Plasterers, Local 90

National Labor Relations Board - Board Decisions

May 25, 1978

236 N.L.R.B. 329 (N.L.R.B. 1978)

PLASTERERS, LOCAL 90
Local 90, Operative Plasterers and Cement Masons'
International Association of the United States and
Canada, AFLCIO (Southern Illinois Builders As-
sociation) and Steve Bovinett. Case 14-CB-3391
May 25, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELI.O
AND TRUESDAI. E
On November 9, 1977, Administrative Law Judge
Jerry B. Stone issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the Charging Party
filed an answering brief.
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 of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
The Administrative Law Judge found that the Re-
spondent violated Section 8(b)(1)(A) of the Act by:
(1) refusing to register Steve Bovinett on its "idle list"
for purposes of referral of registrants to employment:
(2) refusing to refer Bovinett for employment; (3)
threatening Bovinett with reprisals and loss of future
referrals because he had engaged in protected con-
certed activities; and (4) refusing to furnish Bovinett
with copies of its referral lists. The Respondent has
excepted to certain of these findings and conclusions
of the Administrative Law Judge. Specifically, the
Respondent has excepted to the Administrative Law
Judge's admission into evidence, and reliance on cer-
tain tape recordings made by Steve Bovinett of tele-
phone conversations between himself and Respon-
i The Respondent asserts that the Administra:tie iasw Judgc's resolution,
of credibility, findings of fact, and conclusilns of law aire the result of bials
After a careful examination of the entire record. we are satisfied that this
allegation is without merit. There is no basis for finding that bias and p;tl
tiality existed merely because the Administrative L.au Judge resolved impor
tant factual conflicts in favor of the General Counsel's vwitnesses. As the
Supreme Court stated in ,V I. R. . s Pitrlhburgh Sitramship ( . 137 1 S. h56t,
659 (1949). "[Tlotal rejection of an opposed view cannot of itself Impugn the
integrity or competence of a trier of fact." Furthermore. it is the Board's
established police not to overrule :n Administratlse Law Judge's resolu-
tions with respect to credibility unless the clear prepotnderance of all of the
relevant evidence convinces us that the resolutions are incorrect Siandard
Dry Wall Products. Inc., 91 NLRB 544 (1950), cnfd 188 F .2d 362 (('. 3.
1951). We have carefullv examined the record and find no basis for rceer,
ing his findings.
In the absence of exceptions Chairman annine and Mlcmnber luesdale
adopt pro forma the finding of a violation of Sec (b)( I )(A) in the refusa;l to
supply an out-of-work list.
dent's business agent, Turner, and the latter's wife.
The Respondent has also excepted to the Adminis-
trative Law Judge's finding that Mrs. Turner, the
wife of the Respondent's business agent, was an
agent of the Respondent. For the reasons discussed
below, we find no merit in the Respondent's excep-
tions to the Administrative Law Judge's reliance on
the tape-recorded telephone conversations and to his
finding that Mrs. Turner was an agent of the Re-
spondent. However, we do find merit in the Respon-
dent's exception to the Administrative Law Judge's
finding that it threatened Bovinett with reprisals dur-
ing the October 19, 1976, telephone conversation,
and that the Respondent's referral of Bovinett to a
job on November 16, 1976. was made with a discrim-
inatory intent.
T he basic facts, as found by the Administrative
l.aw Judge and more fully set out in his Decision, are
as follows:
The Respondent and the Southern Illinois Builders
Association (SIBA) have been parties to a collective-
bargaining agreement containing provisions for the
exclusive referral of employees by the Respondent.
Employees seeking referral for work report in to the
Respondent. usually by telephone, and are placed on
the "idle list" in accordance with the chronological
time reported in. When referrals are requested by an
employer. the employee on the top of the list is re-
ferred out. although the Respondent's business agent
has some discretion in determining referrals based
upon an individual employee's qualifications.
Steve Boxinett, the Charging Party, filed an unfair
labor practice charge against the Respondent on Julx
19, 1976. The Acting Regional Director for Region
14 refused to issue a complaint on the charges which
alleged that the Respondent violated Section
8(b)( I )(A) and (2) of the Act for failing to refer Bovi-
nett for employment. On August 31, 1976, the Gener-
al Counsel, b) the Office of Appeals, denied
Bovinett's appeal from the Acting Regional Direc-
tor's refusal to issue a complaint.
Thereafter. on October 19 and 20, and on Novem-
ber 16, 1976, Bovinett engaged in three telephone
conversations with the Respondent's business agent.
Dean I.. Turner, and two telephone conversations
with Turner's wife., Mrs. Dean E. Turner. Bovinett
tape-recorded all of these conversations without the
knowledge or consent of the other party to the con-
versation. and both the tapes and accurate transcript
thereof were admitted into evidence by the Adminis-
tratitse l.asv Judge, wsho relied on them as substantive
proof that the Respondent violated Section
8(b)( I)(A) of the Act. [he Respondent has excepted
to the findings and conclusions of the Administrative
l.aw Judge which were based on the tape-recorded
236 NLRB No. 37
329
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
telephone conversations, as it asserts that such re-
cordings were obtained in violation of the laws of
Illinois and thus were wrongfully permitted to be in-
troduced into evidence by the General Counsel. The
Illinois law in question 2 provides that to record tele-
phone conversations without the knowledge of one
of the parties involved constitutes a crime, and that
any evidence obtained in violation of the statute is
prohibited from introduction in any civil proceeding.
According to Exhibit A of the Respondent's excep-
tions and supporting brief, on August 18, 1977, Bovi-
nett was charged in a Bill of Indictment with seven
counts of violating this Illinois statute, and he later
pleaded guilty to three counts. Since the evidence
was obtained in violation of state law, and the state
law prohibits such evidence from being used in any
civil proceeding, the Respondent would have us re-
verse all findings and conclusions of the Administra-
tive Law Judge which were based upon such tape-
recorded evidence. We do not agree with the Re-
spondent.
Section 10(b) of the National Labor Relations Act,
as amended, provides that Board proceedings shall
"so far as practicable, be conducted in accordance
with the rules of evidence applicable in the district
courts of the United States under the rules of civil
procedure for the district courts of the United States,
adopted by the Supreme Court of the United States
...." Therefore, the Board is obligated to look to-
wards Federal law to determine the admissibility of
evidence, although the Board is clearly not bound by
the strict rules of evidence applicable in the Federal
courts.
In United States v. Krol, 374 F.2d 776 (C.A. 7,
1967), cert. denied 389 U.S. 835, the Seventh Circuit
Court of Appeals considered the same Illinois statute
and the same argument as made by the Respondent
in the present case. The court held that "neither the
existence of the Illinois statute nor its construction as
applied to a state prosecution . . . require a reap-
praisal of the federal rule of evidence . . . that feder-
al and not state law furnishes the standard governing
admissibility of evidence in a federal court." 3
Similarly, the Ninth Circuit Court of Appeals in
United States v. Keen, 508 F.2d 986 (C.A. 9, 1974),
cert. denied 421 U.S. 929, considered a Washington
State statute which was very similar to the Illinois
statute in the present case. The court held "that
where no constitutional right has been abused the
admissibility of evidence is governed by common law
principles, not by local statute. .... Therefore, wire-
Par 142(a). ( hap. 38, Illinois Revised Statutes
United Staler v. Krol. supra at 778. See also Rathbun N. United States. 355
U.S. 107 (1957), cited in United States v. Martin. 372 F.2d 63 (C . 7. 1967),
cert. denied 387 U.S. 91
tap evidence obtained in violation of neither the
Constitution nor federal law is admissible in federal
courts, even though obtained in violation of state
law." 4
The Federal wiretapping statute is found in 18
U.S.C.A. §2510, et seq. (1968), Wire Interception and
Interception of Oral Communications. According to
18 U.S.C.A. §2511(2)(d), the following persons are
exempt from coverage by that statute:
It shall not be unlawful under this chapter for
a person not acting under color of law to intercept
a wire or oral communication where such person
is a party to the communication or where one of
the parties to the communication has given prior
consent to such interception unless such com-
munication is intercepted for the purpose of
committing any criminal or tortious act in viola-
tion of the Constitution or laws of the United
States or of any State or for the purpose of com-
mitting any other injurious act. [Emphasis sup-
plied.]
The District Court for the Northern District of Illi-
nois had occasion to interpret this section of the stat-
ute in Stamatiou v. United States Gypsum Company,
400 F.Supp. 431 (N.D. Ill., 1975), affd. 534 F.2d 330
(C.A. 7, 1976). The plaintiff therein asserted that tele-
phone conversations which were recorded without
his knowledge by the defendant were inadmissible
because the defendent's actions violated Illinois law
as well as Federal law, inasmuch as the defendent
failed to qualify for the exemption under 18 U.S.C.A.
§2511(2)(d). The court concluded that §2511(2)(d)
"does not proscribe a party to a telephone conversa-
tion from recording the conversation or publishing it
without the consent of the other party." 5
Therefore, since Federal law does not proscribe
the admissibility into evidence of telephone conver-
sations which are tape-recorded by a private party
without the knowledge or consent of the other party
to the conversation, we shall follow the Federal law
and affirm the Administrative Law Judge's admis-
sion into evidence and reliance upon the tape-re-
corded conversations in the present case.
The Respondent has also excepted to the Adminis-
trative Law Judge's finding that the wife of the
Union's business agent, Mrs. Dean E. Turner, was an
4 Lnited States v. Keen, supra at 989.
5.Stamatiou v. United States Gypsum Company, supra at 436. In fn, 3. the
court rejected the plaintiffs additional assertion that the defendant was not
exempted by §2511(2)(d) because it intercepted the telephone conversations
for the purpose of violating the Illinois Eavesdropping Statute. According to
the court. "IA] fair reading of the Statute . . . requires a construction that
the defendents would be culpable only if the illegal act was something other
than recording the conversations." See also Meredith v. Gavin. 446 F2d 794
(('.A. 8. 1971): Smith v. Wunker, 356 F.Supp. 44 (S.D.Ohio. 1972). affd
Smith v. (incinnaurti Post & Times-Star, 475 F.2d 740 ( A. 6. 1973).
330
PLASTERERS. LOCAL. 90
agent of the Respondent. The Administrative law
Judge relied on this finding to reach the conclusion
that, on two occasions, the Respondent failed to
place Bovinett on the "idle list" after Bovinett had
telephoned the union office and asked Mrs. Turner
to place him on the "idle list." The record is clear
that Business Agent Turner maintains an office and
telephone line in his own home which employees call
in order to request placement on the "idle list." On
October 20 and November 16, 1976, at 4 p.m., Bovi-
nett telephoned the regular union number, and on
both occasions Mrs. Turner answered the telephone
by stating "Local 90." Bovinett asked on each occa-
sion that Mrs. Turner place his name on the "idle
list," and Mrs. Turner replied that she would do so.
On both occasions, however, Bovinett's name was
not placed on the list. The Board has previously de-
termined that it has a "clear statutory mandate to
apply the 'ordinary law of agency' " to its proceed-
ings.6 Thus, the Board has adopted the fundamental
rule of agency that "authority to act as an agent in a
given manner will be implied whenever the conduct
of the principal is such as to show that he actually
intended to confer that authority." 7 In the present
case, Mrs. Turner answered the regularly listed union
business phone, stated the Union Local's name, and
gave the impression that she was capable of conduct-
ing union business by placing names of employees on
the "idle list." Clearly, Mrs. Turner possessed the ap-
parent authority necessary to indicate to third parties
dealing with her that she was an agent of the Respon-
dent.8 Therefore, we agree with the Administrative
Law Judge's finding that Mrs. Dean E. Turner was
an agent of the Respondent.
As to the October 19, 1976, conversation between
Bovinett and Turner, the Administrative Law Judge
concluded from the taped conversation that Turner's
reference to the fact that Bovinett had "filed the
charges" against the Union, as well as Turner's state-
ment to Bovinett that he "better be able to do the
work," gave the connotation that reprisals could be
expected and that Bovinett's future referrals were in
jeopardy. We disagree with the Administrative Law
Judge's conclusion that such statements were viola-
tive of Section 8(b)(1)(A) of the Act. In the context of
the entire telephone conversation set forth in the at-
tached Decision, we do not believe that Turner's
passing reference to Bovinett's filing of charges rises
to the level of an 8(b)(l)(A) violation. Thus, Turner's
6 Internaional Longshoremen'r and It arehouremen'v t 6nion ( I 0: l.o, al A
et al (Sunset line and Twine Cotmpanw,J 79 NL.RB 1487, 1507 ( 19481
kId
8 International Brotherhood of leantilerv. (Chauffeurv. iiarehou.elon A
Helpers of America, Local 70 (ILuck Stores. In, i. 226 NLRB 205 ( 197t):
Carpenters District (ouncil of Denver and vicinla (Hensel Phclps (C,ntru. i n
Co.). 222 NLRR 551 (1976).
reference to Bovinett's filing the charges, ambiguous
in this context, was immediately followed by
Turner's statement that "now I will put you on the
idle list. Give me the telephone number where I can
get ahold of you and as soon as your name comes up,
I will call you...." Thus, in our view, the statement
regarding the filing of charges carried no threatening
connotation when examined in the context of the en-
tire conversation. Additionally, the record is clear
that Turner had received a number of complaints
about the quality of Bovinett's work, and thus it was
to he expected that Turner would remind Bovinett
that he had "better be able to do the work" when
Bovinett was referred to a job. Accordingly, the Re-
spondent did not violate Section 8(b)(l)(A) of the
Act on October 19, 1976.9
The Administrative l.aw Judge also found that
Turner's "referral" of Bovinett on November 16,
1976. was not a referral made with a bona fide non-
discriminatory intention, because Turner had re-
ceived a complaint about Bovinett's work from the
same employer to whom Turner was referring Bovi-
nett. The Administrative Law Judge relied on this
finding in order to conclude that the November 16
referral did not negate the overall finding of discrimi-
natory nonreferral by the Respondent. We disagree
with the Administrative Law Judge's finding as to
the November 16 referral. The mere fact that Turner
had previously received a complaint from the same
employer about Bovinett's work does not indicate
that the November 16 referral was made with a dis-
criminatory intent. The record is clear that Turner
possesses a significant amount of discretion in mak-
ing referrals from the "idle list." And most impor-
tantls. the Administrative Law Judge himself found
in another part of his Decision that Turner received
many complaints about employees and "mostly ig-
nores such complaints." Thus, the underpinning for
the Administrative Law Judge's finding that the No-
vember 16 referral was not bona fide-i.e., that
Turner was referring Bovinett to an employer who
had earlier complained about him is negated by the
evidence that Turner regularly ignores such coin-
plaints. As the Administrative Law Judge relied on no
other basis for finding that the November 16 referral
was not bona fide, and as the evidence does not re-
veal it to he otherwise, we reverse the Administrative
Member Penell) would adopt the Adminlstratlie La, Judge's finding
that such statement, siolated Sec 8(h))l)(A) of the Act In his les.. the
sttcmllenlt made bII urner during the O()ctober 19 1976. consersatlrn , ere
of the ,same general nature a.s the statements made b, Turner in t,,o sepa-
rate coilnersatlloits on October 2). 197'6 Ihose statenments Aere found to
haoe been siolatise rif Set 8ih )(h/ A) )of the A.1 hb the Adminlsiratlse I aa
Judge, and are adopted herein \ mewned in the context of the Respcndenl's
c,'erali onduct rtoards Bo inerll. the si.atlenents made on Octob er 19, 1976.
cleirlN threatened Blosinell with [ic'lpi l- anid hlos of future job referrals
331
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Law Judge in this regard.'0 We note, however, that
later that same day Bovinett called Mrs. Turner,
seeking to have his name kept on the "idle list," and
although she said this would be done, it was not.
Accordingly, we conclude that the chain of illegal
conduct which the Administrative Law Judge found
between October 20, 1976, and June 7, 1977, was not
broken by Respondent's attempted referral of No-
vember 16."
In paragraph l(e) of his recommended Order, the
Administrative Law Judge utilized the broad cease-
and-desist language which is ordinarily used when
the nature of the violations strikes at the very heart
of the Act, or the past practices of a respondent indi-
cate the likelihood of violations other than those
found. We find it unnecessary to impose such a
broad order against the Respondent here. The facts
herein involve discriminatory nonreferral directed
against a single applicant, and the General Counsel
has failed to indicate to us the likelihood that this
Respondent will engage in a continuing pattern of
unlawful discrimination against other referral appli-
cants.' Accordingly, we shall amend the Administra-
tive Law Judge's recommended Order by substitut-
ing the narrow cease-and-desist language for the
broad language used by the Administrative L.aw
Judge.
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
While our dissenting colleague argues that the November 16 referral
was to an employer who had indicated it never wanted Bovinett to work for
it again, we reiterate that Turner had complaints about other employees
which the Administrative Law Judge found Turner ignored.
i Member Penello would adopt the Administrative L aw Judge's finding
that the November 16 "referral" was not made with a bona fide. nondis-
criminatory intention The "referral" in question was to an employer who
had pres iously informed T urner that it never wanted Bovinett to work for it
again. In addition. Turner repeatedly stated during this and other consersa-
tions that Bovinett had "better be able to do the work" to which he was
referred. In his view, the Respondent's referral of an employee, in whose
work ability it had little confidence, to an employer whio had complalined
about that employee's work ;ability, indicates that the referral was made
with discriminatory intentions Such a discriminatory "referral" lends fur-
ther support to the Administrative L.aw Judge's finding of discriminaltory
nonreferra;l by the Respondent between October 20, 1976. and June June 6,
1977
With regard to the October 19 telephone conversation between Turner
and Bosinett in which Turner told Bovinett that he had "better be able to,
do the work," the m;ajority concludes that such a statement was to be ex-
pected in light of the many complalints received by Turner about the quality
of Bovinett's work. After reaching this conclusion, however, they then rely
on the Administrative Law Judge's finding that Turner usually ignores
complaints made by employers about specific employees -in concluding
that the November 16 referral of Bovinett was made with a bona fide non-
discriminiatory intention In response to the above. Member Penello finds it
difficult to unlderstand this inconsistent approach taken by his colleagues
2 Internaionual Brioherhood of Boilermakers, Iron Shipbhuilder.. RBlal-
rmiths. ibrge'rs and ll'elter.s Loral lrdge Noi. 169, AFl CIO (Riles Stoker
('orlporarion), 209 NL RB 140 (1974)
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Local
90, Operative Plasterers and Cement Masons' Inter-
national Association of the United States and Can-
ada, AFL-CIO, its officers, agents, and representa-
tives, shall take the action set forth in the said
recommended Order, as so modified:
I. Substitute the following for paragraph l(e):
(e) "In any like or related manner restraining or
coercing referral applicants in the exercise of their
rights guaranteed them by Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to register Steve Bovinett
on our "idle list" for use in referral of registrants
for employment with employers (over whom the
National Labor Relations Board would assert
jurisdiction) with whom we have hiring arrange-
ments or practices.
WE WILL NOT refuse to refer Steve Bovinett for
employment with employers (over whom the
National Labor Relations Board would assert
jurisdiction) with whom we have hiring arrange-
ments or practices.
WE WILL NOT refuse to furnish information re-
lating to our "idle lists," "referral lists," or other
details relating to our referral hiring arrange-
ments with employers (over whom the National
Labor Relations Board would assert jurisdic-
tion).
WE WILL NOT threaten employee registrants or
potential registrants on our "idle list" with repri-
sals, including reprisals of loss referrals, because
such employee registrants or potential regis-
trants have engaged in protected concerted ac-
tivities.
WE WILL NOT in any like or related manner
restrain or coerce referral applicants in the exer-
cise of their rights guaranteed them by Section 7
of the Act.
WE WILL make whole Steve Bovinett for any
loss of earnings or other benefits he may have
suffered by reason of the discrimination prac-
ticed against him.
WE WILL place, upon request, the name of
Steve Bovinett upon our "idle list" and refer,
without discrimination, Bovinett for employ-
332
PLASTERERS, LOCAL 90
ment with employers (over whom the National
Labor Relations Board would assert jurisdic-
tion).
LOCAL 90, OPERATIVE PLASTERERS AND
CEMENT MASONS' INTERNATIONAt, ASSo( IA-
TION OF THE UNITED STATES AND CANADA.
AFL-CIO
DECISION
STATEMENT OF THE CASE
JERRY B. STONE. Administrative Law Judge: This pro-
ceeding, under Section 10(b) of the National Labor Rela-
tions Act, as amended, was heard pursuant to due notice
on June 8, 9, and 10, 1977, at St. Louis, Missouri.
The charge was filed on November 18, 1976. The com-
plaint in this matter was issued on May 5, 1977. The issues
concern whether the Respondent has violated Section
8(b)(1)XA) of the Act by the making of threats concerning
referral opportunity; by failing to place Steve Bovinett on
referral lists; by refusing to furnish, upon written request,
copy of referral lists; and by failing and refusing to refer
Bovinett to jobs.
All parties were afforded full opportunity to participate
in the proceeding. A brief has been filed by the General
Counsel and has been considered.
Upon the entire record in the case and from my observa-
tion of witnesses, I hereby make the following:
FINDINGS OF FACT
1 THE BUSINESS OF THE EMPLOYER
The facts herein are based upon the pleadings and ad-
missions therein.
At all times material herein, Southern Illinois Builders
Association, herein sometimes called SIBA, has been and
is a voluntary association of employers engaged in the
building and construction industry as highway and heavy
general contractors and specialty subcontractors duly au-
thorized to do business under the laws of the State of Illi-
nois.
At all times material herein SIBA, has maintained its
principal office and place of business at 7623 West Main in
the City of Belleville and State of Illinois. The employer-
members of SIBA maintain their principal offices and
places of business at divers locations within the State of
Illinois and adjoining states, and said employer-members
are and have been at all times material herein engaged in
the business of constructing highways, commercial build-
ings, and other projects in the building and construction
industry.
During the year ending December 31, 1976, which pe-
riod is representative of their operations during all times
material herein, the employer-members of SIBA, in the
course and conduct of their business operations aforesaid,
purchased and caused to be transported and delivered to
their divers offices and jobsites within the State of Illinois
construction materials valued in excess of $100,000, of
which goods and materials valued in excess of $50,000
were transported and delivered to said locations within Illi-
nois directly from points located outside said State.
As conceded by Respondent and based upon the fore-
going, it is concluded and found that SIBA is, and has been
at all times material herein, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
I1. THE LABOR ORGANIZATION INVOLVED
Local 90, Operative Plasterers and Cement Masons In-
ternational Association of the United States and Canada,
AFL-CIO, is and has been at all times material herein a
labor organization within the meaning of Section 2(5) of
the Act.
111 THE UNFAIR LABOR PRACTICES
A. Preliminary Issues
1. Agency status
Both Dean E. Turner, Business Representative of the
Respondent Union, and his wife, Mrs. Dean E. Turner,
are alleged to be agents of the Respondent, within the
meaning of Section 2(13) of the Act. The status of Dean E.
Turner as an agent of the Respondent Union is clearly
established by the pleadings and the evidence. The status
of Mrs. Dean E. Turner is in dispute by the pleadings. The
evidence is clear that employees/members, seeking referral
for employment, telephone the home of Dean E. Turner,
where Turner maintains in effect an office, and speak to
Turner, to a recording device, or to Mrs. Turner concern-
ing their desire to be placed on the referral list. The evi-
dence is clear that this practice is followed and that Mrs.
Turner places such employees/members on the referral
list.'
Based upon the foregoing and the pleadings and admis-
sions therein, it is concluded and found that:
At all times material herein, the following named per-
sons occupied positions set opposite their respective names,
and have been and are now agents of the Respondent, act-
ing on its behalf, within the meaning of Section 2(13) of the
Act: Dean E. Turner. Business Representative; Mrs. Dean
E. Turner, Wife of Business Representative.
2. Bargaining unit: representative status and contractual
referral provision
All journeymen and apprentice cement masons em-
ployed by the employer-members of SIBA within Calhoun,
Jersev. St. Clair and Monroe, and parts of Madison, Bond
and Clinton Counties in the State of Illinois. excluding all
other employees, guards and supervisors as defined in the
Act, constitute a unit appropriate for the purposes of col-
lective bargaining w ithin the meaning of Section 9(b) of the
Act.
The facts are hased upon a composite of the credited aspects of the
teCstimon(, of HoNinett. Stovall, and ( ( Exh IF
333
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At all times material herein, Respondent has been and is
the representative for the purposes of collective bargaining
of the employees in the unit described above and, by virtue
of Section 9(a) of the Act, has been and is now the exclu-
sive representative of all the employees in said unit for the
purposes of collective bargaining with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment.
At all times material herein, Respondent and SIBA have
been parties to a collective-bargaining agreement covering
the period August 1, 1974, through July 31, 1977, and set-
ting forth the rates of pay, wages, hours of employment,
and other terms and conditions of employment of all the
employees in the unit hereinabove described.
The collective-bargaining agreement hereinabove de-
scribed contains, inter alia, the following provisions:
In order for the Contractor to have a competent
working force, the Contractor shall recruit by request-
ing referral from the Union of all employees in classi-
fications covered by this Agreement. The Contractor
shall not hire directly nor recruit applicants from any
other source, nor shall the Contractor in any mann'er
circumvent the requirement herein of seeking referrals
from the Union by any means or method.
Referral of applicants will be made by the Union in
chronological order of registration subject to the abili-
ty of the registrant to perform the work required.
Referral shall be made on a nondiscriminatory basis
without regard to membership or nonmembership in
the Union and there shall be no discrimination against
any person by reason of race, color, creed, sex or na-
tional origin.
B. Background 2
Bovinett filed an unfair labor practice charge against the
Respondent Union on July 19, 1976, in Case 14-CB-3300.
On August 12, 1976, the Acting Regional Director for Re-
gion 14 of the NLRB issued a letter in Case 14-CB--3300 to
the parties. In said letter the Acting Regional Director indi-
cated in effect that the charge of conduct since on or about
February 19, 1976, allegedly violative of Section 8(a)(l)(A)
and (2) of the Act, had been investigated, and that the
investigation had found the charges to be without merit.
The Acting Regional Director's letter of August 12, 1976.
referred to details of the investigation and the disclosures
of the investigation, set forth that the investigation and
results thereof revealed that further proceedings were not
warranted at the time and that he was refusing to issue
complaint in the matter.
The General (Counsel through witness Bovinett presented testimony de-
signed to reveal that the Respondent, by Business Representative Turner,
had displayed hostility toward Bovinett for a period of time preceding the
critical events in this case. Such hostility allegedly flowed from the fact that
Bovinett had corrected Turner with respect to a math problem during
Bovinett's apprenticeship. I have considered such testimony I am persuad-
ed that the testimony as a whole and total context of facts relating to such
background events are insufficient to reveal persuasive background evi-
dence of hostility.
The Acting Regional Director's letter of August 12,
1976, indicated that the investigation had disclosed that the
Respondent Union had agreements with various employers
which required such employers to hire cement masons
through the Union's referral system, and that it was the
established practice of the Union to remove individuals
from the referral list if they fail to answer a phone call for
work, and to register them again on the referral list when
they recontact the Union. The Acting Regional Director's
letter also referred to incidents wherein the Union had re-
moved Bovinett from the referral list after telephoning Bo-
vinett and being unable to reach him.
On August 26, 1976, the General Counsel of the NLRB,
by the Director of Office of Appeals, acknowledged receipt
of an appeal by Bovinett from the Acting Regional Direc-
tor's refusal to issue complaint (of August 12, 1976) in Case
14-CB-3300. On August 31, 1976, the General Counsel of
the NLRB, by the Director of Office of Appeals, denied
Bovinett's appeal from the Acting Regional Director's re-
fusal to issue complaint (in Case 14-CB 3300). The Direc-
tor of Office of Appeals indicated that the appeal was de-
nied substantially for the reasons set forth in the Acting
Regional Director's letter of August 12, 1976.
C. The "Referral" System
As indicated previously, the Respondent Union and var-
ious employers have contractually agreed to a "referral" of
employees by Respondent Union. Essentially the referral
system used by the Union is simple. Employees seeking
referral for work report in, usually by telephone, and are
placed on the "idle list" in accordance with the chronologi-
cal time reported in. From such list, when referrals are
required, the person on the top of the list chronologically is
referred out. The business agent has some leeway in de-
termining referrals based on qualifications. Employees re-
ferred to work are listed thereafter on a referral list. The
"referral" system, although not so spelled out in the collec-
tive agreement, allows employers to request named em-
ployees. Further, the referral system is modified in late De-
cember and the winter months, during the slow season, to
envision repeat referrals for the same employees during the
same week. In other words, an employee referred to an
employer on Monday, for I day of work, remains in the
idle list at the same place for repeat referrals during the
same week. The facts relating to the referral system reveal
that the business representative normally telephones em-
ployees on the idle list in the morning between 6 and 6:30
a.m. and advises them of referral. If an employee is not
reached when telephoned, such employee is removed from
the "idle list." Employees who are referred to work are also
removed from the "idle list" when referred to work. As
indicated, during the slow season, employees who are re-
ferred to work receive repeat referrals during the same
week and are removed from the "idle list" at the end of the
week.3
As indicated in the Acting Regional Director's letter relating to refusal
to issue complaint, the "investigatory" finding was to the effect that the
Union had an established practice to remove applicants from the "idle list"
if the employee was not reached by telephone when called. Such an investi-
gatory finding, however, does not constitute evidence or a finding of eviden-
334
PLASTERERS, LOCAIL 90
D. The Events of October 19, 1976; Threat of Reprisal-Loss
of Future Referrals
On October 19, 1976, Steve Bovinett telephoned Respon-
dent's Business Representative Turner. What occurred is
revealed by the following transcript of the conversation
that occurred between Bovinett and Turner: 4
Bovinett's Call to Turner on October 19, 1976,
at 7:45 a.m.
Turner: Local 90.
Bovinett: Yeah, Dean?
T: Yes.
B: Steve Bovinett.
T: Yes.
B: Is there looking like there is any work or any-
thing?
T: No, nothing is going on Steve.
B: Any chance of getting out pretty soon?
T: Well, I will put you on the list.
B: Put me on the list?
T: Yeah, on the idle list. Is that what you want?
B: Aah, I thought I was on the list.
T: I haven't heard from you . . . hey, you know?
Steve, hey I don't even want to go into it. Now you
aren't and you know you filed the charges and that
. . . now I will put you on the idle list. Give me the
telephone number where I can get ahold of you and as
soon as your name comes up, I will call you. But if you
don't answer the phone, you will come off of the list.
Now that is the way it always has been.
B: Well, I am at the same place I always have been.
T: Same telephone number?
B: Same telephone number I always have been at.
T: Okay, now, you know maybe at times, right, but
you also got days where you don't answer that tele-
phone and I don't know why, but you don't.
B: Well, . .
T: You know you told me when I talked to you
about it, you said, well, you had the telephone out on
the porch and you slept in the back and you didn't
hear it.
B: No, I told you . .
T: Now, that Is what you told me.
tiary value. The testimony evidence of Turner and Tipton was to the effect
that the practice of the Union was to remove an employee from the idle list
if the employee were telephoned concerning a referral and was not reached
There is no evidence to contradict such testimony and it is credited In ihis
case, it was General Counsel's burden to establish the referral system to the
extent necessary to establish violative conduct. Although, at first hlush, such
procedure appears unreasonable, It would appear that an employee applih-
cant expecting referral would check in within a reasonable period of time
and get back on the "idle list." In any event, if the system were otherwise
than testified to by Turner and Tipton. then the General Counsel could
have secured witnesses and by a composite of testimony and use of the
exhibits relating to the idle list and referral list established the facts contend-
ed for. Such has not been done despite the fact the the General Counsel and
Charging Parts should have been on notice of the contended practice bh
virtue of the reasons for the disposition of Case 14-CH 3300 on August 12.
1977.
'Bovinett made a tape recording of the telephone conversation he and
Turner had on October 19, 1976. Such tape recording and transcript thereof
was received into the record. Turner in his testimons acknowledges the
accuracS of the transcript.
B: No, when I talked to you . . .
T: Okay. look, I tell you what, I am not going to
argue with you about it. It's fine, I will put you down.
I will call you at that number as soon as your name
comes up on the list. And whatever it is, and you had
better be able to do the work Steve. Okay?
B: I kinda figured it was that way.
T: It is that way. Everybody else has to be able to
do the work.
B: Well . .
T: You know . . .
B: Okay.
T: But like I said, whatever comes up and when-
ever you are named. I will call you. ()kay?
B: Fine.
Turner's testimony as to the conversations that he and
Bovinert had on October 19 and 20, 1976, does not really
contradict Bovinett's testimony. Turner, however, testified
to the effect that in 1975 and early 1976 Bovinett's work
performance had indicated problems with Bovinett's abili-
ty to do work by himself and that he had indicated to
Bovinett that he had to be able to perform the work by
himself and not in a crew. Turner also indicated that sev-
eral contractors had complained about Bovinett's work,
that he had tried to help get Bovinett needed work experi-
ence at a company called Redi-Cut Stone, but Bovinett
was laid off by Redi-Cut Stone, and that Redi-Cut Stone
had indicated to the Union that Bovinett could not do the
work. Turner's overall testimony, however, failed to refer
to any failure to refer Bovinett because of qualifications, or
to the telling of Bovinett about specific complaints.
Turner's testimony also indicated that he receives many
complaints and mostly ignores such complaints. The sum
of his testimony and the overall facts persuades me that
Turner, in his conversations with Bovinett, was not really
concerned about the quality of Bovinett's work.
Conclusions
The issue of the October 19, 1976, conversation set forth
above was fully litigated. The General Counsel in his com-
plaint alleged that the Respondent, on or about October
19, 1976, bo Business Respresentative Turner, by tele-
phone, threatened an employee with possible loss of future
referrals to employment under the exclusive referral sys-
tem.
The General Counsel's major argument appeared to be
that Turner's reference to the fact that Bovinett had filed
charges gave a connotation of reprisals to be expected.
Considering the conversation in total context, I am per-
suaded that Turner did impliedly threaten Bovinett with
reprisals and that such threat had implicit meaning with
respect to future referrals. Thus, it is noted that the "refer-
ral" system was important to members and applicants as
regards their employment opportunities. Turner's last re-
marks to the effect that he would call Bovinett as soon as
his name came up on the list, and "whatever it is. and you
had better be able to do the work, Steve. Okay?" carried
with it the connotation that Bovinett was in effect being
placed on the spot and being singled out for observance.
335
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By implication, Bovinett in effect was being told that his
future referrals were in jeopardy. Considering this, the fil-
ing of charges in Case 14-CB-3300, the reference thereto
and the references thereto relating to charges in an October
20, 1976, conversation between Turner and Bovinett, I con-
clude and find that the Respondent, by Turner, threatened
Bovinett with reprisals because he had filed charges with
the NLRB, and impliedly with refusal to refer him to job
opportunities in the future. Such conduct is clearly conduct
violative of Section 8(b)(1)(A) of the Act. It is so concluded
and found.
E. Events of October 18, 1976
On October 18, 1976, Percival Harmon, an attorney for
"Land of Lincoln Legal Assistance Foundation, Inc.,"
transmitted a letter to the Respondent Union. Said letter
indicated that Harmon was acting on Bovinett's behalf.
that Harmon was investigating Bovinett's complaint of dis-
criminatory practices of referral as applied to him, and re-
quested the Union's position and explanation of the facts
related to the complaint.
F. Events of October 29, 1976; Threats of Reprisal-Loss of
Future Referrals
On October 20, 1976, Respondent's Business Represen-
tative Turner telephoned Steve Bovinett as is revealed by
the following transcript of the telephone conversation be-
tween Turner and Bovinett: 5
Turner's Call to Bovinett on October 20, 1976,
at 6:30 a.m.
Bovinett: Now go to work for who?
Turner: Luhr Brothers.
B: Alrighty.
T: At New Athena. It's right south of New Athens.
You know where the Ballwin Road is at?
B: Ah, no. Let's see . . . which way alright . . .
New Athens is . . .
T: What do you mean?
B: Which way is it to New Athens from here?
T: It's south.
B: Okay.
T: Go to New Athens and take the Ballwin Road
and as you go out of town, the job will be on your
right-hand side . . . its a road job.
B: It's a road job?
T: Yeah.
B: Who else is going to be out there?
T: Just you. I tell you what, Steve. I don't know
what you are going to do. I got some more charges
from you yesterday from the legal counsel. The people
in this Local just aren't going to work with you, Steve.
You know. So, you're going to have to make it on your
own. And, you know, I just don't know what you are
'Bosinetlt als, tape recorded this con ersati, n. I he tiple rc r ldim: .ald ;.
transcript of Ihe recording were received into (he record. 'I urner's testinlorn
acknowledges the accuracy of the transcript
going to do, and I don't really care. But, I know one
thing, you better not mess up any work. You better
take your card and travel it into some other local.
Cause, you know, a guy don't just charge ... make a
bunch of charges and cost the local a lot of money and
the people in the local keep on working with you. So,
I don't know what you are going to do. It's up to you.
And like I said, and . . . and . . . You better do the
work and better do it right. I got a dozen of letters
here now from contractors who don't want you on the
job. So, you know, you are on your own.
B: Alright.
Okey, doke, be there at 8 o'clock.
B: Ahuh.
Conclusions
The issue of the October 20, 1976, conversation set forth
above was fully litigated. The General Counsel alleged in
his complaint that the Respondent, on or about October
20, 1976, by Business Representative Turner, by telephone,
threatened an employee with loss of future referrals to em-
ployment under the exclusive referral system.
Considering the conversation in total, it is clear that the
Respondent, by Turner, threatened Bovinett with reprisals
because of his protected concerted activities in filing unfair
labor practice charges and in having Attorney Harmon
pursue the same type complaint. Such remarks by Turner
implied the loss of union good will and of future job refer-
rals for Bovinett. Such conduct is clearly violative of Sec-
tion 8(b)(l)(A) of the Act. It is so concluded and found.
G. Events of October 20. 1976, on the Jobsite
On the morning of October 20, 1976, Respondent's Busi-
ness Agent Turner visited the Luhr Brothers jobsite around
10 a.m. and spoke to Bovinett. What occurred is revealed
by the following credited excerpts from Bovinett's testi-
mony: *
A. Turner came out and told me that I was costing
the union money by filing these charges and that he
had had ten letters from contractors now that didn't
want me on the job and none of the men wanted to
work with me and he told me that I had better get a
travelling card and travel into some other local while I
was still a member in good standing, which he did
repeat about two times.
Conclusions
Considering the foregoing, I conclude and find that the
Respondent, by Business Representative Turner, threat-
ened Bovinett with reprisals and, impliedly therein, loss of
future referrals under the contractual referral system be-
cause he had filed charges relating to the referral practices.
T lurner's testimon doe'. not reallt dispute BovineIu's version of the
event. Turner. however, also testified to conversation with Bosinett about
alleged encroachment of empl,)sees. who were laborers, doing cement ma-
siens work.
336
Such conduct is violative of Section 8(b)(1)(A) of the Act.
It is so concluded and found.
H. Events of October 20-November 16, 1976
1. On October 20, 1976, in accordance with established
practice, Bovinett telephoned Turner's home, spoke to
Mrs. Turner, and asked to be placed on the idle list. What
occurred is revealed by the following transcript of the tele-
phone conversation between Bovinett and Mrs. Turner.
Bovinett's Call to Mrs. Turner on October 20, 1976,
at 4:00 p.m.
Mrs. Turner: Local 90.
Bovinett: Yes, Mrs. Turner?
Mrs. T: Ahuh.
B: This is Steve Bovinett.
Mrs. T: Yea.
B: I wanted to call in and have myself put back on
the idle list.
Mrs. T: Okay.
B: I got laid off out there today.
Mrs. T: Alrighty, I will put you down.
B: Okay, thank you much.
Mrs. T: Ahuh.
B: Bye, bye.
2. Turner credibly testified to the effect that Bovinett
was not on Respondent's "idle list" for referral use from
October 20, 1976, to November 16, 1976.
3. On November 10, 1976, Bovinett telephone Respon-
dent's Business Representative Turner. What occurred is
revealed by the following credited excerpts from Bovinett's
testimony: 7
A. I asked Mr. Turner if there was any chance of
being sent out, if I could get out for work and he told
me no, so I said, "Can you tell me where I am on the
idle list?," which he didn't answer me, so, I asked him
if he could tell me where I was on the idle list and he
told me there were a few ahead of me and I asked him
how many were on the idle list and he told me there
was a gang on the idle list and we said our goodbyes,
or whatever, and I hung up.
4. On November 16, 1976, Respondent's Business Rep-
resentative Turner telephoned Bovinett as is revealed by
the following transcript of the telephone conversation be-
tween Turner and Bovinett:
Turner's Call to Bovinett on November 16, 1976,
at 7:00 a.m.
Bovinett: Good morning.
Turner: I would like for you to go to work for Gary
Thiems.
B: Yes.
T: And this is out off of 177 at Belleville, right be-
hind . . . there is a place out there called Cousin
7Turner testified in denial that this incident occurred ( onsidering Ihc
logical consistency of facts. especially the events of November t16 1976 1
credit Bovinett's testimony over that of I urner's as to this incident
PLASTERERS, LOCAL 90
Karl's. Right behind it there is a subdivision called
Meadowbrook.
B: Alrighty.
T: And it is right in there.
B: Alrighty.
T: Okay. Hey, listen. I hear you have been making a
lot of telephone calls again.
B: Yes, I have.
T: Steve, I told you now. You know, if you go out
there and mess this thing up, you know, you better be
able to do the work.
B: What kind of work is this?
T: Well, it is cement finisher work.
B: That's all you are going to tell me what it is.
T: That is all I know. I don't know . .. But I know
it is . . . you know I think it is some steps and stuff
that you got to do. I don't know for sure.
B: Well, . . . according to our contract, you are
supposed to be told what kind of work this is going on
this job.
T: Oh, not necessarily. Not necessarily. If he wants
a special kind of man, yeah, but this is . . . he just
wants a cement finisher. You're supposed to be a jour-
neyman cement finisher. You can do anything
can. (Interrupting)
B: Well, on the basis, that I don't know what kind
of work it is. I am going to refuse it.
T: You are going to refuse it because you don't
know what kind of work it is.
B: And due to my personal safety.
T: Oh, safety ain't got anything to do with it. There
is nothing hazardous about cement finisher work. But
it's . . . all it calls for is a journeyman cement finisher.
Now, you have got to decide whether you are a jour-
neyman cement finisher or not.
B: The only thing I was asking about the job is what
kind of work it is.
T: Well, it is finisher work. I don't know what it is,
it is on houses. It is . ..ou know, hell, you've been at
it 4 years, you know what finisher work is, the same as
I do.
B: Who else is supposed to be on the job?
T: I don't have any idea. I am only sending one. I
don't know if he's got people that work for him. I
don't know if he's got somebody else there or not. I
didn't have any idea.
B: Okay, thank you.
5. On November 16, 1976, Bovinett telephoned Turner's
home and spoke to Mrs. Turner. What occurred is revealed
by the following transcript of the telephone conversation
between Mrs. Turner and Bovinett:
Bovinett's Call to Union Office on November 16, 1976,
at 4:00 p.m.
Mrs. Turner: Local 90.
Bovinett: Yes, Mrs. Turner?
Mrs. T: Ahuh.
Bovinett: This is Steve Bovinett. I was wondering if
you could tell me if I was still on the idle list?
Mrs. T: Why, I'm sure you are.
337
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B: Well, I refused work this morning and I didn't
know if I was or not.
Mrs. T: Well, I doubt if you would be any different
than . . . you would be just left on. You would just
have to wait until a job comes up again.
B: Alrighty. If I am not on, would you have me (sic)
put me back on'?
Mrs. T: Yeah.
B: Okay, thank you. Bye, bye.
6. The overall facts reveal that Bovinett's name was not
put on Respondent's idle list on November 16, 1976, as
requested, and that his name was not placed on said idle
list until June 7, 1977. Thus, Turner credibly testified to the
effect that the next telephone call that he made to Bovinett
was on December 21, 1976. Thus, if Bovinett's name had
been placed on the idle list on November 16, 1976, it
should have been on the "idle list" as of December 21,
1976. Turner, however, further testified to the effect that
Bovinett's name was not physically on the "idle list" from
mid-December 1976 until placed on said list on June 7,
1977. The facts thus persuade and I conclude and find that
Mrs. Turner did not place Bovinett's name on the "idle
list" on November 16, 1976, and Bovinett's name was not
on Respondent's "idle list" for referral use from November
16, 1976, until June 7, 1977. In total, Bovinett's name was
not on Respondent's idle list from October 20, 1976, until
June 7, 1977.8
Conclusions
Considering the facts relating to the November 16, 1976,
conversation between Respondent's Business Representa-
tive Turner and Bovinett, in connection with the overall
facts of the case, I am persuaded and conclude that the
Respondent, by Turner, threatened Bovinett with reprisals,
including by implication a reprisal of loss of future refer-
rals because Bovinett was engaging in protected concerted
activities. Such conduct is violative of Section 8(b)(l)(A). It
is so concluded and found.
Considering the facts relating to Bovinett's telephone
calls to Mrs. Turner on October 20 and November 16,
1976, the facts relating to the "idle list" and all of the facts
in the case, I conclude and find that the Respondent, by
Mrs. Turner, failed and refused to place Bovinett's name
on the idle list in accordance with standard practice, that
such failure and refusal to place Bovinett's name on the
"idle list" for referral was because Bovinett had engaged in
protected concerted activities. Such conduct by the Re-
spondent is violative of Section 8(b)(1)(A) of the Act. It is
so concluded and found.
I. Refusal To Furnish Idle List
On November 15, 1976, Bovinett wrote Business Repre-
sentative Turner the following letter:
8 I note that an exhibit in the record pertains to be a letter from Respon-
dent Union's lawyer with enclosure of a current idle list as of Januar) 24,
1977, and that such list included Bovinett's name thereon. It appears ob-
sious that the union furnished its lawyer incorrect and misleading informa-
tion and data for such lltter.
November 15, 1976
Mr. Dean Turner
Business Representative Local 90 OPCMIA
123 Meyer Drive
Collinsville, Ill. 62234
Dear Brother,
Would you please send me a copy of the present
idle list showing my position on said list? Also, would
you send me a copy of the Oct 20, 1976, idle list show-
ing my position on said list after I was laid off that day
and I called in to be put back on the idle list? Thank
you.
Fraternally,
/s/ Steve Bovinett
Mr. Steve Bovinett
320 South Fifth Street
Caseyville, Ill. 62232
On November 17, 1976, Turner sent the following letter
in reply to Bovinett's November 15, 1976 letter:
November 17, 1976
Mr. Steve Bovinett
320 S. 5th St.
Caseyville, Ill. 62232
Dear Sir and Brother
In reference to your letter dated November 15, 1976
this is to inform you that this Local Union does not
furnish copies of the referral list to anyone.
I would also like to take this opportunity to refresh
your memory of the reporting hours of Local # 90 as
stated many times in Union Meeting and also report-
ed in the International Magazine each member re-
ceived each month. The hours for reporting are Mon-
day thru Friday from 0600 to 0900 A.M. and 4:00 to
6:00 PM and no other time.
Fraternally,
/s/ Dean E. Turner
Dean E. Turner
Representative
Conclusions
It is clear that Bovinett requested information on No-
vember 15, 1976, concerning the Respondent's idle list
used for referral to jobs pursuant to contractual agree-
ments with employers. It is clear that the Respondent
Union on November 18, 1976, rejected the request for in-
formation. Board law is clear that the Respondent had a
duty to furnish such information and that its conduct in
refusing to furnish such information is violative of Section
8(b)(1)(A) of the Act. It is so concluded and found. 9
J. Failure To Refer Bovinett
I. The facts are clear that Bovinett asked to be placed
9 Local No. 324, International Union of Operating Engineers, AFL CIO
(Michigan Chapter, Associated General Contractors of America, Inc.). 226
NLRB 587 (1976).
338
PLASTERERS, LOCAL. 90
on the idle list on October 20, 1976, and would have been
placed on said idle list absent Respondent's discriminatory
conduct directed toward Bovinett. The facts are also clear
that Bovinett was not referred to any job opportunities be-
tween October 20 and November 16, 1976, and that the
"idle list" turned over several times in effect with referral
of individual employee applicants during such period.
2. The facts are clear that Bovinett had telephoned
Turner on November 10, 1976, and asked about being re-
ferred out and as to where he was on the list. Bovinett also
wrote letters on November 15, 1976, to Turner and to the
Union relating to the problem of referrals. The evidence,
however, is insufficient to reveal that such letters were re-
ceived by Turner or the Union on or before 7 a.m. on
November 16, 1976. On November 16, 1976, Turner, as
previously indicated, telephoned Bovinett with respect to a
referral to a Thiems job. The facts reveal that Bovinett
rejected this referral job on the basis that he was suspicious
of the working conditions. The facts are clear that Turner
had received a complaint from Thiems in the past about
Bovinett's work. Under such circumstances, I am persuad-
ed that the "referral" was not a referral made with bona
fide nondiscriminatory intentions. Accordingly, such refer-
ral does not negate the overall facts of discriminatory non-
referrals by the Respondent.
3. The facts are clear, as previously set forth, that
Bovinett's name was not on Respondent's idle list from
November 16, 1976, to June 7, 1977. On June 6, 1977,
Turner had placed a telephone call to Bovinett's home
around 5:30 p.m., Bovinett was out, but his wife received
the call and later told Bovinett. Bovinett called Turner on
June 7, 1977, at 4 p.m. At such time Turner placed
Bovinett's name back on the "idle list." In the June 7, 1977,
telephone conversation, Turner indicated that he had
called Bovinett on June 6, 1977, to refer him to a job.
When Bovinett asked whether he was on the "idle list,"
Turner replied that Bovinett was not on the list but that he
was calling him everytime a job came up, that he was get-
ting preference in referrals.
On June 8, 1977, the hearing in this matter opened and
continued thereafter on June 9, and June 10, 1977. As indi-
cated previously, Turner placed Bovinett's name on the
"idle list" on June 7, 1977. On the morning of June 10,
1977, before the hearing reconvened, Turner telephoned
Bovinett and offered him ajob referral. Bovinett indicated
that he was tied up in the hearing in this matter, a fact that
Turner clearly knew. Turner asked Bovinett what he want-
ed to do. Bovinett told Turner that it was up to him as
business agent. Turner testified that Bovinett's name was
stricken from the list before the telephone call, in accor-
dance with practice. Turner testified to the effect that
Bovinett's name was stricken off because he had refused
the job referral. Upon further questioning, Turner indi-
cated that since he knew that Bovinett's reason for refusal
of the referral was valid, that Bovinett's name would be
placed back on the referral list.
Considering the timing of the June 6, 1977, telephone
call and the June 10, 1977, telephone call concerning refer-
rals to jobs in connection with the scheduled hearing in this
matter, I find the evidence relating to such referrals to re-
veal a charade and that the evidence, in connection with all
of the facts, reveals a continued discriminatory attitude by
the Respondent in the referral of Bovinett. Telephoning
Bovinett in the middle of a hearing by Turner to offer him
a purported referral revealed an attempt to further a pre-
textuous defense. Further, Turner's testimony as a whole
revealed that as far as he was concerned, Bovinett was off
of the "idle list" as a result of his refusal of a referral of a
job on June 10, 1977. Turner's later testimony to the effect
that Bovinett would be placed back on the list because he
knew Bovinett had a valid reason for his refusal, in the
context of his total testimony, clearly reveals that Turner,
at the hearing, realized the way his actions looked and at-
tempted to mitigate the appearance of the facts.
4. The facts are disputed as to whether Respondent
Union attempted to telephone and was unable to reach
Bovinett on various dates between December 21, 1976, and
June 6, 1977, with respect to referral to jobs. Turner testi-
fied to the effect that he made telephone calls to Bovinett's
house on such dates and was unable to reach Bovinett.
Turner also testified to the effect that he had two members,
Eaves and Tipton, make telephone calls on the same date
as several of his own telephone calls to Bovinett. Thus,
Turner testified to the effect that he made telephone calls
to Bovinett on December 23 and 24, 1976, concerning re-
ferrals. Eaves testified to the effect that at Turner's request
he made a telephone call to a telephone number given him
by Turner and that he was unable to get an answer on such
telephone call. Tipton testified to the effect that on Decem-
ber 26, 1976, he made a telephone call to a number given
him by Turner and was unable to get an answer to such
telephone call. Bovinett testified to the effect that either he
or his wife were always in a position to answer the tele-
phone call during normal referral hours. Considering the
testimony of the witnesses and the logical consistency of all
the facts, I found Bovinett to appear a more frank, forth-
right, and truthful witness on this issue than I found
Turner, Eaves, or Tipton. I thus discredit the testimony of
Turner, Eaves, and Tipton as to the placement of tele-
phone calls to Bovinett excepting as to the telephone call
made by Turner on June 6, 1977, which was received by
Mrs. Bovinett.
Conclusions
The sum of the facts reveals that Bovinett made request
for placement on the idle list on October 20, 1976, and in
accordance with practice should have been on such "idle
list" for referral or have been referred to work with right of
return to said list if laid off at all times between October
20, 1976, and November 16, 1976. The facts reveal that
referrals were made from such list during such time in suf-
ficient number that there should have been more than one
referral per applicant on said list and that Bovinett did not
receive a referral between October 20, 1976, until on No-
vember 16, 1976. The facts also reveal clear animus of the
Respondent Union toward Bovinett because he had en-
gaged in protected concerted activities. The sum of such
facts reveals that Respondent's refusal to refer Bovinett to
work opportunities was because of such animus and that
therefore such conduct of refusal to refer Bovinett to work
between October 20, 1976, and November 16, 1976, consti-
339
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tuted conduct violative of Section 8(b)(1)(A) of the Act. It
is so concluded and found.
The sum of the facts also reveals that Bovinett made
request for placement on the "idle list" on November 16,
1976, and in accordance with practice should have been on
such "idle list" for referral or have been referred to work
with right of return to said list if laid off at all times be-
tween November 16, 1976, and June 7, 1977. The facts
reveal that referrals were made from such list during such
time in sufficient number that there should have been more
than one referral per applicant on said list and that Bovi-
nett did not receive an offer of referral between November
16, 1976, after his attempted registration, and June 6, 1977.
The facts reveal clear animus of the Respondent Union
toward Bovinett because he had engaged in protected con-
certed activities. The sum of such facts reveals that Re-
spondent's refusal to refer Bovinett to work opportunities
was because of such animus and that therefore such con-
duct of refusal to refer Bovinett to work between Novem-
ber 16, 1976, and June 6, 1977, constituted conduct viola-
tive of Section 8(b)(1)(A) of the Act. It is so concluded and
found.
In making these conclusions, I have considered all of the
evidence in the case. Reference in the factual findings has
been made to the major persuasive facts. Some of the evi-
dence and facts presented consisted of letters by Bovinett
to and from the Union. Many of these letters are basically
self-serving in nature as regards the parties who wrote such
letters. It would add nothing to an understanding of the
case to recite such facts in more detail than has been done.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section I11,
above, occurring in connection with the Employer's opera-
tions described in section 1, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative ac-
tion to effectuate the policies of the Act.
It having been found that Respondent Local 90 has un-
lawfully refused to register Bovinett on its "idle list" and
has unlawfully refused to refer Steve Bovinett for employ-
ment to employers (under contractual hiring arrangements
with Respondent Local 90 and subject to the jurisdiction of
the National Labor Relations Act) because Steve Bovinett
had engaged in protected concerted activities, it shall be
recommended that Respondent Local 90 shall be required
to refer said Steve Bovinett for employment to employers
(under contractual hiring arrangements with Respondent
Local 90 and subject to the jurisdiction of the National
Labor Relations Board) on a nondiscriminatory basis
with other registrants on Respondent's "idle list."
It is also recommended that Respondent Local 90 shall
be required to make Steve Bovinett whole for any loss of
earnings and other benefits he may have suffered by reason
of the discrimination practiced against him.' ° Said loss of
earnings shall be computed in the manner set forth in
F. W. Woolworth Company, 90 NLRB 289 (1950), and
Florida Steel Corporation, 231 NLRB 651 (1977)."
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Southern Illinois Builders Association is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Respondent Local 90, Operative Plasterers and Ce-
ment Masons International Association of the United
States and Canada, AFL-CIO, is, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.
3. By refusing to register Steve Bovinett on Respon-
dent's "idle list" for use in referral of registrants to employ-
ment in accordance with contractual hiring arrangements
with employers subject to the jurisdiction of the National
Labor Relations Act, and by refusing to refer Steve Bovi-
nett for employment to said employers, by threatening an
employee registrant with reprisals including loss of future
referrals because of such employee registrant engaging in
protected concerted activities, and by refusing to furnish
said employee registrant information related to its registra-
tion and referral system, Respondent Local 90, Operative
Plasterers and Cement Masons International Association
of the United States and Canada, AFL-CIO, has violated
Section 8(b)(1)(A) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
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:
ORDER 12
The Respondent, Local 90, Operative Plasterers and Ce-
ment Masons International Association of the United
States and Canada, AFL-CIO, its officers, agents, and rep-
resentatives, shall:
"' The period of discrimination commenced for purposes of remedial or-
der on October 20. 1976. and was continuing as of the time of the hearing of
this matter. The period of discrimination will be deemed to have ceased
when Respondent complies with the remedial order provided herein. The
restraint and coercive conduct found in this case to be violative as to the
refusal to register and refusal to refer Bovineit is conduct of a discrimina-
tory nature. The same type of remedy as would be used in an 8(bX)(2) type
violation is therefore warranted. The word "discrimination" as used herein
refers to restraint and coercion type of conduct of a discriminatory nature.
''See generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
1i 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 findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
340
PLASTERERS, LOCAL 90
1. Cease and desist from:
(a) Refusing to register Steve Bovinett on its "idle list"
for use in referral of registrants for employment with em-
ployers (subject to the jurisdiction of the National Labor
Relations Act as asserted by the National Labor Relations
Board) with whom Respondent has a hiring arrangement
or practice.
(b) Refusing to refer Steve Bovinctt for employment
with employers (subject to the jurisdiction of the National
Labor Relations Act as asserted by the National Labor
Relations Board and with whom Respondent has hiring
arrangements or practices) on a nondiscriminatory basis.
(c) Threatening employee registrants or potential regis-
trants with reprisals, including reprisals of loss of referrals
because such employee registrants or potential registrants
have engaged in protected concerted activities.
(d) Refusing to furnish information relating to "idle
lists," referral lists, or other details relating to the function-
ing of Respondent's referral-hiring arrangements with em-
ployers subject to the jurisdiction of the National Labor
Relations Act as asserted by the jurisdiction of the Na-
tional Labor Relations Board.
(e) In any other manner restraining or coercing employ-
ees or applicants for employment with any employer (over
which the National Labor Relations Board asserts jurisdic-
tion) in the exercise of rights guaranteed by Section 7 of
the Act except to the extent that such rights might be af-
fected by lawful agreements under the Act requiring mem-
bership in a labor organization.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Make whole Steve Bovinett for any loss of earnings
or other benefits he may have suffered by reason of the
discrimination practiced against him in the manner set
forth in that part of this Decision entitled "The Remedy."
(b) Place. upon request, the name of Steve Bovinett
upon Respondent's "idle list" and refer Bovinett for em-
ployment with employers (over whom the National Labor
Relations Board would assert jurisdiction) without discrim-
ination.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all idle
lists, all referral records, and all other records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(d) Post at Respondent's offices copies of the attached
notice marked "Appendix." '3 Copies of said notice, on
forms provided by the Regional Director for Region 14,
after being duly signed by Respondent's representatives,
shall be posted by it immediately upon receipt thereof, and
be maintained by Respondent for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 14, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
r 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."
341