Boilermakers, Local 101

National Labor Relations Board - Board Decisions

Sep 18, 1973

206 N.L.R.B. 30 (N.L.R.B. 1973)

30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Boilermakers, Iron Ship officers, agents, and representatives,'shall take the ac-
,Builders, Blacksmiths , Forgers and Helpers, Local tion set forth in the said recommended Order.
101 (Stearns-Roger Corporation) and Samuel Stod-
dard. Case 27-CB-700
September 18, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND
PENELLO
On April 13, 1973, Administrative Law Judge
James R. Webster issued the attached Decision in this
proceeding. Thereafter, the Respondent Union filed
exceptions and a supporting brief, and the General
Counsel filed cross-exceptions and a brief in support
of the Administrative Law Judge's Decision and in
support of his cross-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, findings,' and
conclusions 2 of the Administrative Law Judge and to
adopt his recommended Order .3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, International Brotherhood
of Boilermakers, Iron Ship Builders, Blacksmiths,
Forgers and Helpers, Local 101, Denver, Colorado, its
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to overrule
an Administrative Law Judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544,
enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record
and find no basis for reversing his findings
2 Respondent takes the position in its exceptions and brief that it was
denied due process in that amendments made to the complaint at the hearing
were totally outside the scope of the charge filed, and were, therefore , beyond
the statutory jurisdiction of the Board to consider because the amendments
had the ultimate effect of changing the specific charge of discrimination
against a single individual into a "class action" without adequate notice to
Respondent of the specifics of any such charge so as to enable Respondent
fairly to meet the charge . We find this position without merit in view of the
fact that Respondent concedes that it suffered no surprise and the hearing
was continued from September 21, 1972, to October 24 , 1972, so that Respon-
dent could more adequately prepare its defense.
3 Nothing in this Decision precludes the General Counsel from estab-
lishing in the compliance portion of this proceeding that there are additional
individuals whom Respondent has caused discrimination against and who
are entitled to a remedy under the terms of this Order.
DECISION
STATEMENT OF THE CASE
JAMES RICE WEBSTER, Administrative Law Judge: This
case was heard in Denver, Colorado, on September 19, 20,
21, and October 24, 25, and 27, 1972. The complaint was
issued on August 2, 1972, and amended at the hearing on
charges filed June 12, 1972. The complaint alleges that Re-
spondent has operated an exclusive hiring hall in a discrimi-
natory manner since on or about December 12, 1971,
thereby discriminating against Samuel Stoddard and other
nonmembers , of Respondent, and that Respondent has
thereby violated Section 8(b)(1)(A) and 8(b)(2) of the Na-
tional Labor Relations Act, as amended, herein called the
Act.
Briefs have been filed by the General Counsel and the
Respondent, and these have been carefully considered. Mo-
tion to correct transcript dated October 24, 1972, and filed
by counsel for General Counsel is granted. Upon the entire
record, including my observation of the demeanor of the
witnesses, I hereby make the following:
FINDINGS OF FACT
I JURISDICTION
Stearns-Roger Corporation is a Colorado corporation
which annually purchases and receives goods and materials
valued in excess of $50 ,000 from points outside the State of
Colorado. Babcock and Wilcox Company, Delta Mechani-
cal Contractors, Inc., and Lower and Cool, Inc., are corpo-
rations doing business in the State of Colorado and during
the past calendar year purchased goods or services from
outside the State of Colorado equal to or exceeding $50,000
in value.
The following corporations doing business in the State of
Colorado had sales or performed services equal or exceed-
ing $50,000, to customers outside the State of Colorado dur-
ing the past calendar year:
Ramsey Engineering Co.
Ceco, Inc.
New England Lead Burning Co., Inc.
Swinerton & Walberg -
Chicago Bridge & Iron Company
Koppers Company, Inc. Engineering & Construc-
tion Division
Fluor Utah, Inc.
C F & I Fabricators of Colorado
Delaual Turbine Inc., Deltex Div.
(referred to in record as Ashley Hickem)
Pittsburgh-Des Moines Steel Company
(referred to in record as P. D. M. Corporation)
Inseco, Inc.
Rafcon Industries, Inc.
Combusion Engineering, Inc.
(referred to in the record as C. E.)
206 NLRB No. 5
BOILERMAKERS , LOCAL 101 31
State, Inc.
Jeffco Steel Fabricators, Inc.
Jelco Incorporated
Tray Installation & Inspection Corp.
Ebasco Services is a member of the Associated General
Contractors of Colorado, which is an association and en-
gages in collective bargaining on behalf of its members.
I find that each of the above-named companies are en-
gaged in commerce or in operations affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
n. THE LABOR ORGANIZATION INVOLVED
days and 2 hour. He again registered for employment at
Respondent's hiring hall on April 7, 1972. On May 3, 1972,
he was referred to a job in Denver , Colorado, 'which job
lasted 2 weeks and 3 days . He again registered for employ-
ment on May 19, 1972 . He received no further referrals and
left the area on June 19 , 1972, for employment in Rawlins,
Wyoming . He worked on this job until about the middle of
July 1972. He returned to Denver but did not again sign
Respondent 's out-of-work list. His next job started on Au-
gust 1, 1972, in Rock Springs (state not given) and he was
still working on this job at time of hearing in September
1972.
International Brotherhood of Boilermakers, Iron Ship
Builders, Blacksmiths, Forgers and Helpers, Local 101,
herein referred to as Respondent or the Union, is a labor
organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES I
A. Prefatory Statement and Issues
The issue in this case is whether or not Respondent oper-
ated its exclusive hiring arrangement in a discriminatory
manner at all or any times following December 12, 1971,
thereby denying employment to Samuel Stoddard and
others.
Respondent has about 800 members , of whom about 650
are employed in shops where job turnover is relatively light.
The remaining 150 are employed in field construction work
where periods of employment are usually counted in days,
weeks, or months . It is the field construction work that is
involved in this hearing.
The field construction employees are divided into two
categories : (1) primary or qualified men; those who have
demonstrated by passing a competency test or by serving an
apprenticeship or by 4 years of actual practical experience
that they are qualified for this category; (2) secondary or
manpower men ; this category includes all others who are
proficient in any or several of the classifications in the boil-
ermaker trade, being riggers, welders, boilermakers , layer-
outers, etc. Skills and competence in this category will vary.
Men in the primary category are given preferential referral
and there is no contention of discrimination in this respect.
The contention is that Respondent has discriminated
against nonmembers in the referral of men from the second-
ary or manpower out-of-work lists.
Sam Stoddard , a member of the Ironworkers Local
Union in Casper, Wyoming, was in the Denver area in
August of 1971. He signed Respondent 's secondary or man-
power out-of-work list and obtained employment. He
signed the list again on November 5, 1971 . From that date
until April 3, 1972 , he received no referral for employment,
although he reported in almost daily, except for two short
periods of work he obtained through the Ironworkers
Union : November 15 to 20,1971, and March 13 to 20,1972.
On April 3, 1972, he was referred to a job by Respondent
in Cheyenne, Wyoming, on a night shift , and worked for 4
1 All dates herein are in 1971 (November-December) and 1972 (January-
June) unless otherwise specified.
B. The Exclusive Hiring Arrangement
Respondent and the employers listed above in paragraph
I and other employers are parties to a collective-bargaining
agreement containing the following exclusive hiring hall
provisions:
EXCLUSIVE REFERRAL OF MEN
Section 1. Exclusive Referral
(a) The Employer shall, under the terms of this Ap-
pendix, request the Union to furnish all competent and
qualified field construction boilermakers, boilermaker
helpers and boilermaker apprentices. The Employer in
requesting the Union to furnish such applicants, shall
notify the Union either in writing or by telephone,
stating the location, starting time, approximate dura-
tion 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-
tion for applicants within forty-eight (48) hours, the
Employer may employ applicants from any other avail-
able source.
Section 2. Registration
The local union shall establish and maintain an ap-
propriate registration facility for qualified construction
boilermakers, helpers, and apprentices available for
employment. Applicants shall be registered on the ap-
propriate out-of-work list for each classification in the
order of time and date of registration. Each applicant
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 regis-
tration as shall be submitted to him. Applicants shall
also list any special skills that they possess.
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 or-
der to maintain their place on the out-of-work list.
Section 3. (Omitted, as it refers to category of boiler-
makers not involved herein.)
Section 4. Referral of Men
Upon the request of the Employer for foremen , assis-
tant foremen, boilermakers, boilermaker helpers of
boilermaker apprentices, the Union shall immediately
refer competent and qualified registrants to the Em-
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer in sufficient number required , in the manner
and under the conditions set forth in this Appendix,
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
foremen shall be honored without regard to the re-
quested man's place on the out-of-work list.
2. Bona fide requests by the Employer for boiler-
makers with speciallskills and abilities will be honored,
and persons possessing such skills 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 appealable to the
Joint Referral Committee, as hereinafter provided.
Section 5 . Nondiscriminatory Referral
The Union and the Employer agree that the referral
of construction boilermakers , helpers and apprentices
shall be on the following basis:
(a) Selection of applicants for referral shall be on a
nondiscriminatory basis and in accordance with the
President's Executive Order 10925, as amended, and
Title VII of the Civil Rights Act of 1964 and shall not
be based on or in any way affected by union member-
ship , by-laws, rules , regulations , constitutional provi-
sions , or any other aspect or obligation of union
.membership, 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 applicants for em-
ployment are customarily posted all provisions relating
to the functioning of the referral provisions of this Ap-
pendix.
C. Respondent's Out-of-Work Lists and Referral Records
At all times material herein , Respondent maintained an
out-of-work book for its members and other persons who
wished referral to employment through its hiring hall. This
book is divided into sections-a section for men who are in
the qualified or primary category , a section for men in the
manpower or secondary category , and a section for shop
men. -
When job referral requests were received by Respondent,
unemployed persons on the primary list were given first
consideration for referral. This list also included men classi-
fied as apprentice. During certain periods of time involved
herein, the manpower list was separated into two lists-one
for members of Respondent , and the other for persons who
were not members of Respondent , called boomers. Included
among the boomers were employees who were members of
other locals of the Boilermakers Union and employees who
were members of other unions such as the Ironworkers;
most of these men were from other states and had tempo-
rary residences in Colorado while seeking employment
through Respondent.
When an employer would call Respondent for workmen,
a form called a job referral request was completed by an
agent of Respondent showing the name and address of the
employer, location of the job , date of order, reporting date,
length of job, classifications of men ordered , and comments.
It also had space for a listing of the men selected for dis-
patch, a space for listing of those who refused referral and
a space for listing of men who could not be contacted.
When dispatched, a yellow form referred to as a work
order was given to each employee . The fact that this has
been done is usually noted on the job referral requests form
by placing the initials "w.o." beside the name of each man
referred ; however, this was not always done . Not all men
thus referred were employed , as some failed welding tests
that were given on some jobs. This fact was usually noted
on the job referral request form , but not always.
The persons in Respondent 's office who generally han-,
died the referral requests and the selection of persons for
referral were Business Agents Sam Hurst and Don Lacefield
and Marie Carlson , a secretary. Carlson handled about 50
percent of the referrals, Lacefield about 35 percent and
Hurst about 15 percent.
Pasted in the front of the out-of-work book was a copy
of "rules" governing the operation of the referral system.
They are quoted , as follows:
A. When out of work, appear in person to register
unless your permanent address is outside a 30 mile
radius from the office . Availability for work must be
reconfirmed every two weeks . You must be available
on call within a four (4) hour period. If you cannot be
contacted for three successive job, your name will be
removed from the list . You must then register again.
B. A job may not be refused for other than personal
or compelling reasons such as sickness in the immedi-
ate family or vacations, which must be stated on list
before being called. For these reasons, you will not gain
on the list, if you are five down you will remain five
down until you contact the office . You must sign the
vacation and sick list with date and time when you are
not available for work and the same when you are
available.
C. On tanks: A man will not lose his place on the
list, does not have to take job, and will move up on list
if working on tanks. '
D. A man with less than eighty (80) hours of work
will advance on list , after he has accumulated eighty
(80) hours will go to bottom of list.
E. If a man quits a job , he will go to the bottom of
the list.
F. If a man takes a work order and does not report
to job at starting time, he must call the office within
four (4) hours or he will go to bottom of list.
G. If discharged, a man will go to bottom of list If
discharged from two successive jobs, for just and suffi-
cient cause, he will be removed from list for three (3)
months.
These rules were not strictly followed . Carlson testified
that tley did not remove a man's name from the list for
failing Lo report in every 2 weeks, until they tried to call him
for employment and could not locate him . Also the keeping
of the out-of-work lists and the completion of the job refer-
ral requests left much to be desired . Often the dates of
sign-in is not shown. The reasons for scratching through a
name is not shown. The spaces on the job referral request
forms to show names of men who could not be contacted
BOILERMAKERS , LOCAL 101 33
was seldom completed, and other spaces on the forms were
not always completed. A checkmark under "length of job"
indicated a job of 2 weeks or longer.
Periodically, the out-of-work lists were replaced with new
lists . As time passed and many referrals made, the out-of-
work lists would have many names scratched out, to where
it was difficult to use the list. A new list would be started
by the typing of all names of men from the old list that had
not been scratched through. Thereafter, until a new list was
again started, men would sign their names in the next avail-
able spaces below the typed names. The need to start a new
list arose more frequently in the handling of the qualified or
primary list, as these were the men most frequently referred.
The primary or qualified list was retyped on November
8, 1971, January 25, 1972, February 29, 1972, March 17,
1972, April 5,1972, and June 1, 1972. The manpower out-of-
work list was retyped on November 9, 1971, Aprils, 1972,
and June 1, 1972. When the manpower list was retyped on
November 9, 1971, the names of unreferred members of
Respondent were listed first and the names of unreferred
boomers were listed next. This was pursuant to instructions
given by Business Agent Hurst to secretary Carlson. From
November 9, 1971, to April 5, 1972, persons seeking em-
ployment, both members of Respondent and boomers,
signed their names in the next available spaces below the
typed names of boomers.
In the spring of 1972, as work began to pick up, there was
an influx of boomers into the Denver area seeking employ-
ment. Over 40 boomers signed the list for employment dur-
ing the period from March 20, 1972, through April 3, 1972;
many of these gave telephone numbers outside the Denver
area and in some instances, outside the State of Colorado.
On April 5, 1972, Respondent started a new list for men "in
The Denver area." This list was exclusively for nonmembers
or boomers. On the boomer list started Aprils, 1972, there
was no typing of names of men who had signed previous to
this date. Some of the boomers who had signed the out-of-
work list prior to this date were called and told that they
must resign; others, no doubt, discovered this fact when
they returned to the union hall seeking employment.
On April 5, 1972, another list was set up by Respondent
for its members. This list began with the typing of the names
of members of Respondent from the existing list who had
not been referred. There are 11 names typed on this list.
Following the typing of these names on April 5, 1972, mem-
bers of Respondent seeking employment through the man-
power list signed their names on this list in the next available
spaces.2
2 This list of union members is not dated for those signing in before May
15, and there is some question as to when it was typed and when it was first
used. I find that it was typed on April 5, 1972, based primarily on the fact
that on this date a new and exclusive boomer list was started for persons in
the secondary or manpower category, and the testimony that the manpower
list that existed prior to April 5, 1972, was removed from the out-of-work
book and placed on a filing cabinet in Respondent 's office and was no longer
used except to check on telephone numbers of persons on the current lists.
Furthermore, B. A. Lacefield testified that sometime in April 1972 B. A.
Burst decided to keep separate lists.
The counsel for General Counsel contends that there are missing pages in
the manpower list covering the period from November 9 to April 5, particu-
larly at the end of the list and Barbara Pipes expressed the same opinion-
even suggesting-that about. 10 pages are missing; but an examination of the
The separation of the lists was pursuant to instructions
from Business Agent Hurst who stated to Pipes that "if we
split the secondary list and put the 101 men on one list and
the boomers on another list, since we have such an overload
of people, it will be easier to keep track of our own men."
On June 1, 1972, the manpower lists were retyped-one
list for members of Respondent and another list for boom-
ers. Each list began with a typing of the names of 101
members or boomers, respectively, whose names had not
been lined through on the existing list. Following June 1, the
members of Respondent signed the 101 list and boomers
signed the boomer list in the next available spaces.
D. Testimony of Secretary Barbara Pipes
Barbara Pipes was employed by Respondent as an office
secretary for a little over 2 years; she was terminated on July
14, 1972. Pipes worked at a desk directly behind that of
Marie Carlson. They were the only two persons in the outer
office. Business Agents Hurst and Lacefield occupied a sep-
arate office. It was not one of Pipes' duties to handle the
selection of men for referrals to jobs, but she was asked on
occasion to call and notify men of referrals and was given
a list of names for this purpose. She retyped the out-of-work
lists on June 1, 1972. From May 20 to June 4, Carlson was
on vacation; during this period Pipes handled the referrals
of men on four orders. She testified that in selecting men for
these referrals she "went directly down the list, first name
I came to, if they wanted the job they got the job according
to the way the orders came in, with the exception of the one
order," on which all but one man was requested by name;
that she used only the 101 manpower list because the prima-
ry list was clean; she did not exhaust the names on the 101
list, therefore she did not even look at the boomer list,
except for the boomers requested by name on the one order.
She testified that "you take one list at a time until they're
cleared is the way you're supposed to do it"; that is the way
everybody else did it." Her instructions were "to go straight
down the list when I dispatched, if I ever had to dispatch";
and "take care of our own men first and then we'll worry
about boomers." She was told this by Business Agent Hurst.,
During the vacation period of Carlson from May 20 to
June 4, 10 orders or job referral requests were received by
Respondent. The four that Pipes handled and a review of
the out-of-work lists for that period are as follows:
On May 24, 1972, at 3 p.m., Pipes received a request from
State, Inc., for one boilermaker to report to work on May
25, 1972, for a job of approximately 3 weeks. She dispatched
Monty Steele, a member of Respondent, who signed the 101
out-of-work list on May 19, 1972.
As previously mentioned, Pipes testified that in selecting
men for dispatch, she went right down the list. A review of
documents does not support this contention . The last dated entry on the
November 9 to April 5 list is April 3, 1972; the first date on the new list is
April 5, 1972. On April 3, 8 persons signed , 14 or 15 signed on April 5, and
most of these were resigners . If any signed on April 4, the old list was
abandoned after April 4 and the new April 5 list controlled referrals; thus,
if any persons signed in on April 4 and if there were a page missing for that
date, it would have little if any significance to the issues and/or remedy
involved herein. I am satisfied that there is in evidence all of the manpower
out-of-work records in the possession of Respondent and that there has been
no intent to conceal or lose records.
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the out-of-work lists, however, shows that on the 101 list
there are seven or eight names ahead of.that of Monty Steele
which are not scratched through. There is no notation or
explanation on the records themselves to explain the cir-
cumstances or reasons for the skipping of these names. But,
Pipes explained from her recollection that the skipped em-
ployees could either not be contacted or were being consid-
ered for shop jobs, or were out of town; that one skipped
employee, Les Rogers, was a boomer and inadvertently in-
cluded on the 101 out-of-work list.
Although Pipes testified that the primary or qualified list
was "clean," yet it contains names that are not scratched
out, and there is no explanation for the skipping of these
names.
Since there is no notation beside some names of vacation
or illness or assignment to a "tank" job, it might be assumed
that they were employed on jobs of less than 80 hours and
therefore would not lose their places on the out-of-work list;
yet a review of the job referral records and dispatch slips for
the period of May 5 to May 24 fails to show any of them
to have been dispatched to such jobs or any job. The un-
scratched out names on the primary list with no explanation
are the following:
Joe Poison, signed in May 5
Carl Schaefer, signed in May 2
Bill Talbot, signed in April 6
Darrel Steele, signed in April 6
Bill Parker, signed in before April 5
The following unscratched out names on the primary list
had explanations as follows:
Richard Hardesty, signed in May 22-No explana-
tion,on the out-of-work list, but job referral request
of May 23 shows that he could not be contacted.
Bill Maurice, signed in May 5-vacation.
Paul Amos, signed in May 3-sick, S.E.H.
Pete Phillips,_ signed in April 28-32 hours with B.
& W. Also, job referral request received May 9 states
that he could not be contacted and was out of town.
Bill Thornton, signed in April 27-vacation.
James Henley, signed in before April 5-telephone
number wrong.
Amos Sinley, signed in before April 5-on tank job.
The above reference to the primary out-of-work list is set
forth as an example of the incompleteness of the referral
records and the futility of using them to determine accurate-
ly one's eligibility for referral. The primary list was used for
this example as there is no contention of discrimination in
its use.
At the time Pipes selected Monty Steele for dispatch on
May 24, the boomer out-of-work list contained the names
of a number of men who had signed the list prior to Monty
Steele and who had not been dispatched. But Pipes made no
effort to contact any of these men for this job-because the
101 manpower list had not been exhausted.
On June 1, 1972, Pipes received a request for workmen
from Babcock and Wilcox in Colorado Springs. The request
was for five certified heliarc welder and two riggers. The
request order shows that the employer specifically asked for
four persons by name; but Pipes testified that all were spe-
cifically requested with the exception of Larry Veggeberg.
The union procedure permits the dispatch of one specifical-
ly requested, irrespective of his position on the out-of-work
list. Pipes selected Larry Veggeberg as one of the riggers.
Veggeberg signed the 101 out-of-work list on May 19, 1972,
the same day that Monty Steele signed the out-of-work list.
On June 1, 1972, there were names of other men who had
signed the 101 list prior to, Larry Veggeberg and are not
shown to have been dispatched. There is no explanation on
any of the records of the Union to explain why these names
were skipped. Thus, as previously mentioned, the records
alone do not reveal the basis for the selection or for the
skipping of men for referral. Of course, men on the out-of-
work list who are not qualified for classifications requested
may be skipped.
On June 2, Pipes handled an order from Stearns-Roger
Company for three boilermakers and two high riggers for its
Cherokee job in Denver, Colorado. The job was estimated
for 2 weeks or more. On the order form, Pipes shows that
she was unable to contact Pete Phillips, Carl Schafer, Fred
Clark, Albert Page, and Jerome Hein. She dispatched James
R. Rainer, Joe Polson, and Tony Lopez for the boilermakers
and Richard Hardesty and Jim Martin for the high riggers.
All were from the primary list with the exception of Martin;
Martin, a 101 member, signed the 101 out-of-work list on
May 22. Pipes testified that the reason she picked Martin for
this order and skipped a number of other names on the 101
out-of-work list was because the order was for high riggers;
she knew Martin worked high; therefore she selected him
for the job. Of the men Pipes was unable to contact, the first
three were on the qualified list and the other two were
among the first names on the 101 out-of-work list.
Also on June 2, Pipes handled another request from
Stearns-Roger for four boilermakers for a joh of 1 week at
the Shadia Chemical Company. Owen Funk, Henry Wyatt,
Frank Tammen, and Cliff Robbins were selected for the
job. Pipes testified that the request was for men that had
previously worked for Stearns-Roger on this job. Pipes
found the names of Funk, Wyatt, and Tammen, all 101
members, who had previously worked on this job. Business
Agent Hurst selected the fourth man, Robbins, from the 101
out-of-work list.
E. Respondent's Refusals to Refer Sam Stoddard
As previously mentioned, Stoddard signed Respondent's
out-of-work list on November 5, 1971, and was not referred
to employment until April 3, 1972. Stoddard checked with
Respondent for employment repeatedly during this period
except for two periods when he obtained work through the
Ironworkers Union. From November 15 to 20, 1971, and
from March 13 to 20, 1972, he was employed on jobs he
obtained through the Ironworkers Union.
Stoddard was qualified to do the work of a certified arc
welder, having passed a test in October 1971; he was also
qualified for the classifications of boilermaker and rigger.
He was not a heliarc or inert gas welder, a layerouter, a tube
roller, a rubber liner, or a high rigger. Some employers
required arc welders to pass special tests which Stoddard
may or may not have been qualified to perform. Although
Stoddard is a rigger, he is not shown to have had any experi-
ence as a high rigger, one who works 200 or more feet above
the ground. Some men specialize in this classification.
BOILERMAKERS , LOCAL 101 35
I have elsewhere indicated that the records of Respon-
dent on their face do not explain the skipping of names in
the referral of men and are incomplete in this respect. How-
ever, Stoddard testified as to his availability for referral, and
as to him there is no need to speculate on matters left
unresolved by the incompleteness and inadequacies of
Respondent's referral records. Respondent's records show
that between November 5, 1971, and April 3, 1972, Respon-
dent referred the following men who signed the manpower
out-of-work list after Stoddard to jobs that Stoddard was
qualified to perform.3 (The following list does not include
names on the job referral request forms that are not shown
to have been given a work order, "w.o.," for the job, al-
though as I have elsewhere noted, the absence of the initials
"w.o." beside a name does not always mean the man was
not referred.)
The Period of November 5 to April 3
(1) On January 14, Respondent received a request from
Stearns-Roger Company to send two foremen, eight boiler-
makers, and four arc welders to a job in Grand Valley,
Colorado, to report on January 17. Either on the same day
or a day or so later, another request was received for four
more boilermakers and four more arc welders. Included
among the men referred to this job were the following men
who signed the manpower out-of-work list after Stoddard:
Cliff Robbins, a 101 member
Archie Molton, a boomer and member of the Na-
tional Tank Maintenance Union of the Boilermakers
Union
Jim Martin, a 101 member
Joe Smith, a 101 member
Henry Wyatt, a 101 member.
All others referred to this job were either from the primary
list or had signed the manpower out-of-work list before
Stoddard. The name of Archie Molton is listed four spaces
below that of Stoddard in the typed names of boomers on
the manpower out-of-work list. On the same referral request
form appears the name of Oscar Molton, who was referred
from the primary list.
Regarding this job in Grand Valley, Stoddard and anoth-
er ironworker, Arnold Smith, talked with Business Agent
Lacefield about referrals. Lacefield told them to come back
later in the morning and get work orders for this job. They
did so and then were told by Marie Carlson that she had
sent' boilermakers to the job. Stoddard told her, "I thought
we were supposed to be next on the list. Didn't Lacefield tell
you?" She replied that Business Agent Hurst told her to
send boilermakers. Yet I note that one boomer was included
in the dispatch.
3 As previously mentioned, the November 9, 1971, to April 5, 1972, man-
power out-of-work list contains first the typed names of 101 members who
signed in before November 9, 1971; next the typed names of boomers who
signed in before November 9, 1971; and thereafter the names of members
and boomers are mixed in order of sign in. The typed names, except for that
of Dale Simmering and Bobby Cooper, are not dated; these are dated No-
vember 8. Therefore, all typed names of 101 members that appear after these
names signed in after November 8. Stoddard testified that he signed in on
November 5; all boomers whose names appear after his were signed after that
date.
As to whether or not Arnold Smith was bypassed in the
selection of men for referral to this job cannot be ascer-
tained from the records in view of the absence of dates of
sign in. All typed names are necessarily of men who signed
the list prior to November 9, 1971. All men from the man-
power list dispatched to this job were men whose names
were typed. Smith's name is near the end of the typed boom-
er names . His name is well below that of Archie Molton.
Smith did not testify.
(2) On January 19, 1972, Respondent received a request
from Chicago Bridge & Iron Company for three arc welders
on a job 4 miles south of Trinidad, Colorado. On a previous
request from this company the request had been for welders
with current papers issued by this company; this require-
ment does not appear on this job referral request. Two of
the three men dispatched, Mahlon Rade and Doug White,
signed the manpower out-of-work list after Stoddard. Both
are members of Respondent. White signed the out-of-work
list on November 8 or 9; Rade signed the list on December
22. The other man dispatched, Dorman Kadmas, was from
the primary list, although he inadvertently signed the man-
power list on December 22, 1971.
Although the job with Chicago Bridge & Iron Company
was estimated for 2 to 3 weeks, yet the name of Mahlon
Rade is not scratched through on the out-of-work list, which
is further indicia of the unreliability of Respondent's re-
cords in determining one's position on the out-of-work list.
(3) On January 19, 1972, Respondent received a request
from Stearns-Roger for two arc welders to take a test for
employment in Pueblo, Colorado; employment estimated
for 1 year. Respondent dispatched a man from the primary
list and Gary Davis, a member of Local 101, who signed the
manpower out-of-work list on November 19, 1971.
(4) On February 17, 1972, Lower and Cool Company
requested a foreman , a boilermaker, and an arc welder for
a job in Glenrock, Wyoming. Respondent 's practice is to
send boomers who reside in Wyoming to jobs in that state.
Victor Clanin, a boomer who signed the manpower out-of-
work list on December 27, 1971, was so dispatched. Howev-
er, for the other employee, Respondent dispatched Mark
Nagel, a member of Local 101 who signed the man power
out-of-work list on November 12, 1971, 7 days after Stod-
dard.
(5) On February 28, 1972, Respondent dispatched Doug-
las White to a job in Pueblo, Colorado. White, a 101 mem-
ber, signed the out-of-work list on November 8 or 9, 1971.
(6) On February 29, 1972, at 8:50 a.m., Respondent re-
ceived a request from Taylor Construction Company for
one certified arc welder to be dispatched as soon as possible.
Dale Simmering, a member of Local 101, was dispatched.
Simmering had signed the out-of-work list on November 8,
1971; he had been dispatched on December 27, 1971, to a
job with Chicago Bridge & Iron Company and was still on
this job on January 19, 1972, on which date he is shown on
a request form from this company as a foreman. According
to the rules his name signed in November 8 should have
been removed from the list. He did not sign the out-of-work
list again prior to his dispatch to Taylor Construction Com-
pany. In view of the fact that the request was for a welder
to report "as soon as possible," it is possible that he was
there on the spot when the order came in.
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(7) Pursuant to a request received-March 1, 1972, from
Fluor Utah Company for two boilermakers, Respondent
dispatched a man from its primary list and Jerry Lee, a 101
member who signed the manpower out-of-work list on No-
vember 22, 1971.
(8) Pursuant to a request received March 8, 1972, from
Ramsey Engineering Company for a foreman and three
boilermakers, Respondent dispatched Mark Nagel, a 101
member who signed the manpower out-of-work list on No-
vember 12, 1971. (Nagel had previously been dispatched on
February 17 to a job in Wyoming.)
(9) Pursuant to a request received March 9, 1972, from
Fluor Utah Company for two boilermakers, Respondent
dispatched Nathan Younger, a 101 member who signed the
manpower out-of-work list on January 26, 1972.
(10) Pursuant to a request received March 10, 1972, from
Hermit Mfg. Co. for one certified are welder to take a test,
the request form shows that work orders were given to four
men, two of whom were below Stoddard on the manpower
out-of-work list: Edwin Penna, a 101 member who signed
the list on March 1, 1972, and Mark Nagel, a 101 member
who signed it on November 12, 1971. (Another illustration
of the unreliability of these records of Respondent is that
Nagel was also shown to have been dispatched to Ramsey
Engineering Company-per request form received March 8.)
As previously mentioned, Stoddard was employed from
March 13 to 20, 1972, therefore not available for dispatch
through Respondent's hiring hall during this period. The job
request forms, however, do not record any effort to contact
Stoddard. During this period, Respondent dispatched two
101 members (Lloyd Seaton and Matt Toniolli, Seaton
twice) and four boomers (John Komar, Larry Maddox,
Robert Wieneche, and Joe Williamson), all of whom signed
the manpower out-of-work list after Stoddard.
(11) On March 22, 1972, Respondent dispatched Jack
Harkness, a 101 member, to the Stearns-Roger job in Pueb-
lo, Colorado. Harkness signed the out-of-work list March 7,
1972.
(12) On March 22, 1972, Respondent received a request
from Certified Welding Company for 35 boilermakers for
work at a Husky Oil Refinery in Cheyenne, Wyoming, 24
of them for night work. Over half of the men dispatched
were below Stoddard on the manpower out-of-work list or
were not on any out-of-work list, as follows:
101 members:
David Gray, signed list February 28, 1972
Merlin Woerpel, not on list prior to this job
George Cummings, not on list prior to this job
Mike, Cassados, not on list prior to this job
Don Rivera, signed list March 2, 1972.
boomers:
Cliff Knight, not on list prior to this job.'
Jim Faulkner, not on list prior to this job
Ed Haddix, not on list prior to this job
Dick Stanley, not on list prior to this job
Bill Allinger, not on list prior to this job
Robert Huff, signed list March 9, 1972
Victor Allinger, signed list March 20, 1972
Richard Tobias, below Stoddard on list
Arnold Smith, below Stoddard on list
Pat Wieneche, signed list March 7, 1972
Angelo Ramirez , below Stoddard on list
Phil Gannon, below Stoddard on list.
There is no showing on Respondent's referral records that
any effort was made to contact Stoddard. Also it could be
that he had not reported in again to Respondent's hall after
he completed his job on March 13 to 20. Many boomers
were dispatched to this job; however, they are all listed for
assignment to the night jobs. On the other hand, these night
jobs were 10-hour jobs and some men prefer such jobs be-
cause of the increased pay. This job was estimated for 3
weeks.
(13) On March 30, 1972, Respondent dispatched Henry
Wyatt and Wilt Stafford, 101 members, to jobs with Refrac-
tory Engineering Company at the Husky Oil Refinery at
Cheyenne, Wyoming. Wyatt signed the out-of-work list on
November 8 or 9, 1971; Stafford signed the list between
November 12 and 19, 1972.
(14) About April 3, 1972, Respondent received another
request for men to be dispatched to the Husky Oil Refinery
in Cheyenne, Wyoming; this time from Refractory Compa-
ny. Fifteen men were dispatched and Stoddard was includ-
ed among them.
The Period of April 7 to May 3
Stoddard's employment with Refractory in Cheyenne,
Wyoming, lasted 4 days. On his return to Denver, Colorado,
he again signed the manpower out-of-work list, this time the
boomer out-of-work list, as the lists were separated on April
5. The date he signed was April 7. His next referral was on
May 3, 1972. Between April 7 and May 3, Respondent
referred approximately 29 men from the primary list, 49
men from the 101 manpower list, and,23 from the boomer
manpower list. The, 101 manpower list does not show dates
of sign-in during this period. The first sign-in dated is on
May 15, 1972; therefore, there is no way of knowing how
many signed in prior to Stoddard. Stoddard's name is 20th
on the boomer out-of-work list; he signed in on April 7 and
the list began on April 5.
On May 2, 3, and 4, 1972, Respondent received a large
order for men from Ramsey Engineering Company for
work at the Conoco Refinery in Denver, Colorado. Approx-
imately 75 men, including Stoddard, were dispatched. This
was a "turn-around" job at an oil refinery and was in the
category of less desirable jobs. Respondent had a difficult
time in securing enough men to fill the orders. Calls were
made to Boilermaker locals in other states for men. The job
Stoddard was referred to at the Husky Oil Refinery in Chey-
enne, Wyoming, on April 3 was also a turn-around refinery
job.
The Ramsey job at the Conoco Refinery in Denver, Colo-
rado, came to an end during May 17 to 19, 1972. As the men
were terminated, they appeared in large numbers at
Respondent's hiring hall to place their names on the out-of-
work lists. Stoddard signed the boomer out-of-work list on
May 19. Between that date and June 19, when he left the
area for employment in Wyoming, obtained through an
Ironworkers Union, Respondent dispatched the following
41 say "approximately" because some who are shown to have received
work orders have their names lmed through ; names of others appear on the
referral forms but are not shown to have received "work orders."
BOILERMAKERS , LOCAL 101
men who signed the out-of-work list after Stoddard:
The Period of May 19 to June 19
(1) On May 25, 1972 , Respondent dispatched H. D.
Harris, a 10;member who'signed the 101 out-of-work list
on May 22, to a job as certified arc welder with Ceco Com-
pany-
(2) On May 31, 1972, Respondent dispatched Doug
White, a 101 member who signed the 101 out-of-work list
on May 22, to a job as boilermaker with Stearns -Roger in
Pueblo, Colorado.
(3) On June 5, 1972, Respondent received a request from
Stearns-Roger Company for five riggers and four welders
for its job at the Comanche Power Plant in Pueblo , Colora-
do. Of those dispatched, the following three 101 members
and one boomer signed the out -of-work list after Stoddard:
Wayne Huntley, signed 101 list May 23
H. D. Harris, signed 101 list May 22
Hosea Moore, signed 101 list May 23
Leo Mosier , signed boomer list May 22.
Stoddard talked with Pipes and Carlson about referral to
Stearns-Roger in Pueblo , Colorado, for one of these jobs.
He particularly wanted to work there because he has a son
living in Pueblo . He spoke to Pipes about the matter be-
cause at the time Marie Carlson "was on vacation or some-
where." The day that Carlson returned to the office,
Stoddard asked her if the order for men for Stearns-Roger
in Pueblo had come in . Pipes reminded Carlson that it had
and that Carlson had filled it. Carlson then remembered
that she had sent "five riggers and four welders" to this job.
Stoddard said that he thought he was supposed to get to go
down on that job. Carlson replied that she had sent mem-
bers of the Boilermakers.
Stoddard also testified that a few days later, he talked with
Business Agents Hurst and Lacefield about being jumped
over in the dispatch of men to this jobsite. He testified that
Lacefield told him "he was sending members to that job.
That I [Stoddard] wasn't a member . I was an Ironworker."
Stoddard testified that he threatened to call the Boilermak-
ers International office and to go to the NLRB.
In the absence ' of corroboration of surrounding events, I
cannot relate these two conversations-the one with Pipes
and Carlson and the one with Lacefield and Hurst . It could
be that Stoddard has confused or combined two separate
events . He testified that the Pueblo job was in the latter part
of April 1972 and that his conversation with Lacefield and
Hurst occurred on May 1 . Yet Respondent's records show
no referrals to Stearns -Roger in Pueblo in the latter part of
April, and in fact not since an order for two welders was
received on April 5. Also, Carlson was not on vacation until
May 20 to June 4. She did dispatch five riggers and four
welders to Stearns-Roger in Pueblo on June 5. So, it would
appear that this is the job that Stoddard was seeking. But,
the dispatch of the men for this job was made by Hurst;
Lacefield was out of the office campaigning for the pending
union election during these weeks . Lacefield was not on the
Union's payroll from May 12 to June 14 and was in the
office "very, very seldom" during that time . Stoddard did,
however, file a charge against the Union on about May 1
or 2, 1972,' which was withdrawn shortly afterwards; so,
37
some conversation must have taken place about that date.
Stoddard's charge filed June 12 sett"forth that he was re-
fused referral "on or about May 1, 1972 and June 6, 1972."
Lacefield did not testify regarding the conversation. I find
that a conversation with Lacefield about a referral to the
Stearns-Roger jobsite in Pueblo, Colorado, occurred on or
about May 1, 1972; that Stoddard has another conversation
with Carlson and Pipes in June regarding referral to
Stearns-Roger.,
(4) Pursuant to a request received June 8 from Koppers
Company for one arc welder , Respondent dispatched Mike
Casados, a 101 member who signed the out-of-work list on
May 22.
(5) Pursuant to a request received June 9 from Pittsburg-
Des Moines Steel Company for one are welder, Respondent
dispatched Richard Whyte, a 101 member who signed the
out-of-work list on June 1.
(6) Pursuant to a request received June 12 from Refcon
Industries for four arc welders, Respondent dispatched
Robert Zahradra, a 101 member who signed the out-of-
work list on May 24.
(7) Pursuant to a request received some unspecified date
shortly before June 19 from Stearns-Roger in Pueblo, Colo-
rado, Respondent dispatched George Cummings, a 101
member who 'signed the out-of-work list on May 22.
F. Conversation Between Lacefield and Funk
Don Lacefield, assistant business agent for Respondent
until June 1972, was nominated for position as business
agent on May 12, 1972. He was off the Union 's payroll from
that date until June 14. He spent his time electioneering
from May 12 until the election on May 8, which he won.
At some time in the latter part of June 1972, after the
union election and after Stoddard had filed his charge
against the Union (filed June 12), Lacefield and Owen
Funk, a' member of Respondent , had a conversation with
reference to Stoddard's charge. It is not clear which of the
two first mentioned the unfair labor practice charge or the
"trouble against the local" that Stoddard had started; but
Funk asked Lacefield if Stoddard had or was causing any
trouble. Lacefield replied that there would be no problem;
that Stoddard was not a boilermaker but was an ironworker
and should not have been allowed to sign the out-of-work
list; that he would not win the case against the local.
I do not credit Lacefield's denial that the conversation
took place . Lacefield acknowledged that he had had several
conversations with Funk , but primarily about the election;
as to whether or not he had had a conversation with Funk
after the election about Stoddard, he testified , "Not to my
knowledge, no."
G. Referrals of Richard Sciumbato and Other Ironworkers
Sciumbato lives in the Denver area and is a member of
Local 24 of the Ironworkers Union . It has been his practice
for 4 or 5 years to go to the Ironworkers Hall in the early
morning to check about employment and if none is avail-
able through this union, he goes to the hiring hall of Respon-
dent. He has received referrals through both of these unions
without putting ,his name on any out-of-work list. In the
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spring of 1972, however, _ he placed his name on
Respondent's out-of-work list, on at least two occasions.
The first time his name appears on the list is May 3, 1972,
of which date he signed the boomer out-of-work list.
Immediately prior to this he had obtained a referral from
Respondent to a job as a high rigger with Steams-Roger at
its Comanche job in Pueblo. This was on March 31, 1972.
His reporting date was April 3, 1972. He worked on this job
until May 2, 1972. Then, on May 3, he signed Respondent's
boomer out-of-work list. Pursuant to a job referral request
received that day from Ramsey Engineering Co., Sciumbato
was referred to a job with reporting date of May 3. He was
on the same referral list as Sam Stoddard. He worked on this
job until May 16. He again signed Respondent's boomer
out-of-work list on May 17. Sciumbato was told there that
there was no work.
He then went to Casper, Wyoming, to see about getting
work through the Ironworkers local there. While there he
heard that the Ironworkers Union in Pueblo, Colorado, was
referring men, so he went next to Pueblo. Through this
union he obtained employment with State, Inc. at the Pueb-
lo Steel Mill with reporting date of May 28. He worked on
this job for 3 days. He was next referred to a job through
Ironworkers Local 24 in Denver, Colorado, with reporting
date of June 5. This job was in Platteville, Colorado, about
48 miles from Denver and lasted about 3 days. His next job
was obtained through the Ironworkers, with reporting date
of June 11. He worked on this job until about July 9. Then
on July 20, he was referred to a job by the Ironworkers
where he worked until August 3. Shortly thereafter he was
referred to another job through the Ironworkers and was on
this job at time of hearing.
Sciumbato signed the out-of-work list of Respondent on
May 17, 2 days before Stoddard and about 15 names ahead
of Stoddard. Thus, those previously mentioned as having
signed the list after Stoddard yet referred out ahead of him
between May 19 and June 19, likewise signed the list after
Sciumbato and were referred out ahead of him. But, Scium-
bato was working during most of this time except from May
17 to 28. Yet, there is no testimony from Sciumbato or from
any agent of Respondent or from the records of Respondent
that any effort was made to contact him. His name is not
lined out where he signed it on the list on May 17, nor is it
lined out where retyped on June 1. It is possible that
Respondent's business agents knew or surmised that Scium-
bato was working during this time since he did not come by
to inquire about employment.
Arnold Smith is also an Ironworker whose name appears
on Respondent's manpower out-of-work list. His name is on
the list typed November 9, 1971. Records of Respondent
show no referral of him until March 22, 1972. On this date
Respondent referred 36 men to Certified Welding Company
in Cheyenne, Wyoming, for work at the Husky Oil Refinery.
Of those dispatched, 22 were members of Respondent and
14 were boomers.
Smith's name on the typed page dated November 9, 1971,
has a line drawn through it. In the absence of other explana-
tion, it is concluded that this was because of his referral on
March 22, 1972, to a job of over 2 weeks in duration. Like
Stoddard, Smith's name was skipped in the referral of all
who signed the out-of-work list after November 9,197 1, and
were referred out between that date and March 22, 1972.
Smith next signed the boomer out-of-work list on May 22.
Apparently he called in and had Barbara Pipes put his name
on the list, as her initials are beside his name. His name.is
on the boomer list typed June 1. His name is not lined out
and there is no record of any referral.
Smith did not testify. There is no evidence of his availabil-
ity for referral between November 9 and March 22 and
between May 22 and thereafter, and there is no evidence as
to what agents of Respondent knew or did not know about
this matter. But it is clear that men who signed the out-of-
work list after Smith were dispatched before him.
Douglas Rock, another ironworker, signed Respondent's
out-of-work list on December 23, 1971, and again on May
26, 1972. His first dispatch by Respondent was pursuant to
an order received on June 20, 1972, to a job in Casper,
Wyoming. When Rock signed the out-of-work list in De-
cember 1971, the number he gave had an area code of 307,
which is the area code for the State of Wyoming. His name
is lined through where signed on November 1971, but not
lined through where it appears on May 26, 1972.
Marie Carlson testified that Rock was a certified arc
welder and also qualified as an heliarc welder, but that Rock
was not referred out or considered- for other referrals be-
cause she assumed he was getting employment through the
Ironworkers Union as he did not report in every 2 weeks to
the Boilermakers Union. Although it is a rule of Respondent
that an employee is supposed to check in at the union hall
every 2 weeks in order to maintain his position on the out-
of-work list, this rule has not been strictly adhered to.
Respondent had requests for workmen in the State of
Wyoming on quite a number of occasions between March
22 and April 10. There is no explanation in the record as to
whether or not Rock was called about any of these jobs or
whether he was available. In view of Respondent's policy of
utilizing Wyoming men for Wyoming jobs, Rock would
have been a logical selection for some of these jobs. The
record shows that Respondent repeatedly referred boomers
residing in Wyoming to jobs in that state.
H. Respondent's Referral of Boomers
During the months of December 1971 and January and
February 1972, there were relatively few referrals by Re-
spondent from its manpower list. During slack periods, re-
ferrals were mainly from the primary list. From December
15 through 31, Respondent referred only one man from the
manpower list. In January, 14 men were referred from the
manpower list, including 1 boomer, Archie Molton. In Feb-
ruary, 18 men were referred from the manpower list, includ-
ing 5 boomers. Four of these were dispatched to a job in
Glenrock, Wyoming, and one, Mike Padilla, was dispatched
to a job in Pueblo, Colorado .5
In March 1972, Respondent dispatched 47 men from its
manpower list, 18 of whom were boomers, dispatched to
report as follows:
1 to job in Denver, Colorado, March 7
5 Oliver Padilla is general foreman on this job ; on another occasion he
requested a relative, Bill Faucett, a son-in-law; it is likely that he requested
Mike Padilla, although this fact does not appear from the referral records.
BOILERMAKERS, LOCAL 101 39
3 to Pueblo, Colorado, March 15
14 to Cheyenne, Wyoming, March 27.
In April 1972, Respondent dispatched 76 men from its
manpower list, 29 of whom were boomers, dispatched to
report as follows:
2 to Pueblo, Colorado, April 3
6 to Cheyenne, Wyoming, April 3, including Sam Stod-
dard
I to Colorado Springs, Colorado, April 5
1 requested by name to job at Douglas (state not
shown), April 6
2 to Pueblo, Colorado, April 6
2 to Pueblo, Colorado, April 10
4 to Cheyenne, Wyoming, April 11
1 to Colorado Springs, Colorado, April 11
1 to Denver, Colorado, April 11
1 to Denver, Colorado, April 13
1 to Denver, Colorado, April 17
3 to Denver, Colorado, April 18, one of whom was
requested
2 to Denver, Colorado, April 26
2 to Denver, Colorado, April 28
May 1972 was a very busy month for Respondent. A total
of 158 men were dispatched from the manpower lists: 65
from the 101 list and 93 from the boomer list. During this
month, Ramsey Engineering Company required a large
number of workmen at its project at the Conoco Refinery.
From May 1 to 10, Respondent dispatched 66 boomers and
27 members to this employer alone. Also, 11 boomers and
8 members were dispatched to another employer on the
same project, Tray Installation Company. During this
month, Respondent dispatched to various projects of
Steams-Roger Company in the State of Colorado a total of
seven boomers and nine 101 members, one boomer being
requested by name.
In the month of June 1972, Respondent dispatched a total
of 53 men from the manpower list, 16 boomers and 37
members . Boomers were dispatched to Babcock and Wil-
cox, most of whom, however, were requested by name; to
Stearns-Roger in Pueblo; to State, Inc. in Portland, Colora-
do; C. B. & I. in Casper, Wyoming. Of the five requested
by C. B. & I., four were boomers and one was a member of
Local 101.
Conclusions
Stoddard was repeatedly skipped in the referral of men to
jobs, starting with January 14, 1972. He was told about
January 14 by Carlson that she was told to send boilermak-
ers to a job Stoddard had expected to go to; about May I
he was told by Lacefield that he (Lacefield) was sending
members to a job and that Stoddard was not a member. On
June 5, he was told by secretary Carlson that she had sent
members , as an explanation why he was not dispatched.
Owen Funk was told in the latter part of June 1972 by
Lacefield that Stoddard was not a boilermaker but was an
ironworker and therefore should not have been allowed to
sign Respondent's out-of-work list.
On November 9,197 1, the names of men on the manpow-
er out-of-work list were typed with the names of the 101
members being collected and placed at the top of the list.
Thereafter and until April 5, when new and separate lists
were set up, the boomers and members signed the same
manpower list. But this was a slack period and during this
period there was no change in Respondent's practice of
giving preference to members for referral. During the period
of December 15 to March 27, Respondent referred 53 men
from its manpower list, of whom 8 were boomers. Four of
these were sent to a job in Glenrock, Wyoming, and at least
one other appears to have been specifically requested.
Respondent points out in his brief that in the month of
June 1972, there was a total of 53 referrals and 16 of these
were boomers; that there was a total of 43 names on the 101
out-of-work list on June 1, which appears to mean that this
list was not exhausted prior to dispatch of boomers. But all
but 4 of the 16 boomers dispatched were either requested by
name or were sent to a job in Wyoming, as follows: For the
Babcock and Wilcox job on June 5, Pipes testified that the
six boomers dispatched were requested by name. For the
Babcock and Wilcox job on June 7, the two boomers dis-
patched were requested by name. On June 15 and,21, four
boomers were dispatched to a job with C. B. & I. in Cas-
per, Wyoming.
Except for Stoddard's periods of employment, he was
available for referral between November 5 and June 19.
Since June 19, he has been employed out of the State of
Colorado and has not been available for referral and has not
resigned the out-of-work list. The two jobs to which he was
referred, the Refractory Engineering job at the Husky Oil
Refinery in Cheyenne, Wyoming, and the Ramsey Engi-
neering job in Denver, Colorado, were both large jobs and
were "turn-around" refinery jobs, so-called "dirty" jobs.
Thus, an examination of Respondent's records of refer-
rals, and the treatment of Stoddard as an example, clearly
supports the testimony of secretaryPipes that Respondent's
practice in the operation of its hiring hall was to refer first
from the qualified list, then the 101 manpower list, and then
the boomer list. She had been instructed to "take care of our
own men first." I find that Respondent operated its hiring
hall at all times since December 12, 1971, in a manner that
discriminated against nonmembers in the referral of men to
jobs. Most of the referral of boomers were to jobs for which
they had been requested by name, to jobs in the State of
Wyoming, or large jobs when many workmen were needed
at one time. There appear to be exceptions to this, however,
and particularly during the busy months of April and May
1972; but the unexplained exceptions are in no way suffi-
cient to negate the conclusions as to the general practice of
discrimination against nonmembers.
CONCLUSIONS OF LAW
1. The employers named herein are employers engaged
in commerce or activities affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
3. By giving preference to its members over Sam Stod-
dard and other nonmembers in the referral of men to em-
ployment under its exclusiving hiring hall arrangement,
Respondent has engaged in an unfair labor practice viola-
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive of Sections 8(b)(1)(A) and (2) and 2(6) and (7) of the
Act.
THE REMEDY
In order to effectuate the policies of the Act, I recom-
mend that Respondent be ordered to cease and desist from
the unfair labor practice found and that it be ordered to
operate its exclusive hiring arrangement in a nondiscrimina-
tory manner; that it maintain records which accurately and
fully reflect the basis on which each referral is made and
that such records be made available for inspection by the
Board's Regional Director or his agent.
I further recommend that Respondent make whole Sam
Stoddard and all nonmember applicants for employment
for any loss of earnings they may have suffered by reason
of Respondent's discriminatory referral practice from De-
cember 12, 1971, until such time as its discriminatory prac-
tice ceases . Such loss of earnings shall be computed in
accordance with the methods prescribed in F. W. Wool-
worth Company, 90 NLRB 289, and Isis Plumbing & Heating
Co., 138 NLRB 716.
As to how many or which ones of the boomers were
injured by Respondent's discriminatory practice cannot be
ascertained from an examination of Respondent's records.
As testified to by Pipes and acknowledged by counsel for
Respondent in his brief and apparent from the documents
themselves, the operation of the out-of-work lists was a
"pretty sloppy operation." Notations were not always made
to indicate a man's unavailability due to sickness or vaca-
tion, nor were notations made to show short periods of -
unavailability where a man was assigned to short jobs.
When names were scratched out, the reasons for doing so
were not shown. The records do not always show, when
Respondent's agent was "unable to contact" a man for
referral. It is certain that many boomers, particularly when
jobs through Respondent were scarce, did not linger in the
Denver area. There is no indication from the records wheth-
er or not names of such men were removed from the lists.
Some of the boomers did not leave telephone numbers;
others gave out-of-state numbers.
The boomer out-of-work list shows, for example, that
between May 9 and 15, about 15 men signed the list; only
2 are scratched out. Carlson expressed the opinion that four
of them left the area when employment was not immedi-
ately available, and another one, W. H. Henderson, left the
area after serving a jail-term. Yet these names have not been
lined out on either the original sign-in sheets or on the sheets
typed on June 1.
Only boomers Stoddard and Sciumbato testified,as to
their availability. Sciumbato was unavailable for referral
most of the time because of gainful employment. This does
not mean that he was not discriminatorily skipped in refer-
ring men to jobs; it means that while he was employed he
had no wage losses by such discriminatory practice. All
boomers whose names appear on Respondent's manpower
out-of-work list were subjected to Respondent's. discrimina-
tory practices, and those injured, should be made whole.
However, the mere fact that Respondent's records show one
not to have been referred or to have been skipped is not a
sufficient basis for a determination of loss of wages. It must
be show that he was available and qualified for the job-The,
Board ordered ; a similar remedy in International
Longshoremen's and Warehousemen's Union, Local No. 13
(Pacific Maritime Assn.), 192 NLRB 260.
In the two following cases a broad make-whole order was
not included, but I believe they are distinguishable. In the
case of Local No. 851, International Longshoremen's Associa-
tion (West Gulf Maritime Assn.), 194 NLRB 1027, the Board
limited loss of wages to the charging parties only ,and did
not extent it to "all other applicants for employment," on
the basis that "The record does not reveal that any identifia-
ble members of Local 329 other than the Charging Parties
at any time applied for classification cards and were denied
the same or were in any other manner discriminated
against." In the instant case all boomers who signed, the
out-of-work list thereby "applied" for referral. Whether one
was available for referral on a particular date and therefore
denied referral on that occasion is a matter for compliance.
Respondent should not escape liability for its unfair labor
practice of maintaining a discriminatory referral practice
for the absence of proof of each and every instance- of
refusal to refer.
In the Board's decision in Pacific Maritime Association,
184 NLRB 312, involving a discriminatory referral practice,
the General Counsel sought recovery of wages as a remedy
for only 10 persons from a casual list of approximately 580
men. The Board's make-whole order was limited to this
group, and one of these was eliminated as there was no
evidence of his availability.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER6
Respondent, its officers, agents, and representatives,
shall:
1. Cease and desist from:
(a) Discriminating in favor of its members and against
nonmembers in the referral of men under its exclusive hiring
hall arrangement.
(b) In any other manner restraining or coercing non-
members in the exercise of their rights as employees under
Section 7 of the Act.
2. Take the following affirmative actions:
(a) Operate its exclusive referral arrangement in a non-
discriminatory manner.
(b) Maintain records which accurately and fully reflect
the basis on which each referral is made.
(c) Upon request of the Regional Director for Region 27,
or his agents, make available for inspection at all reasonable
times, all its records relating to the operation of its exclusive
hiring hall arrangement.
(d) Make whole Sam Stoddard and any and"all,appli-
cants for employment for any loss of earnings they may
6 in the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of, the Rules and Regulations, be adopted by the Board and become its
fiiidmgs, conclusions, and order, and all objections thereto shall be deemed
waived for all purposes.
BOILERMAKERS , LOCAL 101
have suffered from December 12; 1971, by Respondent's
discriminatory operation of its exclusive hiring hall arrange-
ment, to the extent and in the manner set forth in the section
entitled, "The Remedy."
(e) Preserve and, upon request, make available to the
Board or its agent for examination and copying, all docu-
ments, records, and data necessary to compute and analyze
the amount of backpay due under the terms of this Order.
(f) Post in conspicuous places at its business offices and
meeting halls, including all places where notices to its mem-
bers are customarily posted, copies of the attached notice
marked "Appendix." Copies of said notice, to be furnished
by the Regional Director for Region 27, shall, after being
duly signed by an authorized representative of Respondent,
be posted upon receipt-thereof and be maintained for 60
consecutive days. Reasonable steps shall be taken by Re-
spondent to insure that such notices are not altered, de-
faced, or covered by any other material.
(g) Notify the Regional Director for Region 27, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
7 In the event that the Board's 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a trial, that we violated Federal Law by discrimi-
41
nating against nonmembers of this Union in the opera-
tion of our exclusive hiring hall arrangement, we here-
by notify you that:
WE WILL NOT discriminate in favor of our members
and against nonmembers in the referral of men for
employment in the operation of our exclusive hiring
hall arrangement with employers who are parties to
such arrangement.
WE WILL keep records which will accurately and fully
disclose the basis on which each referral is made, and
these will be available for inspection at all reasonable
times, upon request, by the Regional Director of the
National Labor Relations Board.
WE WILL make whole Sam Stoddard and any and all
applicants for employment for any loss of earnings
they may have suffered from December 12, 1971, by
the discriminatory operations of our hiring hall.
Dated By
INTERNATIONAL BROTHERHOOD
OF BOILERMAKERS,
IRON SHIP BUILDERS, BLACK.
SMITHS, FORGERS
AND HELPERS, LOCAL 101
(Labor Organization)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provision may be directed
to the Board's Office, U.S. Custom House, Room 260, 72l
19th Street, Denver, Colorado 80202, Telephone 303-837-
3551.