cable and rope, and the handling of any type of ma- chinery, tools and equipment used in boilermaker work. The provisions of the maintenance agreement relating to exclusive referral are as follows: ARTICI.E XIX HIRING AND TRANSFER OF MEN The Employer agrees to hire men in any territory where work is being performed or is to be per- formed in accordance with the hiring procedure ex- isting in the territory where the work is being per- formed or is to be performed; however, in the event the Local Union is unable to fill the request of the Employer for employees within a forty-eight (48) hour period after such request for employees (Satur- days, Sundays and Holidays excepted), the Employ- er may employ workmen from any source. The Em- ployer shall have the right to move qualified Fore- men, Area Foremen, Pushers, and Employees from one job assignment to another within the plant loca- tion where they are working. The Employer shall have the right to transfer General Foremen between plant locations within Local Union jurisdiction where work is being performed. By mutual agree- ment, Foremen, Area Foremen and Pushers may be moved between plant locations within the Local Union jurisdiction. The Employer shall determine the competency of all employees. The Employer shall determine the number of men required on the project and shall select any employee or employees working under the terms of this Agreement to be laid off regardless of membership or non-membership in the Union. The only written description of Respondent's hiring procedures is that set forth in Article II of the field con- struction agreement, and the same procedures are fol- lowed by Respondent in making referrals under both agreements. Apart from these agreements the only writ- ten instructions or procedures Respondent has provided for those utilizing its hiring hall is a statement which ap- peared in Respondent's November 1977, newsletter: Under orders of the EXCLUSIVE HIRING HAtI. Article III of our Agreement as set forth by the In- ternational (see below) this office will no longer accept telephone calls concerning men being out of work. Whether members or non-members, every man who is out of work must report to this office and sign the out of work book. I have received comments from some of our members regarding the manning procedures of maintenance work in the Power Plants. 751 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Unions must do everything in their power to maintain this work. Because of this, the Business Manager must have the authority to alternate people as he sees fit in the manning of this work. This is particularly true of placing the necessary skills required for a given job, such as welders, rig- gers, supervisors, etc. This is the criteria we must use, not the fact that any individual may or may not live near a certain job. We must satisfy our customers, the owner and contractor, to the best of our ability, in giving them the most skillful and experienced people to do their job and this is the judgment that I must exercise in placing the men.2 This statement was sent to all members of Respondent and to stewards for posting on bulletin boards. Respond- ent's business manager, Fred Gualtieri, also visited a number of jobsites and read it to those on the job. 2. The operation of Respondent's hiring hall a. The referral and registration facilities How Respondent actually operated its referral system is not easily determined. It kept no comprehensive re- cords of its referrals and did not preserve the lists from which referrals were made.3 The only witness who testi- fied at length as to the operation of the referral system was Respondent's business manager, Fred Gualtieri, whose testimony was at times inconsistent, evasive, argu- mentative, and self-serving. Nonetheless, there is much in his testimony that is revealing, and that testimony when pieced together with other more fragmentary testimony as to the treatment of individuals seeking to use Re- spondent's hiring hall affords a basis for developing a de- scription of how it operated, although not for recon- structing an accurate picture of the day-to-day referrals made by Respondent. During the times material to this proceeding Respond- ent maintained a set of card racks at its union hall in a room not normally open or visible to individuals who visited the hall looking for work.4 These racks contained cards for each of Respondent's more than 800 members as well as approximately 100 nonmembers. 5 Apart from the cards in the racks, Respondent main- tained facilities for individuals who came to the hall 2 The portion of the statement which has not been reproduced quotes verbatim art. I Sec 2 of the field construction agreement which is set forth above. I During the investigation of this case Respondent made available to the General Counsel's office memoranda bearing dates from January II. 1978, through April 10, 1978, which record referrals. These were ,i. scribed as an incomplete record of referrals for this period. Although t'i General Counsel subpenaed for production at the hearing all similar re- cords for the period from October 1977 through August 1978, Respond- ent produced no additional memoranda of this type. Business Manager Gualtieri testified that none was found in a search of its files and that no other records were kept of referrals made by Respondent. 4 Although Respondent moved to a new union hall during the period covered by this proceeding, insofar as appears the relative location and the description of the racks was not materially changed in the new hall s As used in this Decision, the term nonmember includes all persons who do not hold membership in Respondent whether they are members of other locals or affiliates of the Boilermakers International, other unions, or no union. seeking job referral to record their interest. Until De- cember 21, 1977, Respondent kept a bound book, re- ferred to in the November newsletter as the out-of-work book, on a stand at the union hall for individuals seeking referral to sign. Each day the date was recorded in the book, and individuals who came to the hall on that day signed beneath it showing their names, union affiliation (if any), classification, and telephone number. On De- cember 19, Respondent replaced the out-of-work book with separate preprinted forms headed "OUT OF WORK LIST." These forms called for the same infor- mation as had previously been entered in the out-of-work book, but they were collected at the end of the day, and only the list for the current day was left out for individ- uals to sign or examine. There were no instructions or rules of procedure posted at the hall other than a sign directing those seeking work to sign the book or list. For convenience and to avoid confusion between these lists and the term "out-of-work list" as used in the field con- struction agreement, both the book and the lists will be referred to herein collectively as the out-of-work book. b. The use of the card racks and lists Gualtieri testified that in making referrals he looked first to the card racks, exhausted the possibilities for re- ferral from those with cards in the rack, and only then looked at the out-of-work book. In his testimony Gual- tieri took the position that the out-of-work book was not the same as the "out-of-work list" referred to in the field construction agreement. According to Gualtieri, the book simply showed who was seeking work. While Gualtieri's testimony thus indicates that those without cards in the racks were not considered until he had exhausted the card racks, his testimony leaves less clear the extent, if any, to which those who signed the out-of-work book but lacked cards were considered for referral. Thus, Gualtieri testified that he did not have to worry about those who signed the lists "because they are going to their own local" and that "they are not on the out-of-work list, because they are from other unions, and they are going back to their own . . . organization, why would I have to worry about them." He testified further that he does not "bother" with the lists because "you could look at half of them, and see some of them are school kids on there." In addition, when Gualtieri re- sponded to referral requests on weekends at his home, he worked from lists of names of available individuals taken from the card racks and did not have with him any names from the out-of-work book. c. The requirement that those seeking work sign the out-of-work book Gualtieri initially testified that members as well as non- members should sign the out-of-work book so that he would know they were looking for work, consistent with the notice in Respondent's November newsletter. How- ever, he also testified that those with cards in the racks were not uniformly required to come to the union hall and sign the out-of-work book in order to be referred, that upon completion of a job, the steward called in the names of all those being laid off, and that as a result their 752 INTERNATIONAL BROTHERHOOD OF BOILERMAKERS cards were placed in the racks showing that they were out of work. He testified further that those who did not trust the steward came to the hall to sign the lists. While Gualtieri's testimony does not indicate that the stewards reported the layoff only of those with cards in the racks, there is no indication that Respondent made any record of the stewards' calls indicating availability of those without cards. Unlike Gualtieri, Respondent's financial secretary and business agent, Quinn, testified that all applicants were required to come to the union hall and sign the out-of- work book, and the Charging Parties who were non- members with cards in the racks testified that they were repeatedly told that they had to sign the book in order to be referred. 6 d. The requirement that those seeking work reconfirm their availability The evidence as to the requirement that applicants re- confirm their availability every 2 weeks also is conflict- ing. Gualtieri testified that at one time Respondent re- quired applicants to come to the union hall to reconfirm their availability but that he stopped that practice and permitted them to call in. Although Gualtieri testified that one individual with a card in the racks was not re- ferred because he failed to call the office to reconfirm his availability; he also testified that no record was kept when individuals called in to report that they were still out of work. He testified further that when he did not hear from an individual for 2 weeks he did nothing, that he did not remove a card if he failed to hear from an individual after 2 weeks, and that reconfirmation was a procedure that could be used but which Respondent did not use. From the fact that no record was kept when in- dividuals called in and no action was taken when they did not, I find that reconfirmation was not required, at least of those with cards in the racks.7 e. The system for assigning cards to nonmembers seeking referral A critical question in this case is how a nonmember seeking referral through Respondent's hiring hall ob- tained a card for placement in the racks. During the period from October 1977 through August 1978 well over 1,000 nonmembers came to the hall and signed the out-of-work book. However, while all members had cards in the racks, more than 90 percent of the non- members who signed the book never had cards in the racks during the same period. Gualtieri initially testified that only those who were qualified to perform the work had cards in the racks, that not all nonmembers who came to the hall had cards in the racks because "they weren't qualified ... so I 6 One of them, however, Sarambo, testified that on one occasion when he was at the union hall Gualtieri told him that it was not necessary for him to sign the book because Gualtieri knew who he was. 7 Gualtieri's testimony in this regard showed characteristic evasiveness and inconsistency. Quinn's testimony with respect to reconfirmation was even less credible. Although he testified that reconfirmation was re- quired, he then qualified that testimony and agreed that no records were kept which would indicate whether or not there had been reconfirmation I do not credit Quinn. didn't think it was worth while to give them a card," that he did not have to give anyone a card until he could prove that the applicant had 4 years' experience, and that those who signed the out-of-work book who did not have 4 years' experience did not have cards in the racks. However, Gualtieri also testified that he did not know the qualifications of those who signed the book until he called them and found out. Although he testified that he called almost everyone who signed the book, his testimo- ny made it clear that he did not call those without cards until an occasion arose to seek referrals from the out-of- work book because he had exhausted the cards in the racks. Gualtieri also testified that he was familiar with the skills of many of those without cards who signed the lists and that, in any event, he took an applicant's word as to his qualifications, leaving it for a contractor to lay him off if he turned out to be unqualified. There is some evidence from testimony of applicants to show how Gualtieri handled their applications. Ralph McAdams, a national transient member of the Boiler- makers International, referred to commonly as an NTM member, was a certified welder with 5 or 6 years' experi- ence. He visited the union hall in March, did not see or speak to a representative of Respondent, and signed the out-of-work book as a sign directed. He was never called by Respondent either for referral or to check his qualifi- cations, and no card was placed in the racks for him. On the other hand, Wayne Young and Sarambo, also NTM members, who visited the hall and spoke to Gualtieri, were given cards without inquiry into their experience or qualifications. In addition, a student, Geraci, had a card in the racks, and Gualtieri's son Michael was admitted to membership and given a card in the racks without the requisite experience for qualification. f. Specific evidence of preference to members On a number of occasions nonmembers asked Re- spondent's officials about the availability of work and were told in response that there were varying numbers of local men loafing. In December 1977, Wayne Young asked Quinn if there was work; Quinn replied that things were slack and that they had local people loafing. A day or two later, Young asked Fred Gualtieri about work and he replied that he had about 150 local men loafing. On various occasions when Kardos asked about work, Gualtieri told him that he had to get his men out first; Respondent's former president, Chambers, told him he had men loafing and had no work for him; and Respond- ent's vice president, Garritan, told him that he had men loafing. On several occasions when Vernon Boring spoke to Quinn, Garritan, or Chambers about work, they re- plied that they had 150 to 200 local men out of work. Similar statements were made by Gualtieri, Chambers, and Quinn to Sarambo, and to Wayne, Gary, and Galen Boring by Quinn.8 s Of those to whom these statements were attributed, only Quinn testi- fied that he had not made the remarks attributed to him. According to Quinn, he stated that he and Respondent's agents generally replied by re- ferring to the number of men on the board or loafing but did not tell any one who asked that he had local men loafing As no other witness so tes- Continued 753 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In April 1978, Wayne, Gary, and Galen Boring were at the union hall where they signed the out-of-work list. They were present with a group of men seeking referrals when Gualtieri indicated that he needed a number of men. Gualtieri then referred a number of those present to jobs, calling first for those with Boilermaker books to whom he gave referrals. Sarambo, Kardos, and Wayne and Gary Boring who were NTM members, received re- ferrals. Gualtieri then called for those with books of other International unions, who were also referred. When Galen Boring asked Gualtieri to be referred, Gual- tieri asked him if he had a union book. Galen said that he did not, and Gualtieri told him that he could not send him out at that time without some kind of a union book.9 There is also disputed evidence that in maintaining the card racks Respondent kept the cards of members in sep- arate racks from those of nonmembers. Edward Kardos testified that he had seen the racks on a number of occa- sions and that there were two racks. He testified that on one occasion between October and December 1977 he observed that the cards in one rack had Respondent's number 154 on them, and that at the end of the rack was a section labeled "sick" list which also had cards with the number 154 under it. According to Kardos, he saw that the second rack was on the other side of the wall and contained cards which did not have the number 154 on them. He testified that he looked for his own card, did not see it, saw a card for one of the Borings, picked it up, and discovered that there were four cards, for Wayne, Vernon, and Gary Boring and for him, in the same slot. He did not touch any of the other cards. Vernon Boring testified that on one occasion, Decem- ber 22, 1977, he went to the union hall with Kardos and that they were in the room with racks where Kardos spoke with Respondent's president. While Kardos was talking, Boring observed the rack on the right-hand side inside the door and noticed the portion headed sick list. He testified that at the top of the rack there was a scotch-taped sign with tne number 154 on it. Boring tes- tified that on the left-hand side there was another rack. In that rack he noticed the names of a couple of NTM members whom he knew and he looked for his name. He noticed four cards in a single slot near the bottom of the rack and found that they were the same four cards that Kardos had seen in the slot. There was no designation at the top of this rack. He did not look at the cards or the racks at any other time. He and his brothers were work- ing at the time he saw his card in the rack. He did not examine the cards under the heading sick list or check the local affiliations shown on them. He did not examine the cards other than the four which were together. tified, as there is substantial uncontradicted evidence of similar statements by Respondent's other agents, and as I have found otherwise that Quinn's testimony is incredible, I have not credited Quinn's version of what he said. 9 Sarambo, Kardos, and Wayne, Galen, and Gary Boring testified to this incident, and these findings are based on a composite of their testimo- ny When Fred Gualtieri testified to this incident, he did not deny that he asked for men with union books, but testified that he asked to see their cards to make sure that there were qualified boilermakers present before going on to the rest of those present. Gualtieri claimed that everyone present at that time got a job. I find that Galen Boring was not referred that day, and do not credit Gualtieri as to his purpose or to the extent that his testimony is in conflict with that of the others Waldron Sarambo testified that, in late October 1977, he saw his card in the rack, that on three other occasions in December 1977 and January 1978, he looked for his card and found it missing from the rack, and that on Jan- uary 10 after he inquired about his card it was put in the rack. According to Sarambo, on January 10, he went to the hall with a camera and photographed the rack. He testified that at one point in October he was at one rack while Gualtieri was at the other, but otherwise was not asked whether there was one rack or two or to describe what he saw in the racks he observed. He was not asked about the photograph he took nor was it offered in evi- dence. Gualtieri testified that there was only one rack, that members' cards were not kept separate from those of nonmembers, and that the only cards which were kept separately were those of students who wanted only summer work. Gualtieri testified further that there were racks on two different walls and that the cards in the two racks were arranged in order of layoff. Later, on ex- amination by counsel for the Charging Parties, Gualtieri again denied that there were two racks, but then testified that the one rack did not fit on one wall and that part of it was on a second wall. Still later Gualtieri testified that trainees, apprentices, welders, and mechanics were all kept in the same rack and that there was one rack for those who were employed and another for those who were not. Business Agent James Quinn testified that the rack (which he referred to as a board) contained cards of members and nonmembers in December 1977. While he was questioned in some detail about how cards came to be placed, moved, and removed from the board, he was not questioned about the physical characteristics of the rack. g. Statistical evidence To supplement the testimonial evidence the General Counsel has prepared a number of statistical analyses of documentary evidence relating to the operation of the hiring hall. The documentary sources consist of the fol- lowing: Vested fund reports which are computer prin- touts containing alphabetized lists of all individuals who worked under Respondent's jurisdiction and showing the identity of their employers and total pay received month by month for the period from October 1977 through August 1978; lists of Respondent's members showing the month of joining for those who became members during 1978; monthly reports showing the identity of all job stewards; copies of the portion of the out-of-work book and the out-of-work lists covering the period from Sep- tember 1977 through August 1978; and Respondent's office referral memoranda for the period from January 11, 1978, to April 10, 1978.10 Because Respondent had no actual records of referral other than for the 3-month period indicated above, which Gualtieri testified were not even complete for that period, the General Counsel relied on the vested fund re- ports as secondary evidence from which to infer who re- 'O See fn 3, upra. 754 INTERNATIONAL BROTHERHOOD OF BOILERMAKERS ceived referrals, making certain assumptions for that pur- pose. Those assumptions are fully stated in the testimony of John Johnson who prepared the analyses and in Ap- pendix A to the General Counsel's brief which has been received herein as General Counsel's Exhibit 33-A. These assumptions were necessary because the vested fund reports do not show when an individual started or stopped work for each employer shown. They show only the month during which an individual worked for each employer listed under his name. It has been as- sumed that each time the name of a new employer ap- pears under an individual's name in the vested fund re- ports, there was a referral to that employer. When an in- dividual is shown as working for the same employer for two or more consecutive months, it has been assumed that his employment was continuous with that employer and the result of a single referral. When an individual is shown as working for the same employer in consecutive months but also for one or more other employers during the same months, it has been assumed that he made the minimum number of job changes, and therefore had the minimum number of referrals possible, to account for the number of employers shown. No referrals have been counted for the month of October 1977, since part of the month fell outside the 10(b) period and there are no re- cords to show whether October employment started during that month or carried over from employment in earlier months. For purposes of analysis the period covered by the vested fund reports was broken down into three periods, referred to for convenience herein as quarters: Novem- ber 1977 through January 1978; February through April 1978; and May through August 1978. For each of these quarters the names of all individuals shown on the vested fund reports were listed on tables which showed for each individual (whether or not he was a member of Respondent or became a member during the period covered) the number of times and the months in which he was referred to jobs, his gross earn- ings for the period covered, and the dates on which he signed the out-of-work book during the period. From these tables the General Counsel prepared a number of deeper analyses. One analysis compares total earnings of members during each of the quarters with those of nonmembers. This analysis shows that the aver- age earnings of members in the three quarters were from 1.77 to 2.18 times greater than the average earnings of nonmembers who worked at some time between October 1977 and August 1978. It shows that, when those who signed the out-of-work lists but never worked are also considered, the average earnings ratio ranged from 1.89 to 2.38. Another set of analyses separately correlates numbers of referrals received by individuals to the number of times they signed the out-of-work book for members and nonmembers in each of the quarters. These analyses show that in each of the quarters the overwhelming ma- jority of the members who received single or multiple referrals did not sign the out-of-work book at all. They also show that for nonmembers there were more refer- rals of individuals who did not sign the out-of-work book than for those who did, but the number of non- members who received multiple referrals was smaller than the number of members with multiple referrals and the number of nonmembers with multiple signings of the out-of-work book but no or relatively few referrals was much greater than the number of members in these cate- gories. A further analysis taken from the tables developed from the vested fund reports shows the total number of referrals per month for members and nonmembers. That analysis shows as follows: Refer. M -- Von- rals bers members 347 373 442 621 674 737 765 776 901 1092 Differ- ence 264 83 181 255 118 137 326 116 210 405 216 189 360 314 46 394 343 51 337 428 -91 322 454 -132 317 584 -267 421 671 -250 Mo. Mar. Feb. Jan. Nov. July Aug. Dec. June May Apr. From the union referral memoranda and the out-of- work lists for the period from January 11 through April 11, 1978, the General Counsel made correlations which showed that during this period four times as many non- members (380) as members (97) signed the out-of-work book; 1.62 times as many members (202) as nonmembers (124) received referrals; and 1.97 times as many referrals went to members (296) as nonmembers (150). They showed further that 232 out of 326 individuals referred (71 percent) had not signed the out-of-work book. Of these 156 were members and 76 were nonmembers. Of the 94 individuals who signed the out-of-work book and were referred 46 were members and 48 were non- members. Finally it showed that, while 20 percent of all those who signed the out-of-work book were referred, 47 percent of the members who signed the out-of-work book were referred but only 13 percent of the non- members who signed the out-of-work book were re- ferred. Another analysis breaks down Respondent's monthly steward reports into members and nonmembers and shows that on the average there were 33 stewards a month who were members and less than I a month who was a nonmember. I A final analysis taken from the office referral memo- randa for the 3-month period starting January 11, 1978, correlates referrals with membership and shows that on a daily basis referrals of members outnumbered non- member referrals on all but 12 days, and usually by lop- sided margins. Respondent has presented a brief analysis of its own showing the relative employment of members and non- members in 3 selected months, as follows: I I Variances and similarities in names on the steward reports and mem- bership lists raised some doubts as to correlations Even if all doubts were resolved in favor of Respondent, the aerage number of nonmember stewards per month would have been only slightly more than two 755 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Oct. 1977 Apr. 1978 Aug. 1978 Mem- Non- bers members 758 619 805 688 835 782 This analysis also shows that, during the entire period from October 1977 through August 1978, 919 members and 1,747 nonmembers worked in Respondent's jurisdic- tion. 3. Concluding findings The General Counsel concedes that Respondent's col- lective-bargaining agreements do not on their face de- scribe a discriminatory referral system but contends that Respondent in the operation of its exclusive hiring hall favored Respondent's members by establishing a system of first and second class citizenship with all members, but less than 10 percent of nonmembers, receiving first class treatment. The General Counsel also contends that Re- spondent violated its duty of fair representation to all employment applicants by arbitrarily determining which nonmembers received cards in the card racks, by main- taining inconsistent practices with respect to the referral of applicants, and by deviating from the contractual re- quirements for operation of its exclusive hiring hall. Respondent concedes that the card in the racks are the primary source of referral and contends that they consti- tute the out-of-work lists referred to in the field con- struction agreement. Respondent contends that the card racks include the names of all applicants who meet mini- mum qualifications for referral, so that the extent to which nonmembers are referred from the out-of-work book is not a reflection of the validity of Respondent's referral system. Respondent contends further that all those with cards in the racks are treated uniformly. The evidence shows that there was no objective basis for distinguishing between nonmembers who had cards in the racks and those who did not. While Gualtieri as- serted that those without cards were unqualified, his tes- timony as a whole shows that Gualtieri did not know whether or not those who signed the out-of-work book were qualified. Although he testified that he always took a man's word as to his qualifications, he ignored appli- cant's descriptions of their skills on the out-of-work book which showed them to be certified welders, boiler- makers, and mechanics, indications which showed in the absence of further inquiry that they were qualified. Indeed, even after Gualtieri referred nonmembers with- out cards for work, giving further indication of their qualifications, they were not given cards in the racks. When individuals came to the hall to register for work, they were not asked about their qualifications beyond what they indicated in the book, nor were they asked to document the qualifications they had. There is no indica- tion of the basis on which Gualtieri decided that Wayne Young and Sarambo were qualified to receive cards while McAdams was not. I find that Respondent did not place cards in the racks for all qualified nonmembers who signed the out-of-work book but that it denied cards to the vast majority of those who signed the out-of-work book without any determination of their qualifications or any other objective basis.'2 Moreover, while Respondent contends that the cards constituted the out-of-work list contemplated by the con- tract, as set forth more fully below, the evidence shows that in setting up the card racks Respondent ignored the requirements of the contract relative to providing regis- tration forms and establishing tests and procedures through the joint referral committee to determine qualifi- cations of applicants. Having created a structure different from that contemplated by the contract which ignored contract procedures and ignored qualifications of non- member applicants, Respondent cannot rely on the con- tract as authorizing the use of the cards as an out-of- work list. Respondent does not contend, nor could it successful- ly, that the burden was on nonmembers who sought re- ferral to request cards for placement in the card racks for, from apart the fact that there is no evidence that members or nonmembers who had cards had been re- quired to request them, Respondent gave no notice of any kind to applicants that cards were needed or that the card system even existed.' 3 If Respondent desired to rely on the cards rather than the out-of-work book, the burden was on Respondent to inform all applicants of their existence and how they were obtained. In the light of these conclusions, I find that the system inherently favored members over nonmembers. All mem- bers had cards in the racks, and in making referrals Gual- tieri exhausted the racks before turning to the out-of- work book. While some nonmembers had cards, the vast majority did not, and the very method of operation de- scribed by Gualtieri insured that all members were con- sidered for referral before any nonmember without a card, regardless of when they indicated their availability for referral. Indeed, what Gualtieri's testimony leaves in doubt is not whether members were favored but whether the signing of the out-of-work book by nonmembers had any significance. Thus, in his testimony Gualtieri dispar- aged the significance of signing the book, indicating that he sometimes ignored names on the assumption that the signers would return to their own locals and that he did not bother with the book. There is confirmation of the meaninglessness of the out-of-work book in the analysis by the General Counsel of correlation between signing the book and referrals for nonmembers. In each quarter large numbers of nonmembers received referrals without signing the out-of-work book, while many nonmembers signed the book a number of times without being re- ferred. This evidence suggests that as in the case of the April 1978 incident described in the record, when Re- spondent exhausted the cards in the racks it was as likely to refer those who happened to be at the union hall as it was to call those who previousy had signed the out-of- work book. 12 Quinn's testimony that Respondent provided cards for all individ- uals who signed the out-of-work book is patently incredible. a Plumbers Local Union No. 17 of the United Assocation of Journeymen. Plumbers and Pipefitters of the United States and Canada. AFL-CIO (FSM Mechanical Contractor. Inc.), 224 NLRB 1262 (1976), enfd. 575 F.2d 585 (6th Cir. 1978). 756 INTERNATIONAL. BROTHERHOOD OF HOILERMAKERS There are further indicia of discrimination against non- members apart from that inherent in the system de- scribed above. As set forth above there is disputed evi- dence that Respondent maintained separate racks for members' and nonmembers' cards. The General Counsel's evidence is limited to testimony of single observances of separate racks by Kardos and Vernon Boring, neither of whom examined closely the cards in the racks. Sarambo, who had access to the racks with camera, was not asked the critical questions, an- swers to which might have further corroborated or else contradicted Kardos and Boring, and there is no indica- tion as to what if anything his photographs showed. This evidence is not the strongest evidence on which to rest a significant finding. However, while Respondent clearly was in a superior position to produce witnesses who could describe the racks in detail, the testimony of its witnesses was even less compelling. Gualtieri, who testified principally as an adverse witness called by the General Counsel, from the outset showed that his credibility would be vulnerable to attack for a variety of reasons, and his testimony as to the racks demonstrated the characteristics which im- paired his testimony as a whole. Certainly if there were ever a witness in need of corroboration, it was Gualtieri. Yet Respondent presented only a single additional wit- ness, Quinn, to testify about the racks, and his testimony shed almost no light on the physical setup of the racks, was inconsistent with Gualtieri's testimony as to the rela- tionship between the cards in the racks and the out-of- work book, and was inconsistent as well with the evi- dence that only a fraction of those who signed the out- of-work book had cards in the racks. Thus, while the evidence as to the racks adduced by the General Counsel is relatively weak, it is at least un- derstandable that further corroboration would not be easily found. But the evidence from Respondent's offi- cials, with its internal and external contradictions, fails totally as refutation, and it is not understandable that Re- spondent lacked resources to develop a convincing record in this regard if Respondent's version of the facts is correct. In the light of these considerations as well as the evidence otherwise which shows favoritism based on union membership, I have credited Kardos and Vernon Boring and find that Respondent maintained separate racks for the cards of members and nonmembers as de- scribed by them. While there is no evidence to show how Respondent utilized the two racks in practice, the very maintenance of separate racks warrants an inference of discrimination against the nonmembers with cards, for nothing in the system warranted or required separate racks. Indeed, maintenance of separate racks could only make operation of a nondiscriminatory referral system more difficult, and it cannot be assumed that Respondent maintained sepa- rate racks for no purpose. In the absence of any indica- tion or suggestion of a legitimate business purpose for maintaining separate card racks for members and non- members, I find the maintenance of separate racks evi- dence of an intent to give different treatment to the two groups. Further indication of discrimination lies in the frequent response by Respondent's agents to nonmembers asking about work that no work was available because varying numbers of local men were loafing. Any possible ambi- guity in what was meant by "local men" is eliminated by the following considerations. Respondent did not main- tain out-of-work lists based on residence, although per- mitted by article III of the field construction agreement. All those to whom these remarks were made resided in Respondent's geographical jurisdiction, and Gualtieri took the position that referrals should not be based on geographical distance from jobs. In these circumstances the repeated references to loafing local men can only be construed as references to Respondent's members, and they give added strength to the inference to be drawn from the maintenance of separate card racks that even nonmembers with cards were not given the same consid- eration for referral as members. 14 Whether or not the statistical evidence independently establishes disparate treatment of members and non- members, as the General Counsel appears to contend, I would agree that it gives further support to the inference of discrimination drawn above. Respondent has generally attacked the premises of the General Counsel's statistical exhibits but has not sought to deal with their individual significance. Respondent's major argument, that the card racks, and not the out-of-work book, contained the names of all qualified applicants and were the proper source for referrals, has already been rejected. The argu- ments that Respondent's referral records were incom- plete and that the computer printouts do not reflect order of referral are also without merit. There is no indi- cation that the referral sheets furnished by Respondent for the 3-month period starting January 11, 1978, were not representative of referrals made during that period or the entire period covered by the complaint. The referral sheets came from Respondent's files, and there is no reason why Respondent should have selected, saved, or furnished the General Counsel sheets which distorted Respondent's referrals against its interests. To the con- trary, Respondent's failure to produce any similar re- cords for the period from October 1977 through August 1978, when subpenaed by the General Counsel, and the vague testimony concerning the maintenance and disposi- tion of such records, warrants an inference that such re- cords were either destroyed or deliberately withheld and that production of further referral records would not have aided Respondent's cause. ' With respect to the absence of any indication of the order of referrals in the computer printouts, whatever errors arise from the General Counsel's assumptions, 1' Gualtieri's statement to Kardos that he had to get "my men" out first, in the absence of any explanation, also supports this inference as does the April hiring hall incident described above. ' Gualtieri testified that the form used in making these reports was more than 15 years old but could shed absolutely no light on the lack of similar records in Respondent's files for the period in question, despite the fact that, when the General Counsel initially inspected the records for the 3-month period, Respondent had such reports for almost every day Gualtierl's denials of knowledge of the explanation for this discrepancy is incredible, and Respondent cannot nosv take advantage from the absence of what it failed to produce 757 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they are no more likely to have affected the analysis of nonmember referrals than that of member referrals. These analyses do not purport to reflect with accuracy referrals in response to signings of the out-of-work book; they do reflect relative treatment of members and non- members by Respondent in referring applicants for em- ployment. Finally, failure to show order of referral is completely immaterial as to the large number of referrals of individuals who never signed the out-of-work book, for clearly all individuals referred without signing the out-of-work book were favored over those who had. Respondent also contends that the statistical summaries are not an accurate reflection of favoritism because not all nonmembers who signed the out-of-work book were qualified to work. The related contention that all those without cards were unqualified has already been reject- ed. The question remains whether among nonmembers without cards there was a sufficient number of unquali- fied applicants to negate any inference of favoritism which might otherwise be drawn from the comparisons of nonmember referrals to member referrals. If one were required to draw the inference of favoritism from the sta- tistical information standing alone, this contention might have merit, but it must be rejected when the statistical evidence is viewed in the light of the other evidence of favoritism as well as the evidence that Respondent relied on nonmembers' own assessment of their qualifications, that Respondent made no systematic effort to learn quali- fications of applicants or to separate the qualified from the unqualified, and that the vast majority of non- members in signing the out-of-work book indicated that they worked in classifications which qualified them for referral. When taken in the context of the other evidence, I find that the statistical analyses strengthen the inference of favoritism of members over nonmembers in Respond- ent's referral practices. It shows that, in each quarter analyzed, individual average earnings for nonmembers have been roughly half those for members, indicating that members consistently have received more work than nonmembers. While the number of referrals of members per month remained relatively constant, averaging 340 and fluctuating between 225 and 421, the number of re- ferrals of nonmembers per month has varied widely be- tween busy and slow months from 83 to 671. These fig- ures confirm that members have received preference in referrals to available work and that nonmembers are re- ferred after the possibilities for referring members have been exhausted. The same conclusion is supported by the comparison of referrals to signing the out-of-work book. Many members who never signed the out-of-work book or signed it infrequently tended to receive multiple refer- rals during each of the quarters. On the other hand many nonmembers, including those who signed the out-of- work book on a number of occasions, received no refer- rals or single referrals during the same quarters. In each respect, earnings, total referrals month by month, and correlation of referrals with signing of the out-of-work book, the statistical evidence supports the conclusion that members are favored, that they receive relatively full employment, and that members and nonmembers are referred not in relation to when or how often they sign the out-of-work book but in relation to the level of em- ployment of members at any particular time. Respondent contends that its analysis which compares employment of members to nonmembers shows that re- ferral of nonmembers was not disproportionate to that of members. Apart from the fact that Respondent has pre- sumably chosen the 3 months most favorable to its posi- tion in making its analysis, the numbers do not support its contention or overcome the inferences to be drawn from the testimony and the General Counsel's statistical analyses. Despite the fact that approximately twice as many nonmembers as members sought referral, slightly more members than nonmembers were employed in the months chosen. Thus, while 80 to 90 percent of Re- spondent's members were employed during these months, only one-third of the nonmembers who utilized the hiring hall were employed during the same period. Bearing in mind that many members received work with- out even signing the out-of-work book while many non- members signed the book without receiving work, the employment figures relied on by Respondent if anything support the inference of favoritism of members. More- over, when considered in the light of the evidence as to average earnings and multiple referrals, Respondent's fig- ures are not inconsistent with the inference that members receive relatively full employment while the jobs of non- members are of shorter duration and that nonmembers are referred only after members are at work or have de- clined referral. The General Counsel contends that the evidence also shows discrimination in the referral of stewards and gen- eral foremen. As to stewards Gualtieri testified that ap- proximately 10 percent of the stewards referred were nonmembers. The analysis of Respondent's monthly ste- ward reports prepared by the General Counsel shows that Gualtieri's estimate was high and that the actual proportion of nonmembers referred as stewards during the period in question was 6 percent or less. 6 Those who serve as stewards receive as a benefit exemption from assessments worth 2-1/2 percent of their pay. Under Respondent's bylaws stewards are appointed by Respondent's business manager. The record does not es- tablish that stewards receive preference in referral or when they are appointed as stewards in relation to the time of their referral. Contrary to the General Counsel, I find no evidence of discrimination in referral in these facts. Unlike the Ironworkers cases, 7 on which the General Counsel relies, there is no evidence here that stewards as such were referred out of sequence and that designation of '6 See fn. 11, supra. 17 International Association of Bridge Structural & Ornamental Iron- workers, Local 480, AFL-CIO (Building Contractors Association of New Jersey), 235 NLRB 1511 (1978); International Association of Bridge. Struc- rural & Ornamental Ironworkers, Local 373 (Building Contractors Associ- ation of New Jersey), 235 NLRB 232 (1978); International Association of Bridge. Structural & Ornamental Ironworkers Local 373 (Building Contrac- tors Association of New Jersey), 232 NLRB 504 (1977); International Associ- ation of Bridge, Structural & Ornamental Ironworkers. Local 45 (Building Contractors Association of New Jersey), 235 NLRB 211 (1978); Internation- al Association of Bridge, Structural Ornamental Ironworkers Local 45 (Building Contractors Association of New Jersey), 232 NLRB 520 (1977). 758 INTERNATIONAL BROTHERHOOD OF BOILERMAKERS members as stewards was for the purpose of or had the effect of favoring them for referral over nonmembers.' 8 With respect to foremen, the field construction agree- ment permits employers to request specific individuals to serve as foremen, but provides that, when no such re- quest is made, Respondent selects those to be referred as foremen. Gualtieri testified that overall about 35 percent of those referred were nonmembers and that about 20 percent of the foremen selected by Respondent were nonmembers. Gualtieri also testified that employers mostly requested specific foremen. From these figures the General Counsel argues that the proportion of non- members selected by employers is much higher than that selected by Respondent, that the small proportion select- ed by Respondent cannot be based on objective consider- ations, and that Respondent gives preference to its mem- bers in referral of foremen. Whether or not the evidence as to foremen standing alone would independently warrant an inference of dis- crimination, It seems clear from the above that Respond- ent's referral system inherently discriminated in the refer- ral of foremen as well as others, that any discrimination in selection of foremen was part of a systematic favoring of members over nonmembers, and that Gualtieri's testi- mony tends to confirm rather than negate the existence of such discrimination. In these circumstances, I find that members were preferred for referral as foremen. Such preference violates Section 8(b)(2) and ()(A) of the Act. 19 The General Counsel also contends that Respondent violated a duty of fair representation owed those who used its hiring hall. Generally, in operating an exclusive hiring hall, a union owes a duty of fair representation to all applicants for referral, and it may not act arbitrarily without objective criteria or standards, or in disregard of the provisions of its collective-bargaining agreements. In- ternational Association of Bridge, Structural and Ornamen- tal Iron Workers, Local No. 433 (Associated General Con- tractors of California, Inc.), 228 NLRB 1420, 1437-40, enfd. 600 F.2d 770 (9th Cir. 1979); Local 394. Laborers' International Union of North America, AFL-CIO (Build- ing Contractors of New Jersey), 247 NLRB No. 5 (1980). The General Counsel points to a number of respects in which Respondent acted arbitrarily and/or in disregard of the hiring hall procedures set forth in its field con- struction agreement and incorporated by reference in the maintenance agreement. Thus, in deciding whether or not an applicant received a card in the racks, taking the evidence most favorably to Respondent, Respondent acted without system or standards. Most nonmembers who signed the out-of-work book never received cards, were never told that they needed cards to assure referral, and were never questioned about their qualifications. On the other hand, some of those who pursued Respondent's 18 For the same reason, Local Union 798 of Natsau County, New York: Brotherhood of Painter and Allied Trades. AFL-CIO (.Vassau Disvsion oJ the Master Painters 4ssociation of NAassau-Suffolk Counties, Inc.). 212 NLRB 615 (1974), on which the General Counsel also relies, is distill- guishable. : Local Union No. 725 of the United .4ssociation of Journeymen and .p- prentices of the Plumbing and Pipefitting Industry of the United States and Canada. AFL-CIO (Powers Regulator Company, 225 NLRH 138,H. 144-145 (1976), enfd. 572 F.2d 550 (5th Cir 1978) officials received cards, with no greater demonstration of their qualifications than that made by those who did not. Although an out-of-work book was provided, its use by Respondent remains unclear. Quite clearly it was not the primary source of referrals, but whether it was even the secondary source is shrouded by Gualtieri's inconsist- ent testimony and evidence indicating that referrals were sometimes made from among those who happened to be present at the union hall when men were needed. Even though Respondent in November 1977 informed its mem- bers and others that it would no longer accept telephone calls from those who were out of work and that every- one must report to the union hall and sign the out-of- work book, that requirement was at best unevenly en- forced and in essence unenforced as to union members when Gualtieri continued to act on the basis of telephone calls from job stewards. Gualtieri's testimony in general reflected the use of changing and inconsistent standards and indicates that, apart from the preference given those with cards in the racks over those without them, the re- ferral system was operated in a highly subjective fashion, without objective criteria or consistency. The evidence also shows that the provisions of the field construction agreement relating to hiring hall pro- cedures have not been followed in significant respects. Although article III, section 5, requires posting of all provisions relating to the functioning of the hiring hall, Respondent posted nothing except a sign advising appli- cants to sign the out-of-work list. Thus, it not only failed to advise applicants of their rights and obligations under the agreement, but also affirmatively led them to believe that by signing the out-of-work list they had done what was necessary to register their availability for employ- ment. Article Ill, section 4, requires that the Union refer competent and qualified registrants from the appropriate out-of-work list on a first-in, first-out, basis. Section 8 provides that Respondent shall establish and maintain an appropriate registration facility for qualified applicants, who are to be registered on the appropriate out-of-work list for each classification in the order of time and date of registration. Each applicant shall be required to furnish such information as to past employment and qualifica- tions "as may be deemed necessary" and "shall complete such form or registration as shall be submitted to him." While Respondent purported to establish and maintain a registration facility, for those who lacked cards on the racks it was a sham. Applicants were not required to fur- nish information as to past employment and qualifications other than the description of their classification, and except for the relatively few nonmembers who were given cards in the racks, nonmember applicants were given no form to complete other than the out-of-work book. When Respondent referred applicants, it chose to ignore the out-of-work book and treated the cards in the racks as the registration facility despite the fact that most nonmember applicants were not told of their existence or given any opportunity to obtain cards. If the cards were the list, then Respondent failed to establish and maintain an appropriate registration facility. If the out-of-work book was the list, then Respondent failed to make refer- 759 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rals from the list as required on a first-in, first-out basis. In either case Respondent failed to follow the contract. Article 111, section 2, also requires that applicants re- confirm their availability at least every 2 weeks. As set forth above, at least for those with cards in the racks, this requirement was not enforced, giving them priority for referral over all signers of the out-of-work book no matter how long since they last confirmed their availabil- ity. Article III, section 6, requires establishment of a joint referral committee with specified functions. As set forth above, the joint referral committee has not established tests and procedures to determine qualifications, and in addition Gualtieri has purported to act in its name al- though not a member of the committee. Article III, sec- tion 4, provides for honoring employer requests for boi- lermakers with special skills by referral of persons pos- sessing such skills and abilities in the order in which their names appear on the out-of-work list. Gualtieri's testimo- ny indicates that this provision has been disregarded by honoring requests for men with special skills by name and by referring the most qualified individual rather than the first person on the list who possessed the requisite qualifications. The deviations from the contractual procedures go to the heart of the referral system, the maintenance and ad- ministration of the referral lists, and had obvious direct impact on the employment opportunities of applicants for referral who sought to utilize Respondent's hiring hall. In summary, I find that Respondent has operated its hiring hall under exclusive referral agreements in such a fashion as to give preference in opportunities for referral to its members over nonmember applicants, that it has operated its referral system in highly subjective fashion without objective criteria or consistency, and that it has operated its hiring hall in substantial disregard of written procedures which purport to govern its operation. For these reasons I find that in the operation of its hiring hall Respondent has caused employers to discriminate in hiring against nonmembers and in favor of members and has violated its duty of fair representation owed to those seeking employment through its hiring hall, thereby vio- lating Section 8(b)(2) and 8(b)(l)(A) of the Act.2 0 B. The Alleged Refusal To Process a Grievance On the afternoon of September 18, 1978, Waldron Sar- ambo went to the union hall. The only other person there was John Gualtieri, who was locking the hall and preparing to leave. Sarambo told Gualtieri that he was there about a problem he had on a job and that he wanted to file a grievance. Gualtieri did not question Sarambo about his grievance but replied that the griev- ance procedure was for local hands and he left. Sarambo, 20 The complaint separately alleges that Respondent discrimninlaorily applied its rule requiring applicants to sign personally an out-of-work list in favor of members and against nonmembers As ound above. Respond- ent appears generally not to have required those with cards in the racks to sign the list while requiring certain of the Charging Parties and other nonmembers without cards to do so. These findings have been relied upon as indicia of general discrimination and arbitrariness in the oper- ation f he hiring hall It would he superfluous to make illdepelidicn findings of violation based on the same evidence. as the remedy in any event would be the sane. who was not a member of Respondent, did not speak further about the matter to John Gualtieri or to Business Manager Fred Gualtieri.2 ' John Gualtieri is a brother of Fred Gualtieri. Since July 3, 1978, John Gualtieri has been a full-time employ- ee of Respondent serving as assistant to William Lawlor, who is in charge of Respondent's apprenticeship and training program. Both were described by Fred Gual- tieri, who appointed them, as "agents working under the training program." Their basic responsibility is to see that the training program is carried out but, if other agents are not present at the union hall, they can refer individuals to jobs on their own authority. There is little question that John Gualtieri was an agent of Respondent and was held out to others as such. When he was alone at the union hall he referred individ- uals to jobs in the same fashion as any business agent and, insofar as any visitor to the hall could tell, when he was alone at the hall he had authority generally to act and speak on behalf of Respondent. I find that John Gualtieri was held out to the public as an agent of Re- spondent with authority to transact business with those coming to the union hall for referral or other assistance and to speak for Respondent in response to their re- quests. 22 Respondent had a duty to accept, investigate, and process grievances without regard to the membership of the grievant. M. Eskin & Son, 135 NLRB 666, 670 (1962), enfd. as modified sub nom. Confectionery and To- bacco Drivers and Warehousemen's Union, Local 805, IBTCWHA, 312 F.2d 108 (2d Cir. 1963). Gualtieri's state- ment to Sarambo that the grievance procedure was for local hands, without further explanation, can only be construed as conveying to Sarambo that the grievance procedure was restricted to members of Respondent and that his grievance would not be accepted because he was not a member. By this statement Respondent restrained and coerced Sarambo in violation of Section 8(b)(1)(A) of the Act. 23 Moreover, in his effort to file a grievance Sarambo was not obligated to continue looking for a union official who would accept it. Rather, he was enti- tled to rely on Gualtieri's statement as indicating that further efforts on his part would be futile. I find that Gualtieri's statement to Sarambo thus amounted to actual rejection of Sarambo's grievance because he was not a member and that Respondent also thereby violated Sec- tion 8(b)(l)(A) of the Act.2 4 C. The Alleged Denial of the Right To Sign the Out- of- Work List On September 25, 1978, Gary, Wayne, and Vernon Boring went to the union hall together. They saw John Gualtieri there and each asked if he could sign the out- 21 Sarambo's testimony as to his conversation ith John Gualtieri is uncontradicted and credited 2z Carpenters Distrirrt Council of Denver and Vicinity (lIensel Phelps Construction Co.), 222 NLRB 551 (1976); International Brotherhood of Teamsters. Chauffeiurs, Wrehousemen and Ilelpers of America, Local 70 (Lucky Stores. Inc.), 226 NlRB 205 (1976) 2 lHighwai and Local Moror Ireight Ernployees L.ocal Union No. 667. etc. (Owens-Corning Fiberglav Corporation), 228 NLRB 398 (1977) 2 M Eskin & Son, upra 760 INTERNATIONAL BROTHERHOOD OF BOILERMAKERS of-work list.2 5 Gualtieri said that they could not, and they asked the reason. Gualtieri told them to go see their lawyer. Vernon also asked how many jobs an individual could refuse before he was moved to the bottom of the referral list. Gualtieri again told him to go see his lawyer. 26 The refusal to permit nonmembers to sign an out-of- work list violates Section 8(b)(l)(A) of the Act. Local Union No. 630, United Association of Journeymen and Ap- prentices of the Plumbing and Pipefitting Industry etc. (Ebasco Services, Incorporated), 222 NLRB 525, 525-526 (1976). Here, one defense suggested for the otherwise ap- parent violation of the Act is that it was not necessary for the Borings to sign the out-of-work list as their names were already on it. A second is that there were jobs available at the time the Borings came to the union hall, making it unnecessary for them to sign the list. With respect to the first, while it appears that Respond- ent did not require those with cards in the racks to sign the out-of-work list as a condition of referral, there is no indication that the Borings or other nonmembers were aware of how the referral system really worked, and at times they and others were told that it was necessary for them to sign the list. In addition, the November 1977 notice, the last written instruction on the subject, stated flatly that all men who were out of work were required to report to the union hall and sign the out-of-work list. Whether or not signing the list was necessary, there was every reason for the Borings to believe that it was, and there was no detriment to Respondent if they were per- mitted to sign. Moreover, John Gualtieri did not tell them it was unnecessary to sign the list but refused to let them sign and referred them to their lawyer when they sought the reason. The reference to the Borings' lawyer as well as the refusal to let them sign or state a reason demonstrate that Gualtieri's action was based not on a belief that it was unnecessary for them to sign, but on hostility to the Borings. The second suggested defense, that there was work available, is based on Gualtieri's tes- timony which I have rejected. However, even if Gual- tieri had offered the Borings jobs which they had reject- ed, there was still no reason to deny them opportunity to sign the list. As Fred Gualtieri's testimony makes clear, those with cards in the racks often rejected referrals without penalty, and the referral system did not require an applicant to accept any referral offered him. I find that by refusing to allow the Borings to sign the out-of- work list on September 25 Respondent violated Section 8(b)(1)(A) of the Act. 1* Gary Boring testified that the list was not in sightl On some prior visits to the hall, the list had been removed from a desk drawer when they asked to sign it. 2 These findings are based on a composite of the testimony of Gary. Wayne, and Vernon Boring. John Gualtieri testified initially that he never met the Borings before the hearing iI this case, did not know who they were, and did not know what day they were talking about Then, however, he testified in detail as to his version of the meetling described by the Borings. I find the two branches of his testimony irreconcilahle and do not credit him D. Alleged Threats and Discrimination Against Gary and Wayne Boring on September 26 After Gary, Wayne, and Vernon Boring left the union hall on September 25, they went to their attorney's office, and he spoke by telephone to Fred Gualtieri. That evening William Lawlor telephoned the home of Gary Boring and told Gary and Wayne that there was a breaching job for them with Rust Engineering at the Keystone Generating Station in Shelocta, Pennsylvania, but that there was no job available for Vernon. Lawlor told them to come to the union hall the next morning to get a referral slip before going to the jobsite. 27 The next morning Gary and Wayne Boring went to the union hall, and Lawlor made out referral slips for them. Wayne Boring asked what kind of work it would be, and Lawlor said that it would be the breaching or. the No. 2 stack. After they paid an administrative fee, Lawlor then asked them to execute checkoff authoriza- tions on behalf of Respondent. Both refused to sign, and Lawlor asked Wayne his reason. He replied that there were charges pending before the NLRB at that time, that the checkoff authorization was being questioned, that he felt that it was illegal, and that he would not sign. 2 Lawlor attempted to reach Fred Gualtieri by tele- phone and, after about an hour, Gualtieri called back. Lawlor explained to Gualtieri that Wayne and Gary would not sign the checkoff authorizations, and then put Wayne on the phone to speak to Gualtieri. Gualtieri told Wayne that he was tired of all the "bullshit," that they had bitched about paying the 20-cent social fund deduc- tion before, and that if they thought they were going to pay their dues some other way and not sign the card, he would refuse to send them out to work. Then Gualtieri said he would send them on a stack job on a 3-day job, but that it would be the last time that they would work near their home. After this conversation the Borings remained in Law- lor's office, and Gualtieri telephoned again to speak to Wayne. Gualtieri repeated much of what he had said before, mentioning also that they had run to the NLRB with their complaint about the social fund and that he was tired of the "bullshit" over 20 cents. Gualtieri again repeated that he could send them on a stack job and said that he was sending them on a job near their home and they were giving him a hard time. Wayne repeated that he would not sign the card and handed the telephone back to Lawlor. After Lawlor spoke for a few minutes, he gave the telephone to Gary. Gualtieri told Gary that he was tired of their running to the Board and of the money they were costing him over the 20 cents. Gual- tieri said that he would call his lawyer and file charges and that he had the same right to file charges as they did. Gary replied that Gualtieri could do what he thought was right and that he would do what he be- lieved was right. "7 Gary and Wayne Boring spoke separately to [.alor. Gary testified wlithtiul contradiction that lawlor told him thai the oh was on the breaching 2X Gary and Wayne Boring so testified without contradiction 761 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gualtieri then mentioned the job to which they were being referred and said that they were fighting over the checkoff authorizations, that they were running to the Board, and that he would send them on the job but that would be the last job around their home that they would get. After talking to Gary, Gualtieri again spoke to Wayne and told him that he was going to send him to the job but it would be the last time he would work close to home. Gualtieri also said that he would send to the job dues-checkoff cards that they had previously signed for other companies. 2 9 The Borings then left for the Keystone job and arrived there at lunchtime. When they started to work, they dis- covered that they were assigned to stack work and spe- cifically to hang rigging at the top of the stack which was 800 to 850 feet high. Breaching work is performed on a duct for air flow from a boiler to a stack and is usu- ally about 125 feet above ground level. Stack work is performed on the steel liner inside a stack at heights up to 850 feet. Stack work is more hazardous than breach- ing because of the swaying of the stack, which on the Keystone job had caused bolts and brackets to loosen. During the time the Borings were on the job there were five or six other boilermakers on the job also assigned to similar work. The Borings stayed on the job through the following day, and at the end of that day both quit. In their experience as boilermakers, neither of the Borings had ever done stack work before. Employees ordinarily have a right to refuse to sign a checkoff authorization for any reason at all, and any con- duct which coerces an employee in his attempt to exer- cise such right violates his Section 7 rights, whether en- gaged in by his employer or a union. 30 Here, when the Borings refused to sign the proffered checkoffs, L.awlor called Gualtieri who threatened variously that unless they signed the checkoffs he would not refer them at all, that he would not refer them to jobs near their homes, and that he would refer them to undesirable stack work. The threats were explicitly based not only on their refus- al to sign the checkoff authorizations but also on their previous filing of charges with the Board, also protected activity. These were all threats to retaliate against the 1 Wayne and G(ary Boring had previously signed checkoff aulhoriza tions )on which they crossed out references to the social fund hut had found that the deductions for the social fund were made [otwithstanlding. The findinigs as to these conversations between the Borings and I asslor and (;ualtieri are based on a composite of the testimony of Wayne and Gary Boring. Laswlor did not testify as to his conlversationis with them (Gualtieri first denied that he talked to the Borings about signing the cards Then after being remrlinded of Lawlor's call to him, Gualeltri testi- fied that he asked one of the Borings what part they refused to sign, that Boring replied that he did not want to sign for the social fund, and that Gualtieri said, "Okay. fine, scratch it out, and sign it," and that was all the conversation he had O coss-examination Gualtieri testified that the refusal to signl created bookkeeping problems for contractors but did not create any problems for Respondent i Gualtieri denied that he told lie Borings to sign the checkoff authorizations. Gualtieri also testified that he was excited in his telephone conversation with the Borinigs "as I always am." The unrebutted circumstances described by the Borings, the incon- sistencies in (Gualtieri's testiony as to this incident, and the general defi- ciencies in his testimony, as well as the lack iof plausibility that the excit- able Gualtieri spoke to the Borings so calmly or briefly persuade nme that his version cannot be credited 1s Jo-Jo Managemennt Corp., 225 NLRB 1133, 1143 (197), Iope Indurs- tries, Inc. 198 NLPB 853. 857 1972). enfd. 481 F2d 1399 (3d Cir 1973). Borings by impairing their employment opportunities. They were clearly coercive and violated Section 8(b)(l)(A) of the Act. With respect to the Keystone referral, the General Counsel contends that the assignment of the Borings to stack work was a direct implementation of Gualtieri's threat. The circumstances set forth above strongly sup- port an inference that, after his conversations with the Borings, Gualtieri caused the nature of their referral to change. Thus, before the issue over the checkoff authori- zations arose, Lawlor twice told the Borings that they were being referred for breaching work. Yet after Gual- tieri's extended coercive and unsuccessful effort to induce the Borings to sign the checkoff authorizations, the Borings were assigned to stack work, as Gualtieri had threatened, and Lawlor who referred them did not testify to explain the change. To be weighed against that inference is Gualtieri's uncorroborated testimony that he played no role in the referral and the evidence that all boilermakers on the job at the time the Borings were there performed stack work. As for Gualtieri's testimo- ny, I find his credibility both in general and as to his conversations with the Borings relating to this incident too impaired to credit his denial. As for the work availa- ble at Keystone, counsel for Respondent proposed to stipulate that the Borings worked in a crew of six who went to the top of the stack to rig the job which took more than 2 days but that there was other work which had to be done on the job as well as the rigging. He also asserted that the rigging was the only work done on the job for the first 2 days and that it had to be set up before the other work on the job could be done. However, no such stipulation incorporating these facts was reached, although there was a stipulation that there was breaching on the stack and the Borings testified that while they were at the jobsite all the boilermakers at the site per- formed stack work. Thus, it appears that, while counsel contended that no breaching work could be performed on the job until after the rigging was completed, the evi- dence establishes only that there was breaching work to be done on the job and that it was not done during the 2 days the Borings were on the job. In the absence of af- firmative evidence that breaching work could not be done until the rigging on the stack was completed or tes- timony from any representative of Rust Engineering to describe its request for boilermakers which resulted in the referral of the Borings, I find this evidence insuffi- cient to establish that there was no breaching work to be performed when the Borings arrived at the job or to overcome the inference that the nature of their referral was changed after Gualtieri's unsuccessful attempt to induce them to sign the checkoff authorizations. I find further that the change in the nature of their referral was caused by the refusal of the Borings to sign checkoff au- thorizations and their filing f charges and violated Sec- tion 8(b)(1)(A) and (2) of the Act. E. The Alleged Refusal bT Furnish Information On May 2, 1978, Wayne Boring sent the following letter to Business Manager Gualtieri: 762 INTERNATIONAL BROTHERHOOD OF BOILERMAKERS Would you please furnish me with a list of job referrals that were made after January 28, 1978, up to the present date, which is the date you receive this letter? I request that this information contain the follow- ing: a. Name of the person referred. b. What job he or she was referred to and its du- ration. c. Name of the Employer. d. The basis for each referral and how it was made. It is imperative that I recieve this information so that I may determine weather I have been discrimi- nated against in job referrals [sic]. Respondent did not reply to this request or furnish any reason to Boring for its failure to do so.3 t The General Counsel contends that Respondent's duty of fair representation includes the duty to deal fairly with an individual's request for information regarding the operation of a hiring hall, that Respondent's failure to supply Boring with the requested information, unsup- ported by any reason, was arbitrary, and that it therefore violated Section 8(b)(l)(A). The extent of a union's obligation to furnish hiring hall information or the form in which such information must be supplied need not be considered in this case, for here Respondent simply ignored Boring's request and made no effort to offer any means for Boring to obtain any of the information he sought. Only several months earlier, on December 18, 1977, Respondent had taken action which had the effect of preventing those who signed the out-of-work list from learning the identities of those who had signed the list before them by replacing the bound out-of-work book which applicants previously signed with separate sheets which were left out only for I day at a time. In a moment of candor Gualtieri conceded that the change was made because people were photograph- ing the lists and taking down the names of all those who signed the list. Despite his efforts to explain away that testimony, it is clear that by that action Respondent de- liberately sought to frustrate efforts of applicants to gain information about the operation of the referral system. Before the change in the form of the out-of-work list, several of the Charging Parties in this case, none of whom were members of Respondent, had filed other charges against Respondent. As found above, the evi- dence shows that, at the time the daily lists were substi- tuted for the book and at the time Wayne Boring re- quested information as to the operation of the hiring hall, Respondent was discriminating in referrals against the vast majority of nonmembers who sought to utilize its hiring hall and specifically was referring members who had not signed the out-of-work book ahead of non- 31 The only testimony of Gualtieri relating to his response to this letter came on examination by counsel for the Charging Parties when Gualtieri testified that he had received requests from individuals for copies of newsletters or specific information relating to the referral system He tes- tified that he gave them everything they requested except the newsletter because he could not send that to nonnembers. I His further testimony makes clear, however, that all he furnished to those who sought infiorma- tion were copies of the field construction agreement members who had. I find the inference warranted that Respondent refused to furnish any of the requested infor- mation to Wayne Boring because he was a nonmember of Respondent who had previously filed charges against Respondent and because Respondent desired to impede his effort to achieve his stated purpose of discovering whether he had been discriminated against. I find that Respondent thereby violated its obligation to deal fairly with Boring's request for information and thereby violat- ed Section 8(b)(1)(A) of the Act.3 2 IV. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the pur- poses of the Act. The complaint in this case alleges generally that Re- spondent discriminated in favor of applicants for employ- ment who were members of Respondent and against ap- plicants who were not members. It does not identify any alleged discriminatees. While the General Counsel intro- duced the available evidence as to order of referral and signing of the out-of-work list, the findings of discrimina- tion are by and large based on general evidence of favor- itism, with little evidence to establish specific acts of dis- crimination.33 The General Counsel contends that back- pay should be ordered for all nonmember applicants to be computed using the formula set forth in the Iron- workers series of cases.3 4 In those cases the Board found discrimination against certain named applicants for em- ployment as well as unnamed applicants similarly situ- ated whose identities were to be determined during the compliance stages of the proceedings. While the Board made no findings as to their identities, all the evidence necessary to that determination was before it, and the method of identifying the additional discriminatees was established by the findings as to the named discrimina- tees. Because of the complexity of any attempt to determine with any degree of certainty how much any individual applicant would have earned, the Board adopted a for- mula to determine the measure of earnings against which individual earnings of discriminatees were to be com- pared. Under that formula the total earnings for all those who worked within the respondent's jurisdiction were to be determined and divided by the total number of those who worked out of the respondent's union hall. The re- 3" Laborers' International Union of North America. Local 252. AFL-CIO (Seattle and Tacoma Chapters of the Associated General Contractors of America, Inc.), 233 NLRB 1358 (1977), see also Local No. 324. Interna- tional Union of Operating Engineers. AFL-CIO (Michigan Chapter. As.oci- ated General Contractors of America. Inc.), 226 NLRB 587 (1976). 3:1 In his brief the General Counsel cites as specific acts of discrimina- tion the refusal to refer Galen Boring in April at the hiring hall when he indicated that he had no union hook, the failure to refer John Kunkle after he signed the out-of-work book in January, and the fact that the doc-umentary evidence shows that dozens of members received multiple referrals without ever signing the out-of-work book while dozens of non- members received no referrals even though they signed the book more than once a' See fn 17, upra 763 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sultant figure was deemed to represent the average earn- ings which any discriminatee would have earned absent discrimination against him. The instant case presents a more formidable problem than that presented in the Ironworkers cases. Here not only is determination of a measure of earnings difficult, but there is also no identification of any discriminatees and no suggested method for determining which of those who signed the out-of-work list should be considered dis- criminatees and for what period. Some applicants, like John Kunklc, who were never referred, signed the out- of-work list only once, and his own testimony leaves in doubt the extent to which he was available for referral thereafter. While Galen Boring was denied referral for lack of a union book, this record does not establish whether or not others who signed the out-of-work list before the date of Boring's visit to the union hall should have been called and referred ahead of Galen Boring. Not all nonmembers who signed the out-of-work list in- dicated that they were qualified, and there is no evidence as to the continuing availability for employment of those who signed and were not referred. In Local No. 851, International Longshoremen's Associ- ation, AFL-CIO (West Gulf Maintenance Association), 194 NLRB 1027 (1972), the Board rejected a recommenda- tion to make whole named discriminatees and all other applicants for employment. Despite finding that the re- spondent had a general policy of a refusal to grant classi- fication cards to members of a certain local, the Board concluded that the record did not show that any mem- bers of the local other than the named discriminatees ap- plied for classification cards and were denied them or were in any other manner discriminated against so as to cause them a loss of earnings. In these circumstances, the Board deemed it "inadvisable to extend our make-whole remedies to include losses of earnings to unknown indi- viduals who were not named in the complaint and whose status as part of a group which was unlawfully deprived of work was not litigated during the course of the hear- ing." In other cases, the Board has found maintenance of discriminatory referral systems or operation of referral systems which generally breached a union's duty of fair representation without ordering backpay for any but named discriminatees, but it has not set forth a rationale for the omission or indicated that broader backpay was sought in those cases.3 5 On the other hand, in International Brotherhood of Boi- lermakers, Iron Ship Builders, Blacksmiths, Forgerm and Helpers, Local 101 (Stearns-Roger Corporation), 20)6 NLRB 30 (1973), the Board found a general practice of discrimination against nonmembers as well as discrimina- tion against a named discriminatee. There as here the union's records of referrals were neither accurate nor complete, and the number and identity of those harmed by the discriminatory practice could not be determined from them. Also there was no evidence as to the avail- 36 Eg., Pacific Maritime Association 184 NLRB 312 (1970), clnfd. 452 F.2d 8 (9th Cir. 1970) Local Union 99. nrenatwonul Brotherhood of Elec- trical Workers. AFL-CIO (Crawford Electric Construction Co.), 214 NLRB 723 (1974); Local 394. Laborers' International Union o .Vorth .4merca, AFL-CIO (Building Contractors Association of Vew Jersey, 247 NLRB No. 5 (1980). ability for employment of any but two of the nonmember applicants. Nonetheless the Board ordered that the named discriminatee and all nonmember applicants be made whole for any loss of earnings they may have suf- fered by reason of the discriminatory referral practice. It was left to the compliance stage of the proceeding to de- termine whether a nonmember applicant was available and qualified for referral on any particular date.3 6 In In- ternational Association of Bridge, Structural and Ornamen- tal Iron Workers, Local No. 433 (Associated General Con- tractors of California. Inc.), 228 NLRB 1420 (1977), the Board found that the union violated the Act by referring 76 applicants for employment out of turn and failing to dispatch 76 unnamed individuals who should have been dispatched. The Board ordered backpay, leaving it to be determined in the compliance stages of the proceeding which applicants would have filled the 76 jobs if con- tractual procedures had been followed. In so doing, the Board adopted the Decision of Administrative Law Judge Taplitz in which he stated: It may be that the General Counsel will be unable to identify which employees would have filled those jobs if the contractual hiring hall procedures had been followed. The General Counsel will have to show that those individuals were on the out-of- work list, were in the hiring hall when the job should have been announced, and met the other cri- teria for proper dispatch as is set forth in the con- tract. However, I believe that the General Counsel should have the opportunity to attempt to do so in a backpay proceeding. A wrong cognizable under the Act has been established. Seventy-six individuals have been discriminated against. To the extent that they have lost earnings and benefits because of that discrimination, they should be made whole.3 7 In enforcing the Board's Order, the Court of Appeals ap- proved deferral of the ientification of the discriminatees until the compliance stages of the proceeding, and reject- ed the notion that the difficulties the General Counsel might have in identifying discriminatees made an award of backpay any less appropriate. 8s There is some appeal to the approach represented by the Biggers case, supra, and those which fail to order backpay for general violations. The complexity and un- certainty of determining who suffered a loss of earnings because of discrimination virtually guarantees a protract- ed compliance investigation and a massive expenditure of resources and manpower with little basis for predicting the extent to which any individual discriminatees will benefit. It can be argued that devotion of a fraction of the effort to insuring future compliance with nondiscri- minatory hiring hall procedures will substantially remedy the proven violations, and that the deferral of identifica- tion of discriminatees to the compliance stages of the :b See also International Longhoremens and Warehousemen's Union, Local No. 13 (Pacific Maritime Association), 192 NLRB 260, 264 1(1971), cnifd. 549 F2d 1346h (9th Cir 1977) :'7 228 NLRB at 1440 41 .N'.I..R.B ,v Iron Wrkers. Local 433, 600 F.2d 770, 779 (9th Cir 1979) 764 INTERNATIONAL BROTHERHOOD ()F BOI.ERMAKERS proceeding in effect bifurcates the unfair labor practice proceeding and defers determination of essential elements until after initial findings have been made. Nonetheless, the decisions in Stearns-Roger and Associ- ated General Contractors of California, supra, indicate that it is present Board policy that the effort must be made at whatever the cost in order to provide a complete remedy for the generally discriminatory system shown to exist and that such deferral is appropriate. While Associ- ated General Contractors of California might be distin- guished on the grounds that all incidents of discrimina- tion were established, leaving much less uncertainty to be resolved in the compliance stages there than here, the reasoning adopted by the Board as well as the remedy ordered in Stearns-Roger make that distinction untenable. Accordingly, I shall recommend that Respondent be or- dered to make whole all nonmember applicants for any loss of earnings they may have suffered as a result of dis- crimination against them, leaving the identity of those who should receive backpay to be determined in the compliance stages of the proceeding. The further question remains as to whether any formu- la can be established at this point to simplify the compu- tation of backpay. The General Counsel urges that the formula utilized in the Ironworkers cases be utilized here. While it is tempting to approve the use of such a formula to simplify the compliance stages of the proceeding, there are differences between this case and those cases which make adoption of that formula at this stage of this proceeding unwise. There, although all instances of dis- crimination and the identity of all discriminatees were not found in the unfair labor practice proceeding, there were representative findings which provided a basis for developing a formula for backpay. Here, until there has been some determination of the identities and circum- stances of those who are to receive backpay, it would be premature to indulge in speculation as to the measure of earnings which might compensate them. Indeed, instead of one common class of discriminatees as in the Iron- workers cases, there may be several classes of non- members for whom different approaches may be indicat- ed depending upon qualifications, frequency of efforts to utilize Respondent's hiring hall, availability for employ- ment, possession of cards in Respondent's racks, and other factors. I therefore decline to adopt the proposed formula at this stage of this proceeding, but as in the usual case find that determination of the measure of backpay should be left for the compliance stages of this proceeding. Accordingly, I shall recommend that Respondent be ordered to make whole all nonmember applicants for any losses of earnings they may have suffered by reason of discrimination against them by Respondent commencing October 10, 1977, less net earnings, with interest to be computed in the manner provided in F W Woolworth Company, 90 NLRB 289 (1950); and Florida Steel Corpo- ration, 231 NLRB 651 (1977). In the light of Respondent's general deviation from contractual referral procedures, its failure to apply con- sistent objective standards, its failure to maintain records 39 See, generally Isis Plumbing & Itcaring Cio, 138 NIRI 71t (lh21 of referrals, its refusal to furnish information to appli- cants upon request, I shall also recommend that Re- spondent be required to keep and retain for a period of 2 years permanent written records of its hiring hall oper- ations, to make such records available to the Regional Director upon request, and to make such records availa- ble to nonmember applicants for purposes of inspection and copying at reasonable times and places. I shall fur- ther recommend that Respondent be required to submit to the Regional Director four quarterly reports concern- ing the referral of nonmember applicants. Upon the basis of the above findings of fact and the entire record in this case, I make the following: CONCI I!SIONS OF LAW 1. Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 2. Western Pennsylvania Service Contractors Associ- ation Boilermaker Employers Association of the Western Pennsylvania Area and their member-employers are em- ployers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 3. By discriminating against applicants for referral for employment under exclusive referral agreements because they are not members of Respondent or because of other arbitrary or invidious reasons Respondent has caused the employer-members of said Associations to discriminate against employees in violation of Section 8(a)(3) of the Act and has thereby engaged in unfair labor practices within the meaning of Sections 8b)(1)(A) and (2) and 2(6) and (7) of the Act 4. By conveying to an employee that access to the grievance procedure under Respondent's contracts with employers was restricted to Respondent's members, by refusing to accept his grievance, by denying nonmembers of Respondent an opportunity to sign Respondent's out- of-work book, by threatening to discriminate or discrimi- nating in referrals against employees because they re- fused to sign checkoff authorizations and because they had filed charges against Respondent, and by refusing to furnish hiring hall information to an employee because he was not a member of Respondent and had filed charges. Respondent has restrained and coerced employ- ees and engaged in unfair labor practices within the meaning of Sections 8(b)(1)(A) and 2(6) and (7) of the Act Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 0(c) of the Act, I hereby issue the following recommended: ORDER40 The Respondent, International Brotherhood of Boiler- makers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, Local Union No. 154, AFL-CIO, P'ittsburgh, 4- In the enml no extceptlorl, are filh- a . pros ided by Sec 102 4 of the Rulc and Regulatilon, o, tile Natlon.l I athor Relailon,s Board. Ihe findings. toniltlllions, alld recommiended Order herein shall, as provided in Sc 1112 4 of the R tiles Il d Rcglltlilis, c,- adl. pted h the Board and become its fiinding.. conclusions. and ()rdel. and all ohet illol th rctl shall be deemed aived fior all purpiocs 765 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pennsylvania, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause the employer-mem- bers of Western Pennsylvania Service Contractors Asso- ciation and Boilermaker Employers Association of West- ern Pennsylvania Area, or any other employer, to dis- criminate against any employee in violation of Section 8(a)(3) of the National Labor Relations Act because of lack of membership in Local 154 or for other arbitrary or invidious reasons. (b) Maintaining and operating its exclusive job-referral system without the use of objective criteria or standards or in a discriminatory manner. (c) Conveying to employees that access to grievance procedures under Local 154's collective-bargaining agreements is restricted to its members or refusing to accept grievances from nonmembers. (d) Threatening to discriminate or discriminating in re- ferral of applicants for employment pursuant to exclusive referral agreements because they refuse to sign checkoff authorizations or because they have filed charges against Local 154. (e) Failing or refusing to furnish information relating to the operation of Local 154's hiring hall to employees or applicants for employment because they are not mem- bers of Local 154 or because they have filed charges against Local 154. (f) In any other manner restraining or coercing em- ployees or applicants for employment in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. 2. Take the following affirmative action necessary to effectuate the purposes of the Act: (a) Keep and retain for a period of 2 years from the date of this Order permanent written records of its hiring and referral operations which will be adequate to dis- close fully the basis on which each referral is made and, upon the request of the Regional Director for Region 6 or his agents, make available for inspection, at all reason- able times, any records relating in any way to the hiring and referral system. (b) Submit four quarterly reports to the Regional Di- rector, due 10 days after the close of each calendar quar- ter, subsequent to the issuance of this Decision, concern- ing the employment of nonmember applicants. Such re- ports shall include the date and number of job applica- tions made to Respondent, the date and number of actual job referrals by Respondent, and the length of such em- ployment during such quarter period. (c) Place the referral registers, for a period of 2 years, on a table or ledge in the hiring hall for easy access and inspection by the applicants as a matter of right, upon the completion of each day's entries in such registers. (d) Make whole each of the nonmember applicants for any loss of earnings they may have suffered by reason of the discrimination practiced against them, in the manner set forth in the section of this Decision entitled "The Remedy." (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all re- cords, reports, work lists, and other documents necessary to analyze the amounts of backpay due under the terms of this Order. (f) Post at all places where notices to employees, appli- cants for referral, and members are posted copies of the attached notice marked "Appendix."4 ' Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by Respondent's repre- sentative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (g) Notify the Regional Director for Region 6, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 4 In the event that 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 National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 766