Int'l Union of Operating Engineers, Loc. 132

National Labor Relations Board - Board Decisions

Jan 30, 1975

216 N.L.R.B. 386 (N.L.R.B. 1975)

386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union of Operating Engineers, Local
132, AFL-CIO (Stone and Webster Engineering
Corporation and Chapman Plumbing & Heating)
and Joseph Cook. Case 6-CB-2782
January 30, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On October 21, 1974 , Administrative Law Judge
John F . Corbley issued the attached Decision in this
proceeding . Thereafter , Respondent filed exceptions
and a supporting brief and the General Counsel filed
cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three -member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
Respondent excepts to the Administrative Law
Judge's conclusion that it violated Section 8 (b)(1)(A)
of the Act by failing to refer the Charging Party,
Joseph Cook , for employment on August 10, 1973. In
our view, Respondent's exception is meritorious.
From September 1970 to April 17, 1973,1 Joseph
Cook , a member of Respondent since 1958, worked
on three jobs which he had obtained without
registering on Respondent's "out-of-work" list. The
last of these jobs was at the Harrison Power Station.
When it neared completion , Cook agreed to take a
new assignment with the same employer, Union
Boiler Company , at another location . However,
Respondent 's business agent, Hardman Wilson,
learned of Cook's expected transfer to the new
project site and informed an employee at the new site
that Cook "had jumped his last job on me and I'll
stand a one-man picket line before I let him come
down there and do it again ." Having been informed
of Wilson 's intentions , the Union Boiler Company
officials declined to request that Respondent refer
Cook and instead accepted the referral of another
individual who had been on the out-of-work list for 5
months . Cook completed his work at the Harrison
Power Plant on April 17. On April 18 , Cook's wife
telephoned Respondent 's office in Clarksburg, West
Virginia, and registered Cook on the out-of-work list,
specifying that Cook desired assignment as a hoist
operator.
Respondent's office secretary, Sharon Held, tele-
phoned Cook on May 30 to offer him a referral as a
grade-all operator at Gaycon Company. Cook turned
down the offer, saying he had just been released from
the hospital. Under Respondent's hiring hall agree-
ment, Cook's refusal caused him to drop to the
bottom of the list, at least with respect to referral for
grade-all operator jobs. But this still accorded Cook a
registration effective that date. On July 11, Respond-
ent telephoned Cook with another job referral, but
no one answered Cook's telephone on that occasion.
On August 10, 1973, Respondent dispatched John
Radcliff to operate a "grader" for the Elkins Black
Rock Company; Radcliff had registered on the out-
of-work list on August 6. On August 29, a week after
Cook filed the charge in this proceeding, Respondent
once again telephoned Cook about a job referral, but
was unable to reach him. On the same day, Mrs.
Cook telephoned the hall and made an appointment
to see Respondent's business agent, Wilson, on
August 30.
During the meeting, the Cooks and Wilson
discussed Wilson's claim that Cook had bypassed the
hiring hall in obtaining prior employment. Wilson
said:
Cook, all I want you to do is when you work here
just be like the rest of the men and I'll treat you
like the rest of the men but I don't owe anybody
any special favors that go out and pick their own
jobs and work behind the hall because we've got a
hiring list and a referral list.
All I'm saying Joe is this, I don't have anything
personal against you and I'm not trying to starve
you, all I want you to do is to come in here and
I'll treat you like anybody else and I'll offer you
any job that comes up, now that's all I can tell
you.
At another point in the conversation, Wilson
protested that he never told anyone that he would
not refer Cook through the Union's hiring hall,
stating, "that's a lie, I never said anything of the
kind. I said you would get on the list and take your
turn with the rest of the men and that's the statement
I made."
On September 1, after a referral by Respondent
which he accepted, Cook went to work operating a
grade-all at Marble Cliff Quarries.
The Administrative Law Judge reasoned that
Wilson's statement that he would set up a one-man
picket if Cook jumped jobs from the Harrison
Station project to a new project demonstrated an
I All dates refer to 1973 unless otherwise noted
216 NLRB No. 76
INTL UNION OF OPERATING ENGINEERS, LOC. 132 387
animosity against Cook which, as indicated by
Wilson's remarks at the meeting on August 30, was
maintained at least until the end of August 1973. He
found that this animosity, an irrelevant considera-
tion, motivated Respondent on August 10, when
Cook was not referred to a grader's job. We disagree
with this analysis of the facts.
Wilson's statements on both occasions disclose a
resentment against Cook for circumventing the
hiring hall, but they do not establish any intention on
Wilson's part to treat Cook differently than anybody
else if he registered for work at the hiring hall. This is
what Wilson told Cook on August 30, and nothing
different was expressed or implied by him in April.
Indeed, once Cook was properly registered, Re-
spondent offered him a referral in May and tned to
reach him with another referral in July, all before
August 10, which the Administrative Law Judge
found to be the date when Respondent discriminated
against Cook. As no intervening incident or reason is
shown which would evince any change in Respond-
ent's attitude toward Cook before August 10, or
thereafter, we cannot accept the Administrative Law
Judge's conclusion that Respondent was disposed to
discriminate against Cook at all times material
herein.
Nor are we persuaded that, on August 10, Cook
was bypassed in favor of Radcliff for ajob which he
was able and willing to perform, to Respondent's
knowledge. Thejob offered Radcliff was to operate a
grader. The Administrative Law Judge made no
distinction between the classification of grade-all
operator and grader and found that Cook, who was
qualified to operate a grade-all, should have been
dispatched to the grader's job instead of Radcliff.
But his failure to distinguish between these classifica-
tions with respect to Cook's availability appears to be
without justification. Cook testified that he could
operate a grade-all, a hoist, a cherry picker, compres-
sors, or highlifts. In his August conversation with
Wilson, he stated that he could not operate tractor-
type equipment since an operation on his back. He
testified at the hearing that his doctor had instructed
him to stay off bulldozers and to work on stationary
jobs. Cook further stated that, between 1968 and
April 1973, he "worked no highway jobs." Wilson
testified that bulldozers and graders are equipment
used on road work. In view of these facts, we do not
believe that a finding is warranted that, as of August
10, 1973, Cook was available for grader work and
that Respondent, aware of that fact, denied him such
work.
On the basis of all the foregoing, we are not
satisfied that the General Counsel has established
that Respondent failed in its duty of fair and equal
representation to Cook by failing to dispatch him to
a grader's job on August 10, 1973. Accordingly, we
shall dismiss the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
JOHN F. CORBLEY , Administrative Law Judge : A heanng
was held in this case on June 19, 1974, at Fairmont, West
Virginia , pursuant to a charge filed by Joseph Cook, an
individual (hereinafter sometimes referred to as Cook or
the Charging Party), on August 22, 1973, and served by
registered mail on Respondent on the same day, an
amended charge filed by Cook on August 28, 1973, which
was served on Respondent on September 6, 1973, and a
complaint and notice of heanng issued by the Regional
Director for Region 6 of the National Labor Relations
Board on April 29, 1974, which was also thereafter duly
served on Respondent . The complaint alleges that Re-
spondent during the penod April 18, 1973, to on or about
August 30, 1973, failed to refer the Charging Party for
employment with various employers with whom Respond-
ent has an exclusive hiring hall arrangement ; that such
failure was based on arbitrary , irrelevant, and invidious
considerations; and that, by failing to refer the Charging
Party based on such considerations , Respondent acted in
breach of its duty of fair representation to the Charging
Party, thereby violating Section 8 (b)(1)(A) of the Act. In its
answer to the complaint , which was amended at the
heanng, Respondent denied the commission of any unfair
labor practices.
For reasons which appear hereinafter I find and
conclude that Respondent has violated Section 8 (b)(1)(A)
of the Act by failing to refer the Charging Party for
employment during a part of the period covered by the
complaint.
At the hearing the General Counsel and Respondent
were represented by counsel. All parties were given full
opportunity to examine and cross-examine witnesses, to
introduce evidence , and to file briefs. The parties waived
oral argument at the conclusion of the heanng . Briefs have
subsequently been received from the General Counsel and
Respondent and have been considered.
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record 1 in this case, including the briefs,
and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYERS INVOLVED
Respondent maintains a collective-bargaining agreement
with certain General Contractor Associations containing
an exclusive hiring hall whereunder Respondent refers
applicants to contractors in the West Virginia area. Two
such contractors are Stone and Webster Engineering
Corporation (hereinafter Stone) and Chapman Plumbing &
Heating (hereinafter Chapman)?
Stone , a Massachusetts corporation with its principal
office located in Boston, Massachusetts , is engaged as a
building and construction contractor in the business of
industrial and power plant construction . During the 12-
month period preceding the issuance of the complaint,
Stone purchased and received goods and materials valued
in excess of $50,000 from points directly outside the State
of West Virginia for use within the State of West Virginia.
Chapman, a Pennsylvania corporation with its principal
office located in Washington , Pennsylvania , is engaged in
the general construction business . During the 12 month
period preceding the issuance of the complaint , Chapman
in the course and conduct of its business operations has
performed services valued in excess of $50,000 for other
enterprises , including, inter alia, the General State Authori-
ty of Pennsylvania , Brockway Glass Co., and the Pennsyl-
vania State Board of Higher Education, located in the
Commonwealth of Pennsylvania, which other enterprises
annually receive goods , materials , and services valued in
excess of $50,000 from points directly outside the Com-
monwealth of Pennsylvania.
The complaint alleges , the answer as amended admits,
and I find that Stone and Chapman are now , and have
been at all times material herein, employers engaged in
commerce within the meaning of Section 2 (6) and (7) of the
Act.
II. RESPONDENT'S LABOR ORGANIZATIONAL STATUS
The complaint alleges , the answer admits, and I find that
Respondent is a labor organization within the meaning of
Section 2(5) of the Act.
III. BACKGROUND AND SEQUENCE OF EVENTS
A. Respondent 's Office in Clarksburg, West
Virginia
Respondent operates an office in Clarksburg, West
Virginia , at which it maintains an "out-of-work" list of
registrants for referral to construction work involving
heavy equipment , highway construction , and building
I Certain errors in the record have been noted and corrected
Pursuant to arrangements made on the record at the hearing General
Counsel 's Exh . 6A (transcript of a tape, which is General Counsel's Exh. 4)
and 6B (cover letter explaining that the accuracy of 6A has been stipulated
by the parties) and Respondent 's Exh . 2 (the bylaws of Respondent) were
forwarded to me at my office in Washington , D C., by the General Counsel
trades in the nearby geographical area. At this office are
located two of Respondent's business agents , Hardman
Wilson and Ed Wine, who are assisted by a secretary, Mrs.
Sharon Held. The complaint alleges, the answer admits,
and I find that Hardman Wilson and Ed Wine, at all times
material herein, were Respondent's business agents and
were agents of Respondent, acting on its behalf, within the
meaning of Section 2(13) of the Act.
B. The Background of the Charging Party,' His
Unemployment During the Spring and Summer of
1973; The Aftermath
Joseph Cook, the Charging Party, has been a member of
the Respondent since 1958 . His employment history during
the 5 years preceding the alleged unfair labor practices was
as follows: Mitchell Power Plant (Ft. Martin), Oct. 8, 1968
- Dec. 1969; McKinney Drilling Company (Harrison
Power Station), June 1970 - Sept. 1970; Union Boiler Co.
(Amos Power Plant), Sept. 1970 - Aug. 5, 1971; Union
Boiler Co. (Ft. Martin), Oct. 1971 - Dec. 1971; Union
Boiler Co. (Harrison Power Station), Dec. 1971 - Apr. 17,
1973.
Cook obtained the last three of these jobs without
registering on Respondent's "out-of-work" list.
During most of the foregoing 5-year period Cook worked
as a hoist operator. However, he also operates a grader or
grade-all, as will appear.
As the last Harrison Power Station job was nearing
completion, Cook was approached by two Union Boiler
officials, Boswell and Stevenson, who asked Cook if he
would be willing to take a job operating a hoist on the
night shift at Fort Martin, after leaving Harrison Power
Station . Cook agreed to take this new assignment if proper
referral arrangements would be made with Respondent.
The Union Boiler officials agreed that they would make
these arrangements for Cook.
Sometime thereafter Business Agent Wilson was visiting
the Fort Martin site and learned from Moyler, an
equipment operator there, that Cook's transfer to the Fort
Martin project was expected. Wilson told Moyler that
Cook was already working and could not come to Fort
Martin until his current job was finished. Wilson further
told Moyler that Cook "had jumped his last job on me"
(apparently referring to Cook's obtaining his previous
several jobs without first going on the "out-of-work" list)
and that he, Wilson, would establish a one-man picket line
before he would permit Cook to come to Fort Martin and
"do it again."
Boswell and Stevenson learned of Wilson's confrontation
with Moyler and told Cook that they didn't think Cook
would be able to take the new Fort Martin assignment
because Wilson had been at that project and stated there
that he would establish a one-man picket line to keep Cook
off the job.
and counsel for Respondent, respectively. These exhibits are hereby
received into evidence, as is the instant stipulation signed by both counsel
which appears at p. 39 of the General Counsel 's Exh . 6B. These exhibits
have also been marked by me as received in evidence The record is,
accordingly , hereby closed.
E See G C. Exh. 5.
INTL. UNION OF OPERATING ENGINEERS , LOC 132 389
Union Boiler did not request Respondent to refer Cook
to the Fort Martin job.3 When a referral request was made,
another individual who had been on the "out-of-work" list
for 5 months was instead referred to this job at Fort
Martin.
Cook completed his work at the Harrison Power project
on April 17, 1973. Mrs Cook, Cook's wife, telephoned
Respondent's office at Clarksburg on April 18, 1973, and
requested that he be registered at that time on Respond-
ent's "out-of-work" list for a hoist operator assignment.
In May 1973, Cook spent some time in the hospital to
obtain treatments which included shots in his arm. He was
released from the hospital on May 28, 1973.
On May 30, 1973, Respondent's Clarksburg office was
given a referral request from the Gaycon Company for a
grader operator. The office secretary, Held, then contacted
Wilson, who was out of town, and asked Wilson who
should be referred for this job. Wilson suggested the
Charging Party, Cook. Held then telephoned Cook who
answered the telephone and identified himself as Joe Cook.
After Held told Cook Held was calling from Respondent,
Held described the job to which Held intended to refer
Cook. Cook turned down this offer, however, noting that
he had just gotten out of the hospital.4
Under Respondent's hiring hall agreement this job
refusal caused Cook to drop to the bottom of the list at
least with respect to referral for grader operator jobs, but
this, I conclude, would also accord him a reregistration
effective that date.5
Shortly after June 1, 1973, Cook installed a telephone
answering device on his home telephone. This device, when
turned on, advises a caller that the Cooks are out, asks if
the caller desires to leave a message, and, if not, refers the
caller to another telephone number.
On July 11, 1974, Respondent telephoned Cook to refer
Cook to another job. No one answered Cook's telephone
on this occasion .6
On August 22, 1973, as previously noted, Cook filed the
charge in this proceeding.
On or about August 29, 1973, Held telephoned Cook but
was unable to reach him. On that same date Mrs. Cook
telephoned the hall and spoke to Held and eventually also
spoke to Wilson. As the result of Mrs. Cook's talking to
Wilson, Mr. and Mrs. Cook went to see Wilson at
Respondent's office in Clarksburg on August 30, 1973.
3 According to the credible testimony of Wilson in this regard
4 These findings are based on the credible testimony of Held in this
regard , which testimony is supported by a bill from the telephone company
charging Respondent for a completed call to Cook's telephone number on
that date Cook confirmed that he had been released from the hospital on
May 28, 1973, but denied that he had received the call I do not credit this
denial nor the testimony of his wife that she and Cook were not home at the
time . Cook was very nervous when he testified frequently shaking his head
and blinking his eyes Mrs Cook, while calmer, was unconvincing in her
manner in testifying on this point ; that is, the tone of her voice changed
when she stated on cross-examination that she and Cook were out of town
on that date This latter testimony added to her testimony on direct
examination which was merely that neither was at home at the time. I also
found Cook evasive when he was asked whether any of his children, who
live nearby , ever answer his telephone. I also note that the testimony of
Cook and Mrs . Cook disagree in respect to a later phone call from
Respondent in February 1974. Held impressed me as being a sincere, self-
confident witness who testified in a generally reliable manner, with one
During this meeting on August 30, 1973, Wilson engaged
in a lengthy discussion with the Cooks about Wilson's
claim that Cook had obtained his last three jobs without
going through Respondent's hiring hall. Wilson made it
clear to the Cooks that he held this claimed dereliction
against the Charging Party (more will be said about this
matter hereinafter). The discussion also dealt with the
efforts of Respondent to reach Cook over the summer of
1973. The secretary, Held, participated in this aspect of the
discussion. Unbeknownst to Wilson, Mrs. Cook recorded
about 45 minutes of this discussion, using a recording
device which was in her purse. After the tape on this device
had run out, Wilson told the Cooks, inter alia, that he had
not tried to call Cook for the preceding 50 to 60 days.
In another part of the discussion, about which more will
also be said hereinafter, Cook told Wilson that he, Cook,
would be willing to take an assignment as a grader or
grade-all operator.
On September 1, 1973, after referral by Respondent,
Cook went to work as a grader or grade-all operator at
Marble Cliffs. Cook remained with that Company until the
closing days of December 1973. He had not worked since
at the time of the hearing, although Respondent has
offered him job referrals on several occasions in the late
winter months and the spring of 1974.
Concluding Findings
The theory of the General Counsel's case is that
Respondent breached its duty of fair representation to the
Charging Party as a registrant for referral to employment
through the Union's exclusive hiring hail.7 This breach, the
General Counsel argues, grew out of Respondent's failure
to refer Cook for employment during the period April 18,
1973, to on or about August 30, 1973 and was based, inter
aka, on irrelevant considerations including Respondent's
claim that Cook had bypassed the hiring hall in obtaining
employment at the three jobs he held prior to April 18,
1973.
In its brief, Respondent, in essence , acknowledges the
requirement to operate its hiring hall in a manner whereby
all applicants are treated equally and fairly but nonetheless
advances two contentions - first, that there is no evidence
that Respondent was disposed to treat Cook differently
from its other members or registrants and, secondly, in any
event, there is no showing that it did, in fact, discriminate
against him by referring later registrants than he to jobs
exception which will appear
Further, while Cook has a son, the son was not known to be a member of
Respondent nor is there any showing that the son had just been released
from the hospital
5 See G C Exh. 2, art V, sec 17.
B This finding is based on the credible testimony of Held in this regard
and is confirmed by an entry on Respondent's referral list. While this call
was made after the answering device was attached to Cook's phone it
appears from a remark by Held (made at a meeting between Wilson and the
Cooks on August 30, 1973) concerning a call placed by Held late in August
1973 that Held did not respond to an answering device unless told to do so
The other business agent, Wine , testified that he does not "talk to
recordings " The date of this call is also confirmed by a statement made by
Wilson to the Cooks on August 30, 1973 , that he , Wilson , had not called
Cook in 50-60 days
7 Since this arrangement does not discriminate based on union
membership Cook's membership in the Union would not presumably be a
factor However, he was a union member at all times pertinent hereto
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(for which he was qualified) prior to the time it referred
him .8
I find no merit in the first contention and while I find
some merit in the second contention, I nonetheless
conclude that Respondent did discriminate against Cook
for at least part of the period specified in the complaint.
That Respondent through its agent, Wilson, maintained
an animosity against Cook based on Wilson's belief that
Cook had been circumventing the hiring hall is clear from
Wilson's admitted threat to walk a one-man picket line, if
Cook were transferred to the Fort Martin project in April
1973. This threat, as Wilson admittedly explained it at the
time, was made because, according to Wilson, Cook
"jumped the last job on me and I'll stand a one man picket
line before I let him come down there and do it again."
Wilson also maintained this feeling towards Cook at
least during the succeeding months until the end of August
1973. Indeed Wilson made such feelings clear at the
meeting between the Cooks and himself at the Union's
office in Clarksburg on August 30, 1973. Thus, Wilson told
Cook at this meeting that: "Now what started this whole
thing. When you started jumping jobs on me ...." There
followed a lengthy discussion during this meeting of
Wilson's and Cook's versions of how Cook had obtained
his three previous jobs. In Wilson's version of these
matters, Wilson indicated that he believed that Cook had
bypassed the Union's hiring hall.
Respondent, however, points to another remark by
Wilson during this conversation which, according to
Respondent, suggests a different feeling of Wilson toward
Cook. This remark by Wilson at the meeting was:
All I'm saying, Joe, is this, I don't have anything
personal against you and I'm not trying to starve you,
all I want you to do is to come in here and I'll treat you
like anybody else and I'll offer you any job that comes
up, now that's all I can tell you.
Respondent points this comment out to show Wilson's
desire to treat all members and applicants fairly and
equally. A yet further implication flowing from Respond-
ent's point here is that all Wilson sought to do was to have
Cook register at the hall like other applicants.
Unlike Respondent, I do not believe this comment by
Wilson exculpates him nor relieves him of liability for his
actions towards Cook, which will be discussed, nor his
other comments to Cook, previously referred to, on this
same occasion . For the instant comment must be taken in
the context in which it was made . That context was that
Cook had registered at the hall and had been on the
referral list since April 18, 1973. Since Cook was therefore
complying with the hall's requirements like any other
8 Respondent does not urge that its contractual hiring hall agreement
authorized it to discipline Cook for his claimed bypassing of the hiring hall.
While such conduct would be a violation of the Union 's bylaws (Resp Exh.
2), the hiring hall arrangement specifically prescribes that referral shall not
in any way be affected by union bylaws (G.C. Exh . 2, art V , sec. 1.4)
9 A similar statement relied on by Respondent to show Wilson 's lack of
bias towards Cook meets the same fate on analysis in context. This
statement - that Wilson owed no "special favors" to individuals who
"work behind the hall" - does not help Respondent's case because Cook
was not asking for any "special favors ." He merely sought referral from the
"out-of-work" list on which he had been registered for 4 1 /2 months and
registrant when the instant remark was made to him, the
inescapable inference of the remark is that the disparate
treatment accorded Cook grew not from his status at the
time but rather from his claimed failure to follow the hall's
procedures like other registrants in times past .9
I, accordingly, conclude that Respondent through
Wilson was disposed to discriminate against Cook at all
times material herein, based on a consideration irrelevant
to its duty to represent him fairly and equally. I further
conclude that this irrelevant consideration was Wilson's
claim that Cook had not been using the hiring hall's "but-
of-work" list to obtain pnorjobs.'°
There is, however, some merit to Respondent's conten-
tion that the record does not show that it failed to refer
Cook to jobs for which he was qualified - at least for a
part of the period in question here.
In order to understand this issue two matters require
some explanation - first, the equipment Cook was
qualified to operate and Respondent's knowledge of such
qualifications and, secondly, the state of the evidence in
regard to referrals of other applicants ahead of Cook.
At the hearing Cook claimed that he operates hoists,
grade-alts, compressors, and "highlifts." However, when
his wife called in to register him on the "out-of-work" list
she registered him only for the assignment of hoist
operator. Since Respondent admittedly sought on May 30,
1973, to refer Cook to a job operating a grader or grade-all,
it is obvious that Respondent was also aware of Cook's
qualifications in this regard.1' But there is no showing that
Respondent's officials at the Clarksburg office were aware
that Cook is qualified, as he claims, to run compressors or
highlifts.12 As previously noted, most of his employment
during the period 1968 to 1973 was in operating hoists.
While the record shows that a number of employment
applicants, who registered on Respondent's "out-of-work"
list after Cook did, were referred for work ahead of Cook
in the months of May and June, the record does not show
what equipment they were referred to operate. The only
showing of specific equipment involved in any job referrals
is in the month of August 1973.13
With this background, I will now determine whether,
when, and how Respondent treated Cook differently from
other applicants who sought referral during the period in
question here.
As I have previously found, the failure of Cook to
transfer from the hoist job at the Harrison Power project to
another hoist job with the same employer at Fort Martin
on April 18, 1973, was due at least in substantial part to
Wilson's threat to mount a picket line at the latter site if
Cook avoided Respondent's hiring hall in obtaining that
job. I find nothing unlawful in Wilson's action in this
instance , however, because Respondent was within its
from which other applicants had been referred for work ahead of him, as
will appear.
10 The irrelevance of this consideration is established on the face of the
hiring hall agreement itself. See fn 8, supra
11 Contrary to the testimony of Wilson , which I discredit, that Wilson's
first knowledge that Cook could operate a grade-all occurred when Cook so
informed Wilson at their meeting of August 30, 1973.
12 It is not clear whether a "highlift" is a type of loader To the extent
that it may be, I note that Cook told Wilson on August 30, 1973, that he,
Cook, did not desire to operate a loader because of his back condition.
13 G.C. Exh. 5
INTL. UNION OF OPERATING ENGINEERS , LOC. 132 391
rights to enforce the registration provisions of its nondiscri-
minatory hiring hall agreement.14 And Cook was not
registered at that time.15
Insofar as the August referrals are concerned, two hoist
operators, Strickler and Isner, were admittedly referred
ahead of Cook. However both were in fact on the "out-of-
work" list (albeit registered after Cook), had previously
worked for the same employer, and that employer had
requested their services again. Inasmuch as such out-of-
order referrals, based on a prior employer's request, are
specifically authorized by the hiring hall agreement, I
conclude that these referrals of Strickler and Isner ahead of
Cook were not improper.
A different picture emerges from the referral of grader or
grade-all operators during this period. Thus, the first such
operator shown to have been referred from Respondent's
hall for such an assignment on a date certain in August
1973 was John Radcliff, who was referred out to operate a
grader on August 10, 1973. But Radcliff had only been
registered on the "out-of-work" list since August 6, 1973,
long after Cook's registration on April 18 of the same year.
In view of Cook's earlier registration and Respondent's
knowledge (since at least May 30, 1973) that Cook was
qualified to operate a grade-all, it follows that Cook should
have been referred to this assignment ahead of Radcliff on
August 10, 1973.16
Despite Cook's prior right to such a referral, however, I
find that no effort was made by Respondent to contact him
for this assignment. I reach this conclusion on the basis of
Wilson's statement to Cook on August 30, 1973, that he
had not attempted to reach Cook for the preceding 50 to 60
days and the further fact that Respondent's records reflect
no entry of any call being made to Cook during the period
July I I to August 29, 1973.
Against the background of Wilson's long-standing
animosity towards Cook (based on Wilson's claim that
Cook had bypassed the hiring hall in obtaining prior
employment) I conclude that Respondent's failure to seek
Cook's referral to the grade-all assignment on August 10,
1973, was founded on Wilson's resentment against Cook in
this regard. While bypassing of the hiring hall on the part
of Cook, if true, might have been an infraction of
Respondent's union bylaws, bylaw infractions are specifi-
cally excluded under the hiring hall agreement as a basis to
deny referral of a registered applicant. Thus, for our
purposes here, any such prior infraction, whether claimed
or even proved, is a consideration which is irrelevant to
Cook's right to be referred from the hall. I therefore further
14 Local 357, IBT [Las Angeles-Seattle Motor Express] v. N LR.B., 365
U.S. 667 ( 1961).
15 While there is a suggestion at several places in the record of an
arrangement whereby an operator may be transferred to another job with
the same employer if the employer so requests Respondent , no such request
was made of Respondent to permit Cook to work at the Fort Martin job, an
omission I have already noted earher in this decision.
16 Respondent cannot claim that Cook was required - to register
specifically as a grade-all operator , inasmuch as its records in August 1973
show numerous referrals of applicants who indicated no equipment
preference at all when they registered for referral.
17 In the circumstances , I do not therefore credit any self-serving
testimony of Wilson, Wine, or Held that none of them were disposed to
dtscnnunate against Cook
conclude that Respondent, by not seeking to refer Cook on
August 10, 1973, for the reason I have found,17 thereby
failed in its duty of fair and equal representation to Cook
and violated Section 8(b)(1)(A) of the Act.18 I find,
however, that no such violation has been proved in
connection with Respondent's treatment of Cook prior to
that date.19
IV. THE REMEDY
Having found that Respondent has violated Section
8(b)(1)(A) of the Act by failing to provide equal representa-
tion to Cook in the matter of job referrals - such failure
being based on irrelevant considerations - I shall
recommend a remedial order requiring Respondent to
cease and desist therefrom and further requiring Respond-
ent to pay Cook a sum of money equal to that he would
have normally earned (had he been referred in proper
order) during the period August 10, 1973, to August 29,
1973,20 less net earnings during such period. Backpay shall
be computed in the manner prescribed by the Board in F.
W. Woolworth Company, 90 NLRB 289(1950), with interest
thereon at the rate of 6 percent as required by Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
I shall further recommend that Respondent notify Cook
that use of its hiring hall facilities will be available to him
on an equal basis with other applicants in regard to job
referrals.
Finally, I shall recommend that Respondent be required
to post an appropriate notice.
CONCLUSIONS OF LAW
1. Companies with which Respondent has a hiring hall
agreement and to which it made referrals in 1973 are
employers engaged in commerce within the meaning of
Section 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 refusing to refer the Charging Party for employ-
ment on August 10, 1973, Respondent failed to accord him
equal representation with other members and job regis-
trants based on -irrelevant considerations, thus violating
Section 8(bXIXA) of the Act.
4. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Section
2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
is Miranda Fuel Company, Inc, 140 NLRB 181 (1962), enforcement
denied 326 F.2d 172 (C.A. 2, 1963). The decision of the Board, and not the
court, is binding upon me . Prudential Insurance Company of America, 119
NLRB 768, 773(1957)
19 Cf Ebasco Services, Inc, 176 NLRB 896, 902 ( 1969) (failure to refer
Clark for welder 's work for which he was not qualified ), International Hod
Carriers, Building and Common Laborers Union ofAmerica, Local 341 AFL-
CIO, 146 NLRB 1358, 1367-68 (1964) (the Chitna referrals).
20 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.