DECISIONS OF NAl IONAL LABOR RELATIONS BOARD
The Metallic Lathers' Union of New York and Vi-
cinity Local 46 of the Wood, Wire and Metal
Lathers' International Union and Mack C. Grif-
fin, Pembroke Blyden, Earl Diggs, Linton
Brown, Alexander Thompson, and John A.
Cleary, and Building Contractors Association,
Inc. and The Cement League, Parties to the
Contract. Cases 2-CB-6021, 2-CB-6046, 2-
CB-6868, 2-CB-6923, 2-CB-6841, 2-CB-6851,
2-CB-6859, and 2-CB-6900
March 4, 1982
DECISION AND ORDER
BY CHAIRMAN VAN I):F WATI ER ANI)
MEMBERS FANNING AND ZIMMERMAN
On July 30, 1981, Administrative Law Judge Mi-
chael O. Miller issued the attached Decision in this
proceeding. Thereafter, Respondent and the Gener-
al Counsel filed exceptions and supporting briefs.
Respondent also filed a brief in opposition to the
General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge as modified herein.
The complaint alleges that Respondent violated
Section 8(b)(l)(A) and (2) of the Act by discrimi-
nating against nonmembers of Local 46 in the oper-
ation of its exclusive hiring hall. The Administra-
tive Law Judge found that, with the exception of
referrals for the position of job steward, Respond-
ent did not refer its members to work in preference
to nonmember registrants. In finding that Respond-
ent unlawfully refused to refer journeymen mem-
bers of other locals as stewards, the Administrative
Law Judge observed that experienced nonmember
journeymen appeared to meet the Union's criteria
for steward, and Respondent's total exclusion of
these workmen from steward referrals could only
be explained by a discriminatory preference for its
members. The Administrative Law Judge noted
that the steward referrals issue was closely related
to the complaint's allegations and was fully litigat-
ed.
Contrary to the Administrative Law Judge, we
find that the General Counsel failed to put the ste-
ward referrals question in issue at the hearing and
that Respondent was thereby denied the opportuni-
ty to litigate the matter fully and to present evi-
dence justifying its conduct. Respondent's steward
referrals were not specifically mentioned in the
260 NLRB No. 86
complaint nor were they discussed by the General
Counsel in his case-in-chief. Respondent did not re-
ceive notice of this theory until the General Coun-
sel submitted its post-hearing brief. Had Respond-
ent been aware that the matter was in issue, it al-
leges it would have sought to introduce evidence
at the hearing to show that the journeymen mem-
bers of other locals were not qualified to perform
the work required of a job steward. Since it was
not clear that steward referrals were in issue and
Respondent did not have the opportunity to pres-
ent a defense, we find that the issue was not suffi-
ciently litigated. Accordingly, we will not adopt
this finding of the Administrative Law Judge and
shall dismiss the complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the complaint be,
and it hereby is, dismissed in its entirety.
DECISION
SlTAIFMI.NI OF THE CASE
MICAixHI O. MII.I RH, Administrative Law Judge:
These consolidated cases were heard in New York, New
York, on October 31, 1978, September 17, 18, and 22,
1980, December 15-17, 1980, and January 22, 1981,
based on unfair labor practice charges filed by various
individuals in 1975 and 19771 and on an order consoli-
dating cases, consolidated complaint and notice of hear-
ing issued by the Regional Director for Region 2 of the
National Labor Relations Board, herein called the Board,
on January 23, 1978, as thereafter amended. The amend-
ed complaint alleges that the Metallic Lathers' Union of
New York and Vicinity Local 46 of the Wood, Wire and
Metal Lathers' International Union, herein called Local
46, Respondent, or the Union, violated Section
8(b)(l)(A) and (2) of the National Labor Relations Act,
as amended, herein called the Act, by unlawfully dis-
criminating against those who were not members of
Local 46 in referrals to employment from its hiring hall.
Respondent's timely filed answer denies the commission
of any unfair labor practices.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, and to argue orally. Briefs, which have
been carefully considered,2 were filed by the General
Counsel and Respondent.
I Case Ci3 6021 was filed by Mack C Griffin on September 16,
1975: Cases 2 CBi 1,46 2 CB 6686, and 2 CB-6921 were filed by Pem-
broike Blyden on ()cober 20, 1975, August 29. 1977, and October 3, 1977,
respcclively: Case 2 CB 6841 was filed by Earl Diggs on August 11,
1977: Case 2 CB1-6851 vwas filed on August 18, 1977, by l.inton Brown.
Case 2 CB1 6859 was filed by Alexander Thompson on August 23, 1977;
and Case 2 Ci3 69(X) as filed by John A Cleary oin September 16, 1977
Respondent's mtotion to strike portions of Ihe General Counsel's
brief, is. except as oltherwise indicated herein, denied That motion was
essentially a reply brief for wbhich there is no provision in the Board's
Rules and Regulations (see Sec 102 42 Ihereof)
624
THE METALLIC LATHERS' UNION OF NEW YORK
Upon the entire record, including my careful observa-
tion of the witnesses and their demeanor, I make the fol-
lowing:
FINI)IN(iS OF FACT
I. THE UNION'S l ABOR ORGANIZATION STATUS ANI)
JURISI)IC I ION-CONCI USIONS OF LAW
The complaint alleges, Respondent's answer admits,
and I find and conclude that the Union is, and has been
at all times material herein, a labor organization within
the meaning of Section 2(5) of the Act.
At all times material herein, Respondent has been
party to a series of collective-bargaining agreements with
the Building Contractors Association, Inc., herein called
BCA, and The Cement League, herein called The
League. Both BCA and The League are associations of
employers in the building and construction industry.
BCA and The League exist, inter alia, for the purpose of
representing their employer-members in collective bar-
gaining and administering collective-bargaining agree-
ments with various labor organizations, including Re-
spondent.
Dic Concrete Corporation, a New York corporation,
is a concrete subcontractor, involved in constructing
residential, commercial, industrial, and office facilities. It
maintains its principal office in Hicksville, New York.
Annually, Dic derives gross revenue in excess of
$500,000 from these operations, and annually purchases
goods and supplies, valued in excess of $50,000, directly
from points outside of the State of New York, for use in
its New York operations. Dic has been a constituent
member of The League at all material times.
John T. Brady and Co., Inc., herein called Brady, a
New York corporation with its principal office in New
Rochelle, New York, and places of business elsewhere in
the State of New York, is a general contractor in the
building and construction industry, constructing industri-
al, commercial, and office facilities. At all times material
herein, Brady has been a constituent member of BCA.
The complaint alleges. the record establishes, the
Union has stipulated, and I find and conclude that BCA,
The League, Dic, and Brady are now, and have been at
all times material herein, employers engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
11. THE ALLtEGED UNFAIR I ABOR PRACTICES
A. The Issues and Principal Contentions of the Parties
The Union operates a hiring hall for the referral of
workmen in the lathing and structural steel reinforcing
trades. The General Counsel contends that Respondent
has violated Section 8(b)(1)(A) and (2) of the Act by dis-
criminatorily giving preference in referrals to employ-
ment to its members, referred to generally as journeymen
or bookmen, and by denying referrals to nonmembers
(including those who are members of other local unions),
called permitmen. This discrimination, it was alleged, oc-
curred through the Union's failing to accord the non-
members the requisite priority for referrals and by its
permitting members to circumvent the hiring hall rules
by obtaining jobs with contractors without registering at
the union hall (direct hires) or by returning to work for a
contractor after a layoff in excess of I day (callbacks), all
to the detriment of the permitmen.
Respondent denies that its referrals were discriminato-
ry and contends that the General Counsel both misun-
derstood the priority system and failed to appreciate the
distinctions in the various kinds of work done by em-
ployees referred from the Union's hall. In regard to call-
backs and direct hires, Respondent acknowledges that in-
dividual employees sometimes secured their own em-
ployment and sometimes returned to a jobsite after a
hiatus of more than I day. It denies, however, that the
Union was in any position to effectively prevent such ac-
tions, that such actions necessarily favored members, or
that the return of employees to earlier held employment
necessarily involved layoffs such as would render their
reemployment impermissible under the hiring hall rules.
The General Counsel's case rests largely on conclu-
sions to be drawn from the computerized record of the
activities of the hiring hall from 1975 through 1979, the
so-called activity reports. Respondent contends that
these activity reports are incomplete and inaccurate.
B. Respondent'v Motions To Dismiss
Several times during the course of the hearing, and
again on brief, Respondent moved for dismissal, contend-
ing that the General Counsel's delay in prosecuting this
case required that the doctrine of laches be applied.3 My
rulings at the various stages of the hearing, denying said
motions, are adhered to herein. The unfortunate delay in
prosecuting these cases4 is not, as the Supreme Court has
held, sufficient reason for depriving employees of their
statutory rights. N.L.R.B. v. J. H. Rutter-Rex Manufac-
turing Company, Inc., 396 U.S. 258 (1969); Woodlawn
Hospital, 233 NLRB 782, 795 (1977). I have, however,
1 Respondent also argued that dismissal was mandated by Sec. 706{1
of the Administrative Procedures Act. 5 U SC 706(I). That section, ap-
plicable to resiewing courts, permitting such courts to "compel agency
action unlawfully withheld or unreasonably delayed," is not applicable
here.
4 The prehearing delay was inordinately long only in regard to the
charges filed bh (Griffin and Blyden in September and October 1975 As
to these. the General Counsel has asked, on brief, that I take official
notice of a December 8. 1975, letter from the Regional Director for
Region 2 of the National Labor Relations Board, first brought to my at-
tention as an attachment to the General Counsel's brief, purporting to
defer consideration of Case 2 CB-6046, Blyden's original charge, pend-
ing possible contempt action and/or corrective action hby the administra-
tor of the hiring hall Respondent moved to strike all references to this
letter The General Counsel did not offer it in evidence or move to
reopen the record for its receipt, neither did he explain why this letter,
allegedly contained within the Region's case file, could not have been ad-
duced during the extended hearing. Respondent, therefore, had no oppor-
tunity for voir dire or cross-examination with regard to this letter Re-
spondent could iot show. for example, when the alleged period of defer-
ral ended or whether the deferral also applied to Griffin's charge. Case
2 CB-6021 Accordingly, I must conclude that official notice of such a
document would not be proper See Seafarers International Union of
;Vorth .4roina, Pacific D:strict. 4FL-C10. and itt affihiates (-4meritan Pa-
cific Container Lines. Inc. (A.MP.4C)L 252 NLRB 736 (1980).
It is notl possible, on this record, to assess responsibility for the unfortu-
nate additional delay of nearly 2 years. from the time the hearing opened
in September 1978 until it resumed in September 1980, while settlement
prioposals were pending before the General Ciounsel in Washington, DC
625
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
considered the effect of those delays upon the availabil-
ity and reliability of the evidence adduced by all parties.
Respondent additionally moved for the dismissal of the
complaint, as amended, contending that the General
Counsel's misunderstanding of the manner in which the
hiring hall rules operated and the lack of specificity in
the complaint denied it due process of law. The General
Counsel did misapprehend how the referral system oper-
ated and that misapprehension caused the General Coun-
sel to misplead certain aspects of the alleged discrimina-
tion. However, in view of my evaluation of the General
Counsel's evidence and my disposition, on the merits, of
the issues raised herein, I need not reach the due process
question.
C. The Union, Its Work, and Geographical
Jurisdictions
Local 46 represents employees in two distinct crafts,
referred to by all parties as inside and outside work.
Inside work is the work of lathers and involves the in-
stallation of tin, wood lath, plaster partitions, and various
kinds of ceilings and the construction of arches. It is a
skilled trade, generally requiring the completion of an
apprenticeship in order to acquire journeymen status.
Outside work is the laying out or preparation of reinforc-
ing structural steel preliminary to the pouring of con-
crete for slabs, beams, and columns. Within the outside
work are various skills, both general and specific. The
specific skills, which require training or experience, in-
clude welding, tag writing, and machine operating.
The Union's geographical jurisdiction includes the five
boroughs of New York, Nassau and Suffolk Counties
(Long Island), Westchester County, and portions of
Rockland County. In certain directions, the Union's ju-
risdiction extends considerably more than 100 miles from
its Manhattan office and hiring hall.
Notwithstanding the Union's extensive work and geo-
graphical jurisdiction, technological changes, a long re-
cession in the construction industry, and the assumption
of jurisdiction by other trades had steadily reduced the
number of employees seeking work under Local 46 con-
tracts. Thus, while there were approximately 3,500 such
employees in 1973, this number decreased to about 2,700
in 1974; 1,600 in 1975; 1,000 in 1976; and 800 between
1977 and 1979.
During the relevant periods herein, Local 46 has had
collective-bargaining agreements with a number of em-
ployer associations. Included are BCA, The Building
Trades Employers of New York, The League, The Gen-
eral Contractors Association of New York, The Nassau-
Suffolk Contractors Association, The Concrete Contrac-
tors Association of Nassau and Suffolk, The Building
Trades Employers of Westchester and Putnam Counties,
and The Lathing and Furring Contractors Association.
The General Contractors Association of New York con-
sists of heavy contractors, those building bridges, tun-
nels, and heavy foundations. The League members are
contractors engaged in the concrete and steel work in-
volved in highrise construction. The Union provides out-
side workers to these employers. The employers who are
members of the Metal Furring and Lathing Association
perform inside work. Within each of the associations
there are contractors who may employ from I to more
than 100 workers from Local 46 at a time. The Union
also has contracts with several hundred independent con-
tractors who are not members of any of the associations.
D. The Hiring Hall Rules
1. Origin
In May 1968 the United States Government com-
menced an action against the Union and others under
Title VII of the Civil Rights Act of 1964, 42
U.S.C.2000e, charging that the defendants had denied
minorities equal opportunities with respect to apprentice-
ships and employment. In February 1970, a consent
decree was entered into and approved by United States
District Judge Marvin E. Frankel, which included an
agreement to establish rules and procedures for the oper-
ation of the Union's hiring hall. The agreement recog-
nized the Union's bifurcated work and extensive geo-
graphical jurisdiction and provided for equal employ-
ment opportunities for all who registered "on the open
employment list." In doing so, it stated:
All workmen shall be treated on a nondiscrimina-
tory basis and without any preference on account of
union membership or on account of time worked
under a collective bargaining agreement, except that
experience in the trade may be used as basis for prefer-
ence if it relates to the ability of the workmen to per-
form the work required. [Emphasis supplied.]
The agreement defined "work permit" as the registration
card for outside work.
The agreement provided for an administrator to over-
see and review the functioning of the hiring hall. In July
1971, Judge Frankel signed a memorandum confirming
the hiring hall rules and procedures as prepared by the
administrator, George Moskowitz, following consulta-
tions and hearings with the parties. Those rules became
effective on August 17, 1971.
2. Provisions
To the extent relevant here, the hiring hall rules and
procedures require the following: the establishment of a
master eligibility list containing the name, social security
number, and status (journeyman of Local 46, journeyman
of another local, permitman, or apprentice) together with
an indication of the outside work experience claimed by
any workman seeking specific experience referrals; the
maintenance of a daily register of workmen seeking re-
ferral to employment in New York City; and a record,
referred to as the contractors' sheets, consecutively num-
bered, of employers' requests for the referral of work-
men, showing the date and time of the request, each con-
tractor's name and location of the jobsite, the number
and category (foreman, shop steward, or insider lathers)
of workmen requested, whether any specific outside ex-
perience was required and its nature, and whether a car
was required.
The Union was called upon to submit plans or pro-
grams to the administrator for training courses for all
626
THE METALLIC LATHERS' UNION OF NEW YORK
registrants interested in acquiring training and experience
for specific experience outside work. The courses were
to be publicized to all journeymen and permitmen and
were to be held as frequently as the administrator
deemed appropriate. Those completing such training pro-
grams were then entitled to have their eligibility for spe-
cific experience referrals entered on to the master eligi-
bility list.
Workmen seeking New York City jobs register at the
hall. Workmen seeking referrals to suburban jobsites are
permitted to register either at the hall, indicating their
availability for such work, or by telephone. The business
agents are required to offer jobs in the order in which
the requests were received, to announce each job to all
registrants, to make referrals to jobsites in New York
City to those registrants present in the hall who had ac-
quired priority for such referrals (as hereafter defined),
and to refer workmen to suburban jobsites first by refer-
ence to the priority lists and then, if the requests could
not be filled from those with priority, by alternating be-
tween those who had registered at the hall for such re-
ferrals (i.e., car available) and those who had called in
seeking such work.
The hiring hall rules preclude the Union from granting
an employer's request to refer any specific individual
other than as a foreman. The Union is, however, specifi-
cally permitted to fill requests for minority group work-
men. In regard to transfers and the recall of workmen to
a jobsite, the rules provide:
VI. TRANSFERS
A. Employers are permitted to transfer workmen
from jobsite to jobsite without the men registering
in the Hiring Hall as long as there is no break in the
continuity of the employment of such 25 men. If
any workman is laid off by an employer for more than
one day, he is required to register for referral at the
Union Hiring Hall in order to obtain further employ-
ment. [Emphasis supplied.]
Priority for job referrals was acquired and recorded as
follows:
I. The Union . . . shall be required to maintain an
accumulative list for the previous two weeks of all
workmen who registered at the hiring hall . . . re-
cording the dates on which each workmen did not
obtain employment.
2. Workmen whose names appear on such list more
than 5 times in said (2) week period shall be entitled
to priority for referral. The priority sequence shall
be established by the number of days when the
workmen was not referred for employment . . .
The administrator is empowered to require that such
records as he may need to review the operations of the
hall be maintained and he is responsible for making a
computer study of the Union's records on a periodic
basis. Based on the administrator's analysis of that study
and such other information as he might receive. he has
the "power to amend, modify, revise or change these
rules of procedures, or any of the forms . . ." subject to
review by the U.S. District Court at the request of either
party. As discussed, infra, the priority rules were
changed in September 1976.
The employers with whom Local 46 has collective-
bargaining agreements were not parties to the Title VII
action, the consent decree and agreement, or the rules
and procedures for the operation of the hiring hall. How-
ever, the contracts between the Union and both BCA
and The League during all relevant times provide, inter
alia:
(I) The Union shall establish and maintain an open
employment list for the employment of competent
workmen in accordance with the Rules and Proce-
dures For Operation of Hiring Hall dated August
18, 1971 and presently in effect and referrals shall
be made pursuant to said Rules and Procedures.
(5) The hiring hall shall be the exclusive source of
workmen and no hiring shall be done at the jobsite.
The record does not establish whether these hiring hall
rules and procedures are similarly referred to in Re-
spondent's other collective-bargaining agreements. It
suggests that the Union has exclusive hiring hall provi-
sions in each of its collective-bargaining agreements.
3. Recordkeeping
As noted, the administrator is required to make a peri-
odic computer study of the activities of the hiring hall.
That study, the activity report, is drawn from three doc-
uments, the daily sign-in sheets, the contractors' sheets or
requests, and the weekly reports from each of the job
stewards which purport to identify every individual
working on the job during that week, their hours, and
their wages. Of these, only the activity reports and con-
tractors' sheets were offered and received in evidence.
The activity reports purport to show the name, social
security number, membership status (journeyman of
Local 46, journeyman of another local, permitman, ap-
prentice, or trainee), minority status, all of the dates on
which the individual registered at the hall for referral, all
referrals, whether the referral required specific skills
and/or a car, all referrals as steward or foreman, and all
employment with and earnings from the contractors who
are party to agreements with Local 46.
The General Counsel places substantial reliance on the
activity reports to establish the violations alleged in the
complaint. Respondent objected to their receipt in evi-
dence and argues that they are neither the best evidence
of the referrals nor sufficiently detailed or accurate to
warrant the kind of reliance the General Counsel would
have placed on them. These records, I find, were appro-
priately received in evidence as compilations of data
made at a time proximate to the events described therein,
from information properly transmitted by persons with
knowledge of those events, which were kept as a regular
practice in the course of a regularly conducted business
activity. (See Fed. R. Evid. Rule 803(6)). It is a common
practice in today's business world for records such as
627
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these to be kept with the aid of a computer. Properly
authenticated, and their accuracy (or the limits thereto)
established, they have the potential for greatly assisting
the factfinder.
First, in utilizing a computerized record, however, the
computer maxim of "GIGO" must be considered: "Gar-
bage in, garbage out." The report which the computer
produces is only as reliable as the information which is
placed in it. Respondent correctly asserts that these ac-
tivity reports do not warrant wholehearted reliance on
them for a number of reasons. First, the master eligibility
list, which provides the activity reports' information as
to the status of each registrant, was prepared in the early
1970's. It has not been updated for some years. There-
fore, individuals shown in the report as Local 46 jour-
neymen-members may not have been members as of the
date of their referral. Or, those shown as permitmen, i.e.,
nonmembers, may have acquired journeyman status by
the time of a reported referral. For example, Linton
Brown, one of the Charging Parties (who is incorrectly
listed in the activity reports as B. Linton), acquired jour-
neyman status in 1979; the 1979 activity report does not
reflect that change in status. Ignacia Guerrero similarly
became a journeyman in about 1978; his change in status
is not reflected in either the 1978 or 1979 activity re-
ports.
Second, while the computerized record lists all of the
days on which each individual registered for referral, it
does not indicate the order of signing in. This is signifi-
cant inasmuch as the referrals, after September 1, 1976,
were made according to the order of daily registration.
Third, the computerized record does not indicate the
possession of special qualifications, such as specific inside
and outside skills or the availability of a car, which the
registrants were supposed to record when they regis-
tered.
Fourth, the activity reports frequently fail to show
when a referral was to a suburban jobsite. That fact
would normally be established by a check mark on the
contractor's sheet under "Car Req'd" and transferred
from there to the activity reports. Often, however (and
almost universally after mid-1977), the business agents
did not check the car required box; the fact that it was a
suburban referral can be noted on the request only from
the fact that no workman signed out or from the descrip-
tion of the location. In such cases, the computerized
record does not pick up the suburban nature of the refer-
ral.
Fifth, business agents sometimes write out the nature
of specific outside skills requested but check only the
general experience box. When that happens, the referral
sometimes appears in the activity report to be one requir-
ing only general outside experience. For example, con-
tractor's sheet 27013 (November 14, 1975) was checked
as requiring only a generally experienced outside worker
but the work was described as "machine," a specific ex-
perience job. The 1975 activity report, A. Hampton,
page 473, does not show this to be a referral requiring
specific experience. See also contractor's sheet 27565,
August 5, 1976, and the 1976 activity report, pages 136
(O'Neill) and 294 (Dennis).
Sixth, the failure of a steward to transmit, or the
Union to receive, a steward's report creates a misleading
gap in the activity report, making it appear as if an indi-
vidual were referred to a job but received no earnings or
was laid off by an employer for some period of time and
was then called back. Union Business Manager Maher
testified that stewards' reports are received from most of
the jobsites. Administrator Moskowitz opined that, while
there were instances when the reports were not filed or
were untimely filed, there has been a legitimate effort
made to complete and maintain these records. He point-
ed out, however, that the stewards are workmen, not
necessarily educated, and their reports are sometimes in-
complete or illegible. Moreover, not all of the jobsites
employing workmen from Local 46 have a Local 46 job
steward. None is assigned on the smaller jobs, generally
those involving three or less men. The record does not
explain how, if at all, the stewards' reports would be
completed, or the information otherwise transmitted, on
such jobs.
I have concluded that, from an examination of the ac-
tivity reports, there have been numerous instances when
no steward's report was received. Where, for example, a
workman who has consistently registered at the hall
while he was unemployed receives a referral and then
ceases to register for some days or weeks, the inference
is warranted that he secured employment from the refer-
ral and actually worked, notwithstanding that the activi-
ty report shows no earnings for him during the period of
nonregistration. See, for example, the referral of C.
Campbell on November 5, 1975 (contractor's sheet
26978, misdated as October 5, 1978, and the 1975 activity
report, p. 582); the referral of F. Mennie on November 7,
1975 (contractor's sheet 26992, 1975 activity report, p.
465); the referral E. Donoghue on March 30, 1976 (1976
activity report, p. 89); the referral of L. Capria on March
18, 1977 (1977 activity report, p. 8); and the referral of
L. Green on April 21, 1978 (1978 activity report, p. 56).
That conclusion is also warranted from the large number
of referrals each year for which there were no reported
earnings. According to the activity report summaries
submitted as argument by the General Counsel, there
were no earnings reported for 490 of 923 assignments
(i.e., individuals referred) in the last three quarters of
1976. In 1977, there were 663 assignments out of 1,970
for which no earnings were reported. In 1978, no earn-
ings were reported for 762 out of 1,969 assignments.
And, in 1979, no earnings were reported for 863 of 2,529
assignments. Logic would dictate that the Union would
not be making, and the contractors would not be seek-
ing, the referral of so many workmen if there were no
work. The only viable explanation for this phenomenon
is the unavailability of the stewards' reports.
Comparison of the contractors' sheets with the activity
reports also reflects other errors or omissions in the re-
porting of the workmen's activities. The following are il-
lustrative and not all-inclusive: D. Lynch, a journeyman,
was referred to Civetta and Sons on July 2, 1976, ac-
cording to contractor's sheet 27486. The 1976 activity
report (p. 98) shows him commencing work for Civetta
in the week ending July 13, 1976, but does not reflect
628
THE METALLIC L ATHERS' UNION OF NEW YORK
any referral. Similarly, O'Connor, a journeyman, was re-
ferred to Bildot Steel Corporation on August 6, 1976 (in-
correctly written as 1975 on contractor's sheet 27571).
He began working for Bildot in the week ending August
10, 1976, according to the activity report (p. 304), but no
referral is shown. In some cases, either the workman's
name or social security number is illegibly written on the
contractor's sheets, preventing the transfer of informa-
tion to the activity reports. See contractors' sheet 29188,
a referral of E. DeSouter, which incorrectly reports De-
Souter's social security number; as a result, the activity
report does not pick up his referral on that date. In other
cases, individuals clearly designated on the contractors'
sheets by name and social security number are not listed
in the activity reports. Examples of this include Munz,
social security number 117-19-2884, referred on May 30,
1979, pursuant to contractor's sheet 30150, and B. Ander-
son, social security number 089-27-4416, referred on
June 28, 1979, pursuant to contractor's sheet 30269.
E. Qualifications of the Permitmen
As previously noted, the hiring hall rules were estab-
lished to provide job opportunities in outside work for
individuals who were not members of the Union. In ad-
dition, they recognize that certain kinds of outside work
require specific experience which the permitmen, gener-
ally, do not possess and they provide for the establish-
ment of training programs to enable the permitmen to
acquire that specific experience.
The General Counsel argues that the Union may not
rely on the specific experience exception to explain the
preponderance of referrals to its journeymen because it
had failed in its obligation to provide training. ' The
General Counsel further argues that any reliance placed
by Respondent on the specific experience requirements is
"bogus and not supported by the record.
The General Counsel did not contend, in its pleadings,
that the Union had breached any duty to provide train-
ing to the permitmen; moreover, no support for such a
contention can be found in this record. The Union's busi-
ness manager, Maher, testified without contradiction that
the Union had an apprenticeship program for inside and
outside workers until the early 1970's. It resumed that
program in July 1980. Since the early 1970's the Union
has participated in a training program, run by a board of
urban affairs and the "New York Plan," which has
trained permitmen for both inside and outside work. The
Union's role in that training is minimal, only approving
the program. The plan selects the individuals for train-
ing, they are trained at the jobsites by journeymen, and
they are certified as ready for journeyman status by the
plan. The Union does not question the plan's certification
of any permitman to be a journeyman. Maher testified
that the Union's original obligation had been to train
5 Some of what are referred to herein as permitmen are actually jour-
neymen in other locals; presumably, they would not require training for
specific experience outside jobs. The General Counsel treats them as per-
mitmen in the complaint and brief and alleges that they were discriminat-
ed against like the permitmen who were members of no local The Gen-
eral Counsel's summaries of the annual activity reports indicates that only
about 3 to 10 percent of the registrants were journeymen from other
locals The number and percentage of such journeymen seeking work
through Local 46's hall declined steadily from 1976 through 1979
about 90 workmen, Between 1975 and 1980, approxi-
mately 70 individuals completed the training program;s
others dropped out before completion. Additionally, the
activity reports identify a number of trainees and appren-
tices who were securing work through the Union's refer-
ral system.
According to the hiring hall rules, individuals claiming
specific experience and seeking referral to specific expe-
rience jobs were supposed to so indicate on the daily
sign-in lists. The few examples of those lists which are in
evidence do not establish that permitmen either had or
claimed to have the requisite experience. Neither was
there any other evidence that any significant number of
permitmen had the skills necessary for the specific expe-
rience referrals. There was no evidence offered or con-
tention made that the business agents falsely designated
contractor requests for generally experienced workmen
as specific experience requests in order to circumvent the
system.
Based on the foregoing, I must conclude that the evi-
dence does not warrant a finding that the Union utilized
the specific experience exceptions to the referral system
as a subterfuge for the preference of members over non-
members. The Union was obligated to refer workmen
with the experience necessary to perform the work;
where specific experience was requested they generally
referred the member-journeymen. 7 All of the journey-
man-members possessed specific experience as a condi-
tion of their journeyman status. I cannot find, on the
basis of this record, that such referrals were improper.
Additionally, the hiring hall rules permit, and the con-
tractor's sheets reveal, referrals out of order where a
contractor has requested the referral of a minority group
workman. There are minorities among the journeymen,
the apprentices, and the permitmen.
F. Evidence of Disposition To Discriminate
The General Counsel introduced the following evi-
dence, largely uncontradicted, to establish the Union's
disposition to favor its own journeymen over permit-
men."
Ignacia Guerrero was a permitman from 1970 until
1978. He worked throughout 1975 and until the week
ending April 27, 1976, for contractor H19, Horn-Sand-
Slattery. When he was laid off around May 1976, Guer-
rero complained to Business Agent Eddie O'Conner. Un-
satisfied with O'Conner's answer, he decided to wait and
make his complaint to the administrator. On May 28,
1976, Guerrero was referred to contractor D13, Dic-Un-
derhill, where he worked until sometime in the week
ending July 6, 1976. He registered virtually every day
thereafter and spoke to Moskowitz, in the hiring hall,
during December, with O'Conner present. Guerrero
complained that he was laid off to make room for the
e For example, I Christopher, I Guerrero, and Linton Brown became
journeymen
I The actirity reports evidence the occasional referral of a permitman
to a job requiring specific experience For example, see the 1977 activity
report, p 119 R. St Louis, p 174 J. Elerue, and p 266-C Peguero
I None of the rifflowing statements are alleged as independent acts of
restraint and coercion in violation of Sec. 8(b)( I A) of the Act
629
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"foreman" and heard O'Conner tell Moskowitz that the
employer only wanted machine men on the job. Guer-
rero branded this statement a lie, telling Moskowitz that
"the machine men had been there for [a] long [time] and
they only have one machine there." Moskowitz made a
telephone call and promised Guerrero that he would be
sent out the following day. He was, to a subway job.
The activity report indicates that he worked from the
week ending December 21, 1976, through the week
ending May 3, 1977, for three contractors, Horn Con-
struction Company, Hospital Building and Equipment,
and Horn-Sand-Slattery, with only the one referral.
Guerrero claimed that, when he was laid off again
around May or June 1977, he was sent to a job by Fight-
back, the organization which was largely responsible for
securing referral rights for minority permitmen. While on
this job, he alleges, a bookman questioned his presence
and Business Agent Ray Lashette had him terminated.
On the Monday following that termination, according to
Guerrero, Lashette referred him to Dic-Underhill, for
whom he worked for about 6 weeks. The 1977 activity
report does not show any employment by Guerrero be-
tween his May layoff and the commencement of his em-
ployment by Dic-Underhill in the week ending June 21.
Earnings are reported for the 7 weeks between June 21
and August 2, 1977, from Dic-Underhill, but there is no
evidence of a referral.
Linton Brown was a permitman from 1970 until he
became a journeyman-member of Local 46 in March
1979. In May or June 1977, after an extended period of
unsuccessful registration, Brown complained to Business
Agent Eddie O'Conner, stating that he had seen individ-
uals secure referrals on their first visit in the hall. O'Con-
ner told him that there were "only bookmen going out at
the time."9
In May or June 1979, after Brown had become a union
member, he allegedly was told by Business Agent Peter
McGovern that the Union could get him jobs if he
would do the Union a favor and drop the charge which
he had pending with the National Labor Relations
Board. l o
Permitman John Cleary testified that, in late 1977, a
lather foreman to whom he was related wanted to hire
him for a job where that foreman was working. When
Cleary asked Business Agent Lashette whether his refer-
ral had been requested, Lashette said that it had not.
When he asked Lashette why he had received no refer-
rals, Lashette allegedly stated that he (Lashette) had not
sent a permitman to a job in a year and that he could not
send Cleary "because cardmen are out of work." Cleary
received no referrals subsequent to this conversation. He
continued to register at the hall on an increasingly irreg-
9 The record reveals that O'Conner's alleged statement swas, at best, an
exaggeration. Permitmen were referred to work during 1977, including
during May and June See, for example, the employment and referrals of
the following permitmen, as indicated in the 1977 activity reports: K.
Linton-April (no referral), May, and August (no referral) (p. 126): B.
Sowley-June and July (p. 17); T. Thomas-April (p. 21): J. Larrieux-
June (p. 33); M. Bowery-July (p. 47); and R. Bedford--April (p 82)
'0 This conversation was the subject of a separate unfair labor practice
charge which was settled. In agreeing to that settlement, the Union did
not admit that it had engaged in the conduct charged.
ular basis through the end of 1977. He apparently did not
register at all in 1978.
Joseph Cambria, a journeyman-member of Local 308
but a permitman within Local 46, testified that sometime
between 1978 and 1980 he introduced himself to a union
delegate named Maloney and asked why he was not
being referred out when others were. Maloney asked
whether he was a permitman and stated that union work
had not picked up much. When Cambria said that he was
a "union man," Maloney allegedly replied, "Well that's
different, sit down and we will see what we can do for
you." Following this, according to Cambria, he was sent
out on a job that lasted a couple of weeks. The activity
report for 1978 reflects that Cambria registered on only 6
days (during a 2-week period in November) and received
no referrals. During 1979, he registered a total of 20
times during 20 weeks between March and November.
He was referred to an inside job (lather) on July 24 .B
T
Frank Giardana, a journeyman-member of Local 308,
has been working out of Local 46 as a permitman for the
last 30 years. Giardana testified that he overheard a con-
versation between Business Agent Johnny Ryan and a
permitman named Steve McFadden in March or April
1977. Ryan had come out of the office and read off a list
of about 25 names, to which no one responded. McFad-
den then approached Ryan and claimed to be on the pre-
ferred' 2 list. Ryan told him, "This is a special preferred
list."
Additionally, Giardana testified that when he asked
Ryan to send him out to St. Louis for work during the
spring of 1978, Ryan refused and told him that he would
have to be a bookman in Local 46. Ryan allegedly ex-
plained that the Union had previously sent others who
had then tried to force their way into the Ironworkers
Local and, because of that, Local 46 would only send its
own members out of town.
G. The Union's Referrals
Pursuant to the consent decree and the hiring hall
rules, those who registered unsuccessfully for referral six
or more times within a given 2-week period were to be
placed on a priority list from which they were to be re-
ferred ahead of all registrants who had not earned such
priority. Because of the large number of unreferred regis-
trants achieving priority, and the relatively few jobs to
which those individuals could be referred, the priority
list system bogged down. Thus, in all of 1975 and
through September 1976, referrals were still being made
from the lists of priorities achieved in December 1974.
The Union began complaining to the administrator, as
early as 1975, of the backup in the priority list system.
According to Maher, this meant that individuals whose
names were called were frequently not present in the
hall, causing a delay in the referral process as more
names were called, and the contractors were complain-
ing about the late arrival of referred employees. In
August or September 1976, Moskowitz authorized the
" Although the activity report does not show him registering again
for referral thereafter until mid-September, no earnings are shown result-
ing from the July 24 referral
12 As discussed infra, no priority list was being used in 1977
630
THE METALLIC LATHERS' UNION OF NEW YORK
Union to cease using the priority lists. He directed them
to make their referrals from the daily sign-in registers,
basing referrals on the order in which registrants signed
in and on their experience and qualifications. This
change was announced to the employees in the hall and,
subsequent to September 1976, the priority lists were no
longer utilized in the referral procedure. The Union has,
since that time, used the daily sign-in lists for referral
purposes. The priorities which registrants had been
achieving week by week after the beginning of January
1975 thus became meaningless. 3
The General Counsel acknowleges that, because of the
backlog in the priority lists, the fact that referrals
through September 1976 were being made pursuant to
lists developed prior to 1975, and the fact that there was
no evidence to indicate who had priority on any given
day, it could not establish that any particular referral was
out of priority. The General Counsel argues, however,
that the overwhelming numerical preference for journey-
men over permitmen, as reflected by the activity reports,
proves discrimination.
The activity reports show the following: 4
1. During 1975, 711 permitmen (including journeymen-
members from other locals) registered on an average of
38.5 times per man. There were only 380 referrals of per-
mitmen, averaging I for every 72.4 registrations. By
comparison, journeymen registered only about 8.3 times
per man in that year but were referred out once for
every 4.5 registrations.
2. In the second quarter of 1976' 5 271 permitmen reg-
istered 4,852 times, 17.9 times each. There were but 35
referrals, I for each 138.63 registrations; and 336 jour-
neymen registered a total of 1,574 times, 4.68 times each.
They were referred 304 times, approximately 1 referral
for each 5.3 registrations. However, when referrals for
shop stewards (46), lathers (inside work-64), and specif-
ic experience (119) are eliminated, it appears that the
Local 46 journeymen received only 75 referrals to gener-
al experience outside work in that quarter. Additionally,
the summary indicates that 96 of the referrals required a
car; 93 went to Local 46 journeymen; 2 went to permit-
men; and I went to an apprentice.
13 To the extent that the General Counsel's pleadings, and Appendixes
A and D of the amended consolidated complaint allege priorities ac-
quired on a biweekly basis but not honored in the following weeks, they
reflect a misconception of what actually took place in the hiring hall and
must be disregarded.
14 The General Counsel drew the 1975 statistics from an affidavit al-
legedly filed by a U.S. attorney in January 1979 in support of a motion
for civil contempt arising out of a Title 7 action The statistics for 1976
through 1979 were drawn from computer printouts which, allegedly, had
been attached to one of the activity reports, not otherwise identified Nei-
ther the affidavit nor the computer printout summaries were ever offered
in evidence before me. The 1976 through 1979 summaries were, however,
appended to the General Counsel's brief. It is, therefore, arguable that
these summaries and the statistics drawn from them are not properly
before me. However, while Respondent filed a motion to strike a number
of matters raised in the General Counsel's bnef, no motion to strike these
documents was filed. Accordingly, and having compared the summaries
to the activity reports and found them to be essentially accurate, I accept
them as part of the General Counsel's argument, but only to the extent
that they are based on facts contained within the record.
1' No summary for the first quarter of that year was provided and I
have omitted that period from this discussion
3. In the third quarter of 1976, 228 permitmen regis-
tered 3,188 times and were referred 37 times, I for every
86.16 registrations; and 332 journeymen registered 1,459
times. The journeymen received 313 referrals, approxi-
mately I for each 4.8 registrations. However, eliminating
from the referrals all of those contractor requests for
shop stewards, lathers, and specifically experienced
workmen, there were but 70 referrals of journeymen to
general experience jobs. Additionally, the great majority
of the requests which required a car were filled by jour-
neymen.
4. In the fourth quarter of 1976, 173 permitmen regis-
tered a total of 2,262 times. They were referred out only
nine times. During that same period, 291 journeymen
registered 1,584 times and they were referred out a total
of 209 times. However, with the exclusion of the re-
quests for inside workers, stewards, and specifically ex-
perienced workmen, the journeymen received only 40 re-
ferrals to general experience work.
5. In 1977, 603 Local 46 journeymen registered for re-
ferral 6,525 times. They were referred out 882 times. Of
those, 576 were referrals for foremen positions (11), stew-
ards (113), inside lathers (136), or required specific expe-
rience (326), leaving only 306 referrals to general experi-
ence outside work. Only 225 permitmen sought referral
in 1977; however, they registered a total of 8,041 times
during that year. The permitmen shared a total of 73 re-
ferrals, 12 of which required specific experience.
6. In 1978, 611 journeymen registered for referral
5,686 times and 564 of them shared 1,663 referrals. Of
these, 201 called for stewards, 124 for inside lathers, and
600 for specific experience. There were 738 referrals of
Local 46 journeymen to jobs requiring only general ex-
perience. In the same period of time, only 220 permitmen
registered 4,551 times and 111 received shared 265 refer-
rals, including 12 to specific experience jobs.
7. In 1979, 605 journeymen registered 5,013 times and
585 journeymen shared 2,111 referrals. Of these, 1,031
required foremen (6), stewards (170), inside lathers (233),
or specific experience (612). In the same year, 195 per-
mitmen registered 3,691 times and 115 shared 358 refer-
rals, including 32 for inside lathing work and 8 requiring
specific experience.
Local 46 introduced the last three priority lists which
were used in the hiring hall prior to the termination of
the priority list system about September 1, 1976, the lists
for the weeks ending December 2, 9, and 16, 1974. t6 On
each list are the names of all registrants who had ac-
quired priority in the 2 weeks preceding the date of that
list, including both journeymen and permitmen. The lists,
however, do not delineate the skill and experience levels
iS These it appears were the only priority lists which the Union could
find in its records. In view of the delays in the instant litigation, which
impaired the Union's ability to retain and produce all necessary records,
and the equal availability to all parties of those records which were in the
possession of the administrator, no adverse inference is warranted from
the Union's failure to come forward with additional examples of the pri-
ority lists or other hiring hall records Compare Pipeline Local Union Ao.
38. affiliated with the Laborers' International Union of North America.
AFL-CIO (tlancock-Vorthwes. J. V), 247 NLRB 1250 (1980), where the
union failed to produce evidence which was in its sole possession.
631
DECISIONS OF NATIONAL I1ABOR RELATIONS BOARD
of the registrants inasmuch as few of them had indicated
their skills and experience when they had registered.
Referrals from the priority lists were only made to
outside work, the inside work being excluded from the
operation of the rules pursuant to the consent decree.
When a contractor's request called for an inside worker
or one with specific experience, according to Maher, the
business agent would call out the job; if more than one
person in the hall was capable of filling that request, re-
course was then had to the priority list and/or the daily
sign-in sheet to determine who was first in line for that
assignment.
Examination of the priority lists in conjunction with
the contractors' requests and the activity reports illus-
trates how the contractors' requests for generally experi-
enced outside workers were filled. The Union began to
make referrals from the December 2, 1974, priority list
on October 21, 1975. On that date, the first contractor's
sheet requested two individuals with specific machine ex-
perience. The second request called for a shop steward
to do inside work. These three individuals were referred
from the hall but not off the priority list. The next re-
quest was for two individuals of general experience to do
outside work. The priority list indicates that five names
were called. Three were not present in the hall, as indi-
cated by zeros following their names. Two, R. Bauer and
G. Martin, both permitmen, were present and were re-
ferred.
There were no contractors' requests for generally ex-
perienced outside men, other than for suburban jobs, be-
tween October 21 and 29, 1975. On October 30, 1975,
four outside workers, including some minorities, were re-
quested (contractor's sheet 26970). Two nonminority
workers were sent off of the priority list, J. Dee, a jour-
neyman, and C. Cohen, a permitman (member of another
local). Two minorities, not on the priority list, were also
sent. One was Pembroke Blyden, a permitman and one
of the Charging Parties herein; the other's name is illegi-
ble.
The next five contractors' requests called for either
specific experience or inside workers. Contractor's sheet
29976, dated November 4, 1975, sought two outside
workers, one with general and one with specific experi-
ence. John Clearly, a permitman whose temporary ab-
sence from the hall on October 30 had caused him to be
passed over on that day, received the referral. Cleary is
one of the Charging Parties herein. The next request
sought a minority workman with general experience. F.
Coleman, who was not on the priority list, was referred.
The activity report indicates that Coleman was a permit-
man (member of another local) but gives no indication
that he belonged to a minority group. The same contrac-
tor, Horn Construction, requested two workers on No-
vember 5 (contractor's sheet 26978, misdated as October
5, 1975) for a job on Staten Island, New York.17 Two
minority group permitmen were sent, one of them from
his appropriate place on the priority list. Four additional
requests, contractors' sheets 26983 through 26986, re-
ceived on November 5, 1975, called for the referral of
17 Staten Island, though within the New York metropolitan area. was
considered an undesirable referral because of the difficulty in getting
there. It was generally treated as a suburban referral.
six generally experienced outside workers. All were
filled, in order, from the priority list; at least two of
those referred were permitmen.
On November 6, according to contractor's sheet
26988, permitman J. Kennedy was referred to a job at
Kennedy Airport. On November 7, a request was re-
ceived for one specifically experienced and one generally
experienced outside worker. The generally experienced
worker referred was J. C. Larrieux, a permitman. Next
referred was F. Mennie, a permitman on the priority list
who had apparently refused a referral on November 5.
All of these permitmen were drawn from their appropri-
ate places on the priority list.
On November 10, 1975, the Union filled a request for
three generally experienced outside workers. All were
drawn from their appropriate places on the priority list
and two were permitmen. A request calling for an expe-
rienced outside worker with a car was filled by C.
Satter. a permitman who was on the priority list.' 8 The
next request for an outside worker was filled by E. Wil-
liamson, a permitman who was next on the priority list.
Contractor's sheet 26999 is a request for two specifically
experienced and one generally experienced outside
worker. The generally experienced outside worker re-
ferred was permitman John Rademaker, who was next
on the priority list.
On November 12, 1975, the Union received a request
for six outside workers, four with general experience. All
four of the latter were appropriately referred from the
priority list; three of them were permitmen.
On November 14, 1975, four outside workers were re-
ferred. All were permitmen and all came off the appro-
priate places on the priority list. One was Pembroke
Blyden. A call for one generally experienced worker, on
November 18, was filled by N. Gordon, a permitman
from the priority list. A request for two generally experi-
enced workers on November 19 was filled by M. Jarulli
and Ivory Vaughn. Both were drawn from their appro-
priate places on the priority list. The activity report
shows Vaughn to be a journeyman but does not reflect
any referral on or about November 19, 1975. There is no
reference in the activity report to Jarulli.
Local 46's referrals from the list of those who had ac-
quired priority as of December 16, 19 7 4 ,'9 follows a sim-
ilar pattern. The Union began calling names from that
list on May 20, 1976. The first name was D. Conte. He
was referred, but there is not entry in the activity report
for him.
'a Both contractor's sheet 29996 and the priority list so indicate. How-
ever, the activity report shows neither a referral nor earnings for Satter
at this time.
" In the interest of achieving some degree of brevity, I have omitted
any detailed discussion of the Union's referrals from the December 9,
1974, priority list. That list was in use between November 24, 1975, and
May 20, 1976. Comparison of that list with both the contractors' sheets
and the activity reports establishes that all requests for nonsuburban gen-
eral experienced outside work received in that period were filled, in
order, by permitmen (including journeymen from other locals) with pri-
ority Additional permitmen were occasionally referred, without refer-
ence to the priority list, in response to requests for minority workers and,
in one case, to a job ton Staten Island where the request did not specifi-
cally seek a minority (C. Campbell, March 24, 1976)
632
THE METALLIC LATHERS' UNION OF NEW YORK
On May 24, 1976, Respondent referred two permit-
men, R. Sterling and T. Skehill. They had been missed
when their names were called off the December 9, 1974,
list and there is a notation on the contractor's sheet to
that effect.
On May 28, 1976, the Union responded to a request
for three generally experienced outside workers by refer-
ring Guerrero, Cotter, and Dyre, all permitmen. Cotter
and Dyre, but not Guerrero, were the next available in-
dividuals on the priority list. (See discussion, I1,F, supra.)
On June 2, Respondent referred A. Coppola, a permit-
man (journeyman in Local 102), who had missed his call
from the list on May 20, 1976. The next request for an
outside worker was filled by K. Linton on June 4, 1976.
Linton's name does not appear on the priority list; he
was a minority group permitman. On June 9, 1976, the
Union referred F. Graber, a journeyman from Local 244
who was next on the priority list. On the same day it
also referred four other generally experienced workers,
N. Gordon, D. Grote, J. Ferrick, and S. Guinta, along
with three specifically experienced workers. All four of
the generally experienced workers were permitmen. On
June 10, the Union referred two more generally experi-
enced individuals, S. McFadden and J. Mooney; both
permitmen. McFadden's referral is established by the
contractor's sheet and the activity report; the priority list
would appear to indicate that he did not respond to the
call of his name. Another permitman, M. Monaghan, ap-
pears from the priority list to have been referred on June
10, 1976. Neither the contractors' sheets nor the activity
reports show any such referral.
On June 14, 1976, according to contractor's sheet
27450, J. Figueroa, a minority group journeyman, was
referred to a general experience job. Figueroa's name
does not appear on the priority list. On June 15, 1976,
the Union filled a request for a generally experienced
worker by referring W. Felton. Felton, who was not on
the priority list, was a minority group journeyman.
No further referrals from the priority list were made
until July 13, 1976. However, according to contractor's
sheet 27485 and the 1976 activity report (p. 411), the
Union apparently referred Walter Lee, a journeyman-
member, to a job requiring only general experience on
July 7, 1976. Lee's signature on the contractor's sheet
would indicate that it was not a telephonic referral.
On July 7, according to contractor's sheet 27491, the
Union also referred R. Regulus, a permitman (journey-
man member of Local 7), to a general experience job.
According to the priority list, Regulus had been appro-
priately referred on June 18; however, the activity report
indicates the possibility that he received no earnings
from the June 18 referral. There are no notations on the
priority list to explain this second referral. 20
On July 14, 1976, Pembroke Blyden was referred off
the priority list. On July 20, A. DiPietto, a permitman
(journeyman in another local), next on the priority list to
be present in the hall, was referred. Similarly referred in
order, on July 22, was R. Sterling and, on July 26, J.
McKennan and D. Jessup, all permitmen.
20 The contractor's sheet shows an incorrect social security number
for Regulus; it is correctly set forth on the priority list,
On July 26, 1976, the Union referred four individuals
to W. J. Barney, according to contractor's sheet 27538.
J. Irwin, a permitman, was referred from the priority list
to a general experience job. Sheehan, a journeyman, was
referred for a specific experience position. Two other
journeymen, R. Gogatz and W. Heushkel, were, accord-
ing to the 1976 activity report (pp. 62 and 86, respective-
ly), referred pursuant to that same contractor's request to
general experience positions. Gogatz, it appears, had not
registered at the hall at all prior to his referral; the activ-
ity report indicates that he registered on Friday, July 30,
1976. Similarly, Heushkel had not registered at the hall
since April and appears to have registered on Monday,
August 2, 1976, notwithstanding that he worked at the
Barney jobsite in the week preceding and the week fol-
lowing that registration. Heushkel did not sign out on
contractor's sheet 27538; his referral may have been tele-
phonic.
A request for generally experienced outside workers
was received on August 4, 1976, and was filled by the
next two available registrants on the priority list, both
permitmen.
On August 11, 1976, according to contractor's sheet
27580, the Union had a request for two minorities. Three
individuals were referred, one nonminority permitman
from the priority list and a journeyman and a permitman,
both minorities, who were not on the priority list.
On August 16, 1976, the Union referred four outside
workers to Costello Concrete Construction Co. Three, a
minority permitman, a nonminority permitman, and J.
Tucker, who is not listed in the activity report, were re-
ferred from the priority list. A fourth, a minority permit-
man, was referred without having been on the priority
list.
On August 31, 1976, the Union completed the Decem-
ber 16, 1976, priority list with the referral of three indi-
viduals off that list to general experience jobs. At least
two, R. Mohamed and D. Thomas, were permitmen. The
third, M. Jarulli, was not listed in any of the activity re-
ports.
After August 31, 1976, referrals were no longer made
from the priority lists. The administrator authorized the
Union to make its referrals directly from the daily sign-in
sheet. The record contains only a few examples of the
daily sign-in registers for the period following the dis-
continuance of the priority lists, those which the Union
was able to locate among its records. 21 They are the lists
for July 7 and 14, 1977, February 15, 1978, and April 7,
1978.
The Union received four requests for the referral of
employees on July 7, 1977, as reflected by contractor's
sheets 28638 through 28641. The first request sought six
employees, with no indication of specific experience, to
work at Kennedy Airport. Six individuals were sent out
of the hall. The names of four appear on the July 7,
1977, sign-in list; 22 two, Hoist and Dunlay, do not
appear from that list to have signed in. However, while
Dunlay's name could not be found on the sign-in list, the
activity report, supposedly drawn from that list and from
2I See in Ih, iupra
22 M(iulnrinss, Walker, Fellon, and Hughes
633
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other documents, indicates that he did sign in on that
day. All of those referred to the Kennedy Airport jobsite
were either journeymen or their status could not be de-
termined because their names were missing from the ac-
tivity report. The next request, contractor's sheet 28639,
sought an inside worker for lath. B. Croake, a journey-
man, was referred. His name and social security number
do not appear on the July 7, 1977, list. The activity
report reflects that he signed on Tuesday and Wednes-
day, July 5 and 6, 1977. Contractor's sheet 28640 called
for the referral of four individuals, three with general ex-
perience and one with specific experience, to a nonsubur-
ban job. All four of the referred employees were on the
sign-in list and the three who were referred to the gener-
al experience positions were all permitmen. 23 The fourth
request for that day, contractor's sheet 28641, called for
the referral of two individuals for a suburban jobsite,
Rockville Center (Nassau County). The two who were
referred did not sign out and their names were not on
the sign-in sheet. The only one who was identifiable by
his social security number, McAleavey, was a journey-
man who, according to the 1977 activity report (p. 309),
was referred as a lather, a fact not registered on the con-
tractor's sheet. The activity report fails to reflect that the
referral was suburban.
The Union recorded five referral requests on July 14,
1977. The first, contractor's sheet 28649, sought two in-
dividuals with no specification as to experience. Referred
were John Dorritie, who was the first, and R. Baumann,
who was the 14th to have signed in on that day. Both
were journeymen. The second request similarly did not
specify any particular experience. It was filled by the re-
ferral of Harry James, the fourth person to sign in. James
was a minority apprentice. The third request called for
the referral of four generally experienced outside work-
ers. Referred were Larry Capria, Pembroke Blyden,
Mack Griffin, and John Hughes. They had signed in
second, fifth, sixth, and seventh that morning. Griffin
and Blyden are permitmen and both are Charging Parties
herein. The fourth referral, contractor request 28652,
called for two individuals to work in Long Island City
(suburban). Two journeymen, Anderson and Faulkner,
who had signed in 9th and 13th, respectively, were re-
ferred. Only one individual, Larry McCallum, had regis-
tered on July 14, 1977, that he had a car available. There
is no explanation of why McCallum, a journeyman, who
was third on that day's list, was not referred ahead of
either Anderson or Faulkner. The final contractor's re-
quest of July 14, number 28653, called for three individ-
uals and did not specify particular experience. The three
who were referred, Johnson, Rogers, and Shea, all jour-
neymen, were numbers 15th, 16th, and 17th on the day's
sign-in list. Of 18 individuals who signed in on July 14,
1977, 12 were referred to employment. There is no evi-
dence that anyone not on the sign-in list was referred. Of
the six who were not referred, three were journeymen,
two were permitmen, and the status of one, F. Puine,
could not be determined because he was not recorded in
the activity report.
23 Wells. Threatt, and Powers.
Contractors' sheets 28983 and 28984 reflect the re-
quests for the referral of workmen received by the Union
on February 15, 1978. Only two workmen were request-
ed, one with specific machine experience and the other
as a lathing foreman. The two who were sent, both jour-
neymen, were the first two signatories on the list for that
day.
Two contractors' requests were received on April 7,
1978, the date of the last sign-in list in evidence. Con-
tractor's request 29097 (missing from the exhibits but re-
flected in the activity report) resulted in the referral of
E. Zavodsky, a journeyman, to a job requiring specific
experience. Zavodsky was the first person to have signed
in on April 7 (1978 activity report, p. 163). The second
request, number 29098, called for a machine operator on
a suburban jobsite. The referral to R. Degnan, a journey-
man, was made telephonically. The record does not re-
flect why J. Hatcher, or T. F. Helmke, both journeymen,
was passed over for the suburban referral notwithstand-
ing that they had registered as having cars available. No
others who had signed in on that day had so indicated.
Comparison of the April 7, 1978, sign-in list with the
1978 activity reports establishes that, other than Za-
vodsky, no one was referred from the hiring hall on that
day. Of the first 15 to register on that date, all but 4
were journeymen; the 4th registrant was an apprentice
(M. Deverelly), and the 7th, 9th, and 13th registrants
(Blyden, Moton, and Duggins, respectively) were permit-
men.
In addition to the statistical arguments, the General
Counsel, on brief, points to several specific situations
which he contends demonstrate the Union's discrimina-
tion against permitmen. The General Counsel cites the
"four referrals for journeyman Christopher in 1975 de-
spite the infrequent number of times that he signed in
that year." The 1975 activity report (p. 225) reflects that
after signing in four times in February and again on
March 3, 1975, Christopher was referred to a job on that
latter date. He worked 11 hours and earned $114.20. He
registered four more times during March and twice in
April and was referred again. However, according to the
activity report, he received no earnings from that second
referral. In this, the activity report appears to be accu-
rate because he continued to register on the remaining 4
days of the week following his referral. He signed in,
without securing any referrals, 15 more times in the re-
mainder of April, May, and June. On August 22, after
signing in once, he received a referral to the same con-
tractor, at a different jobsite, as his last referral. He
worked approximately 6 days. He then signed in six
times before his next referral on October 2, 1975. The ac-
tivity report contains no record of earnings from this re-
ferral. According to the activity report, Christopher was
a member of a minority group. Additionally, his last two
referrals in 1975 were to specific experience jobs. There
is no evidence in the record regarding Christopher's
standing on the priority lists which were in use at the
time of his 1975 referrals.
The General Counsel points to the referrals to a Dic
Concrete Corporation jobsite (contractor and job number
D12038) during the latter part of 1976. Fifteen individ-
634
THE METALLIC LATHERS' UNION OF NEW YORK
uals are listed as having been referred to that jobsite; 14
are journeymen. Assuming that the General Counsel's
listing includes all of the individuals employed at that
jobsite during this period of time (an assumption which
may not be warranted from the inaccuracies noted in the
activity report and from the difficulty of manually cull-
ing all of the referrals to a single jobsite from the 463
closely typed pages of computer printout which com-
prise the 1976 activity report), the following may be
noted concerning those journeymen: Five (Early, Fitzpa-
trick, Brunicarde, York, and McHugh) were not re-
ferred. They were transferred there from other Dic job-
sites. Three (Kennedy, Rundie, and Trusley) were re-
ferred on the basis of specific experience and a fourth
(Harrington) was referred as steward. Two (Ryan and
Finn) apparently were not referred at all but secured the
job on their own. One (Morrissey) was referred after
signing at the hall on virtually every day for 5 weeks;
and another (Abdullah) was a minority. The General
Counsel correctly states that many permitmen had regis-
tered in the Union's hall regularly during that period and
presumably were available to work on this jobsite.
The General Counsel compared the referrals of per-
mitman Ernest Moten with those of journeyman Jimmy
Hatcher during 1976 and 1977. Both had worked
throughout 1976 at a jobsite designated as P48002. The
1976 activity report (p. 439) shows no earnings for
Hatcher at that site after the week ending December 7,
1976. Hatcher registered at the hiring hall nearly every
day from the beginning of January until the week ending
March 4, 1977. Then, according to the 1977 activity
report (p. 294), he returned to jobsite P48002. No refer-
ral is shown. He worked there until the end of May
1977, registered for referral three times, and was referred
to a specific experience job on June 13, 1977. He worked
at that job, on and off, until late September 1977. He re-
ceived no additional referrals in 1977, notwithstanding
his fairly frequent registration. Moten registered at the
hiring hall virtually every day in 1977 and received no
referrals until mid-August of that year.
The General Counsel cites the jobsite to which Moten
was referred in August 1977, another Dic job designated
as D13160, as evidencing discrimination. According to
the General Counsel, there were 36 individuals on this
jobsite in July and August 1977, 31 journeymen, 4 per-
mitmen, and I trainee. The activity report reflects that
12 of the journeymen (McEnna, Murray, McGinn,
Gogatz, Wittech, Dillon, J. Pyne, R. Pyne, Skehill,
O'Connor, Anderson, and J. Ryan) were referred on the
basis of specific experience. W. Ryan was referred as the
steward. Sixteen of the journeymen (Hicks, Baumann,
Finn, Dorritie, Horan, King, Coyle, Daly, McGowan,
Ward, O'Neill, Scanlon, Maine, Figueroa, Young, and
Considine) were not referred at all; rather, they were
transferred by Dic from other jobsites, as permitted by
the hiring hall rules. Only two of the journeymen,
McHare and O'Connell, were referred to the jobsite to
occupy general experience jobs. 24
24 The General Counsel also pointed out that two of the permitmen.
Moten and Rodriguez, only worked 21 hours al this jobsite following
their referral. However, the General Counsel made no contenilon, and
there is no evidence, of discriminatory assignment of permitmen to Jobs
The General Counsel also relies on a Horn Construc-
tion Company jobsite, H06002, which, he contends, was
overwhelmingly staffed by journeymen while permitmen
lanquished in the hall. The 1979 activity report allegedly
(see the earlier expressed caveat) shows that there were
21 workmen on the jobsite, all but 2 of whom were jour-
neymen. Seven of these (Brennan, Douglas, Scheld,
Montelcove, Shannon, Crowly, and Griffin) were re-
ferred on the basis of specific experience. Six or seven
others (Murtha, Lamb, Dorritie, Maloney, Hampton, An-
derson, and Faulkner) apparently transferred to this site
from another Horn site in either 1976 or 197 7.25 Addi-
tionally, two of the journeymen (Walker and Frazier) are
minority group members. One of the remaining journey-
men, Hohs, had unsuccessfully registered nearly every
day between the beginning of the year and the start of
his employment for Horn in mid-April 1977. He worked
on this site for less than 2-1/2 weeks.
In like vein, the General Counsel cites the Dic-Under-
hill jobsite, D13161, where, according to his analysis the
activity report, there were 35 individuals working, 28
journeymen, 6 permitmen, and 1 apprentice; the activity
report reveals that 8 of the journeymen (Walsh, Fowler,
Harrington, Ryan, McKiernan, Briney, K. Hayden, and
O. Hayden) were referred to specific experience jobs.
Nine of the journeymen (McKenna, Ness, Harris, King,
Hohs, Richardson, Tarvers, Scanlon, and Carhart) were
transferred by the employer from other jobsites. The
record is unclear, but a 10th, Lancelot, may similarly
have been transferred. One journeyman, Lawlor, was re-
ferred as the steward. Ten journeymen were referred to
general experience jobs, as were four of the permitmen.
Two permitmen (Elerue and Peguero) were referred to
specific experience jobs. 2fi
Finally, in this regard, the General Counsel alludes to
a nonsuburban jobsite, M17007, on which, he contends,
17 individuals were employed during August and Sep-
tember 1977. Of these 17, 15 were journeymen, I was an
apprentice, and only I was a permitman. Examination of
the activity reports indicates the following: 8 of the jour-
neymen (Duffy, Holland, Morton, Scott, Fitzpatrick,
Filen, Devlin, and King) were referred to specific experi-
ence positions; one (Tiernan) was referred as the job ste-
of short duration I note that journeyman J Pyne, who was referred on
the same day as both Moten and Rodriguez, August 17. 1977. similarly
worked for only 21 hours
"' Faulkner worked for Horn through nearly all of 1976 (1976 activity
report, p. 253) The 1977 activity report (p. 177) shows neither registra-
tions nor employmenl for him from the beginning of 1977 until the week
ending April 5. 1977. when he is shown as working at this same jobsite
with no new referral
:~ The General Counsel pointed out that, of the six permitmen referred
to this job, four worked for less than 2 days and only two worked for
more than 2 weeks (assuming the accuracy of the actis ity report) I note.
however. that journeymen who were referred for general cAperience jobs
or for whom there is no notlation of specific experience in the activit)
report, fise (McKenna. Vaughan, Murphy. Stetzer. and McMurray) ap-
parently worked only 7 hours each Two other journeymen referred to
general experience jobs (Reddy and Morrissey) worked 35 or less hours
The two perniimen awho) received more than 2 weeks employment
(Elerue and Peguero) were the two referred to specific elperience jobs
It appears from this scry narrow sample that individuals referred to spe-
cific experience jobs may stand a better chance of securing sustained em-
plon! ment
635
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ward; two journeymen (Gallagher and Galvin) were not
referred at all-they apparently secured their employ-
ment themselves; and one journeyman (Abdullah) was a
minority. Two of the journeymen referred to general ex-
perience jobs (Ledwith and J. Callagher) had been sign-
ing in regularly prior to their referral, but the activity
report does not reflect any registrations by journeyman
Moore prior to this referral to a general experience posi-
tion. Thus, of the five referrals on this site which did not
appear to require specific outside experience, one was as-
signed to a minority journeyman, three were assigned to
other journeymen, at least two of whom had been sign-
ing in regularly for some time prior to their referrals,
and one was assigned to a permitman.
H. Suburban, Steward, and Foreman Refirrals
As previously discussed, the hiring hall rules permit
suburban referrals, i.e., those to jobsites outside the city
of New York, to be made to workmen who telephone in
their requests for such assignments as well as to work-
men to register in the hall. The General Counsel con-
tends that the preponderance of suburban referrals to
members establishes discrimination in the referral pro-
cess. Similarly, the General Counsel further argues that
the foreman and steward categories were used to exclude
permitmen from the referral process.
A random sampling 2 7 of those contractors' sheets
which appear to request suburban referrals (either the
car required box was checked or there was no employ-
ee's signature) in conjunction with the activity reports
(to ascertain the status of the referred workman) sup-
ports the General Counsel's contention that most of the
suburban referrals were received by members of Local
46. Thus, in a random sample of 50 ostensibly suburban
referrals made during 1975, only 14 went to permitmen.
However, at least 15 of the remaining 34 were referrals
to inside work, required specific experience, or called for
the referral of a steward. In 1976, only 2 of the randomly
selected 50 referrals were received by permitmen; how-
ever, 25 of the referrals were to specific or excepted job
categories. In a sampling of 52 1977 referrals, none went
to permitmen and only I went to an apprentice. Eight of
those referrals were to general experience jobs. Similarly,
in the sampling of 53 suburban referrals in 1978, none
were made to permitmen and only I was made to an ap-
prentice. Thirty-six of those referrals, it would appear,
were to general experience jobs. And, the sample of 1979
referrals yields a virtually identical result; of 57 referrals,
including 42 for general experience jobs, I went to an
apprentice and the remainder were assigned to journey-
men.
In considering the foregoing statistical analysis, it must
be noted that the record is devoid of any evidence that
permitmen sought suburban referrals. The activity re-
ports do not record whether, in signing in, an individual
claimed to have a car available. The few sign-in registers
in evidence do not show any permitmen specifically
27 Neither party analyzed the suburban referrals In the absence of
such an analysis, a random sample would appear to he the most appropri-
ate vehicle to determine how. and to whom, these referrals were being
made
seeking suburban work. 2s No permitmen testified to
having sought such referrals or to having made their
availability for such referrals known in the hiring hall.
Analysis of the activity reports corroborates the Gen-
eral Counsel's assertion that referrals as stewards were
received, almost exclusively, by journeymen-members of
Local 46. Of approximately 800 such referrals between
1975 and 1979, less than 15 went to either permitmen or
apprentices. Maher testified that the stewards were se-
lected by the business agent responsible for a given terri-
tory, without reference to any priority list, on the basis
of qualifications, experience, rapport with people on the
job, self-confidence, knowledge of the work, ability to
read blueprints, and knowledge of the Union's constitu-
tion and the collective-bargaining agreement.
Very few foreman referrals are reflected in either the
activity reports or the summaries, less than 25 in all for
the years in question. All appear to have been journey-
men and, with only one or two exceptions, all were
members of Local 46. Maher testified, without contradic-
tion, that in almost every case the foremen were selected
by the contractors, as authorized by the hiring hall rules.
The Union rarely had the opportunity to designate a
foreman.
I. Callbacks and Direct Hires
As described above, the hiring hall rules require that
all requests for outside workers be filled by union refer-
ral and that all workmen "laid off by an employer for
more than one day return to the hiring hall and register
in order to obtain further employment...." The Gen-
eral Counsel contends that the Union discriminated
against permitmen by permitting "members, after a layoff
in excess of one day, to return to work for the same con-
tractor or at the same jobsite." The complaint further al-
leges discrimination by permitting "individuals to obtain
jobs with contractors at the jobsite without registering at
the Union's hall."
The Union, by statements of counsel at hearing, in its
brief, and in the testimony of James Maher, its business
manager, acknowledges that the applicability of these
hiring hall rules and admits that the provision precluding
callbacks "was really for ten years observed more by its
breach than by its observance...." In this regard, the
Union pointed out that there was no agreement or under-
standing with the contractors as to when a temporary
shutdown, for such things as a lack of supplies or ad-
verse weather, was a layoff which would come within
the terms of this rule. The Union also admits that some
workmen secure their jobs directly, without referral.
Maher testified that many of the contractors, particularly
the smaller ones, seek to retain as steady a work force as
possible, notwithstanding temporary interruptions in their
employment. Maher was aware that such practices went
2" The activity report summaries appended to the General Counsel's
brief purport to state the number of "car available" registrations bh both
journeymeil and permitmen Such statistics, howsever, would have to be
drawn from the sign-in registers Since those registers are not in evidence
and those statistics therefore cannot he reviewed for accuracy and chal-
lenged, consideration of those portions of the summaries would be im-
proper See S. Freedman Electric, Inc., 256 NLRIB 42 (1981)
636
THE METAI.LIC LATHERS' UNION OF NEW YORK
on; he did not believe that he could burden a contractor
to start with new employees when other employees who
were familiar with the work had been employed by him
for substantial periods of time.
Maher further testified that the Union had made ef-
forts to discourage or prohibit the direct hiring or call-
back of employees by talking to the contractors and by
holding discussions with and sending letters to its mem-
bers. No examples of such letters were offered. Neither
was there any testimony from members to corroborate
that such discussions had been held. The Union did not
utilize its internal procedures to stem the direct hiring or
callbacks by either threatening or imposing internal
union discipline.
Maher also testified that it was difficult for the Union
to learn about the callbacks or direct hires at a time or in
a manner when effective action could be taken. The
steward's reports come into the Union's office in large
numbers, frequently after a job has been completed.
Moreover, they are not reviewed by the business agents;
clerical employees code and forward them to the admin-
istrator for entry into the computerized record. The
computerized activity reports are received by the Union
6 to 8 weeks after the end of each calendar quarter.
They are not so current as to provide the Union with
evidence of existing callback and direct hire situations,
even if the Union were willing to take more direct action
to prohibit such employment.
The General Counsel introduced compilations from
the computerized record which purport to list all of the
nonreferral hirings and callbacks of journeymen from
1975 through 1979. As reflected in those compilations,
the activity reports contain many instances of what
appear to be the direct hiring of journeymen by the con-
tractors. 29 It would serve no useful purpose to reiterate
them here. Most, but not all, are what the General Coun-
sel represents them to be.30
That journeymen were hired directly is not disputed
by the Union. However, examination of the activity re-
ports establishes that permitmen also benefited from
being hired directly. The following are a few examples
of what appear to be direct hires of permitmen:
NVame Week Ending
Namenc
1976
J. Hyman
B. L cahy
M. Larkin
E Leahy
R. Hunter
1977
P. Thomas
T. Mullin
G. Williamson June 14
K Linton
Linton Broswn
I Guerrero
1978
S. Wright
J. McGee
G. Ball
R. Perrerira
P. Blyden
1979
R. Archer
J. Malone
R. Fairfax
G. Williamson July 3
Linton Brown
1Week Ending
.4ctivity
Report
Page
Jan 27
April 27
Feb. 3
April 6
Oct 5
30
60
60
67
123
April 19
May 17
124
Aug 16
Aug. 9
June 21
21
118
126
127
236
Sep. 5
Dec. 5
April 18
June 4
July 7, Nov. 21, and
Dec. 5
Oct 2
Jan. 9
Oct 16
139
May 25 and 29
13
29
162
204
207, 208
4
14
20
142, 143
The situation in regard to the callback of workmen is
similar. Thus, the General Counsel introduced compila-
tions which list, essentially accurately, many instances
where it appears from the activity report that a journey-
man worked for a particular contractor, was then not
employed and subsequently reappeared on that contrac-
tor's payroll with no new referral. From these, it would
appear (assuming that the steward's reports were fur-
nished for all of the jobs in question and further assum-
ing no other errors affecting the accuracy and complete-
ness of the activity reports) that the individuals involved
were "called back" by their employers. The activity re-
ports, however, similarly reflect that permitmen were
called back. The following are some examples, by no
means all inclusive, of such incidents:3 '
,4ctivity
Report
Page
1975
R. Bauer
R. Keith
P. Kendrick
T. Archer
July 8
Feb. II
Sep. 30
May 20 and Sep. 9
14
40
62
171, 172
29 In such cases, the activity report shows the start of employment but
lists no number from a contractor's sheet
10 For example, the March 18, 1975, referrals of C Tooley, J. Morris-
sey, and T. Maine (1975 activity report, pp 2, 51i and 76, respectively)
appear to be callbacks rather than direct hires, the employees having
worked for those contractors previously The March I1, 1975, referral of
J. Jackson (1975 activity report, p. 615) was to contractor P72, Piazza &
Co. However, he worked for contractor P73, Sal Piazza, commencing on
that date That would appear to he a legitimate referral, perhaps confused
by an error in applying the contractor codes
iVame
1975
L. Haley
T. Hess
T. Kendrick
T. Kendrick
I. Guerrero
Week Ending
Activity
Report
Page
Sep. 23-Oct. 7
July I-Aug. 19
Mar. 18-Apr. 15
Oct. 7-21
May 20, Aug. 5, Sept. 2,
Oct. 14 and Dec. 13
28
155
61
62
552
552
L1 In some of these cases, the individuals, in consecutive weeks of em-
ployment by the same employer, worked on only I or 2 days It would
appear from such a pattern that they had been "laid off' for more than I
day and, arguably, should have returned to the hiring hall
637
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
A¥amer
1976
C. Barnes
S. Shurina
T. Warnock
T. Evans
P. Blyden
1977
R. Duggins
S. Gill
F. Beran
R. Bedford
1978
N. Narine
J. Bautista
K. Linton
W. McGregor
1979
S. Wright
T. Evans
C. Blake
W. Lanham
M. Miller
Week Ending
.Activity
R eport
Page
June 15 22
Feb. 17-June 15
July 20 August 3
Aug. 3-Aug. 24
Aug. 17 Sept. 14
June 14 July 5
Jan. 18-Feb. I
Jan. 25 Feb. 8
Sept. 27-Oct 25
Aug. I Sept. 19
June 27-July 11 and
Aug. 8 22
Apr. 18-May 9
Nov. 21-Dec. 5
Apr. 24 June 5
March 6-13, and 27
Sept. 11-25
Jan. 9 Feb. 23
Oct. 30-Nov. 13
It would appear from the record that the journeymen
benefited more frequently from direct hires and callbacks
than did permitmen. However, because the activity re-
ports draw their information as to specific experience
qualifications from the contractor's requests, which do
not exist in cases of direct hires and callbacks, they do
not reflect which of the direct hire and callback employ-
ment opportunities required specific skills.
J. Analysis and Conclusions
The case which the General Counsel has presented
rests principally on a statistical analysis of 5 years' worth
of computer-produced activity reports to establish dis-
criminatory preference for the Union's members in the
operation of the hiring hall. Examined broadly, compar-
ing only the member referrals against those received by
nonmembers, the statistics would seem to support the
General Counsel's contentions. Clearly, the journeymen-
members of Local 46 received the lion's share of the re-
ferrals. Such a broad examination, however, is mislead-
ing.
In Hazelwood School District v. United States, 433 U.S.
299 (1977), a case involving alleged racial discrimination
in the hiring of teachers, the Supreme Court stated at
308, fn. 13:
When special qualifications are required to fill par-
ticular jobs, comparisons to the general population
(rather than to the smaller group of individuals who
possess the necessary qualifications) may have little
probative value.
Similarly, Administrative Law Judge Welles, in Inter-
national Association of Bridge, Structural and Ornamental
Ironworkers, Local 483, AFL-CIO (Building Contractors
Assocation of New Jersey), 248 NLRB 21, 28 (1980),
stated, "statistics in a vacuum can often mislead." The
General Counsel's comparison of member and non-
member referrals, without regard to the recognized ex-
ceptions to the priority referral system, I find, does in
fact lead to fallacious conclusions and is of no probative
value in determining whether or not the Union operated
its hiring hall in a discriminatory manner. See Interna-
tional Association of Bridge, Structural & Ornamental Iron-
workers, Local 45 (Building Contractors Association of New
Jersey), 235 NLRB 211 (1978). The consent decree, and
the hiring hall rules which it approved, specifically ex-
cluded inside work (lathing) from the referral system.
Additionally, the existence of different skills required for
outside work and the fact that not all who sought out-
side work through the hall possessed those skills were
recognized; the Union was required to participate in
training programs so that those without the requisite spe-
cific skills could acquire them if they so desired and was
permitted to make referrals to outside work according to
the skills requested by the contractors and possessed by
the workmen. One may not conclude from this record
that the Union failed in its obligation to provide training
to the nonmembers. Neither may one conclude that the
Union's agents falsely labeled contractors' requests as re-
quiring more than general experience in order to exclude
permitmen from the referrals.
When the referrals of journeymen to excepted jobs
(and to steward positions, discussed infra) are eliminated
from the General Counsel's equations, the numbers cease
to compel a finding of discrimination. In the years be-
tween 1975 and 1979, from one and one-half to three
times as many journeymen-members were registering at
the hall as permitmen (although they did not register as
often per man). As a group, they received from two to
five times as many referrals to general experience jobs as
the permitmen. A substantial percentage of those appar-
ently general experience referrals were to suburban jobs
(discussed infra) and, considering the errors and omis-
sions prevalent in the activity reports, some of the re-
mainder were quite possibly to specific experience jobs
which had been misidentified. These statistics, alone, will
not support a finding of unlawful discrimination.
Analysis of referrals made from the few priority lists
and sign-in registers which were in evidence, in light of
the recognized exceptions, essentially contradicts the
General Counsel's assertions of discrimination. In most
instances, both were properly followed for all general
experience nonsuburban jobs. The few exceptions to a
strict chronological referral system which appear therein
are as readily explainable by mistakes in the record keep-
ing as by discrimination. Moreover, some of those appar-
ent violations of strict chronological referral adversely
impact upon journeymen as well as upon permitmen.
The General Counsel's several specific examples of al-
leged discrimination which were culled from the volumi-
nous record contain little to substantiate the complaint.
Thus, journeyman Christopher may have been referred
four times during 1975. He was, however, a minority
and, as such, referrals to him could be made out of order
pursuant to the approved hiring hall rules. Moreover,
two of his referrals were to specific experience jobs. The
638
THE METAI.I.IC IATHERS' UNION 01F NEW YORK
jobsites to which the General Counsel points as being
overwhelmingly staffed by journeymen similarly fail to
prove discrimination in the referral process. Most of the
journeymen working on those sites were referred to ex-
cepted positions or were permissibly transferred by their
employers from other jobsites. Others secured their own
employment. There was no evidence that the remainder,
with few exceptions, did not have priority over permit-
men on the sign-in lists. Again, there were not so many
exceptions that, considering the errors in the records and
the impossibility of the Union explaining away one or
two of several thousand referrals years after they were
made, a conclusion of discrimination would be warrant-
ed.
Contributing to the obvious fact that members secured
more referrals than did nonmembers were the suburban
referrals and the referrals to job steward positions. Most
of the former and virtually all of the latter were filled by
journeymen-members of Local 46. The General Counsel
contends that the Union used these excepted categories
to exclude the permitmen from the benefits of the refer-
ral system.
In regard to the suburban referrals, it must be noted
that they, like the New York City referrals, include a
substantial percentage (one-third to one-half of all refer-
rals) which require skills not possessed or claimed by the
permitmen. More significant. however, is the absence of
any evidence in this record that would establish that the
permitmen sought referrals to the suburban jobs. To con-
clude that they did, or that they would have accepted
such work if it had been offered to them, requires not an
inference based on established fact but either conjecture
or reliance on information not properly before the trier
of fact. Accordingly, I am compelled to conclude that
the exclusion of permitmen from most of the suburban
referrals, suspicious as it is, does not support the General
Counsel's allegations of discrimination.
The Supreme Court and the Board have recognized
the "well established tradition that a union is entitled to
have its own members as stewards in order to promote
'the effective functioning of collective bargaining."' Aero-
nautical Industrial District Lodge 727 v. Campbell, 337
U.S. 521 (1949); International Association of Bridge. Struc-
tural & Ornamental Ironworkers, Local 480, AFL-CIO
(Building Contractors Association of New Jersey), 235
NLRB 1511, 1512 (1978). This does not mean, however,
that any designation of a member as steward is free from
inquiry. The key to determining whether the Union has
violated the Act by referring only members as stewards
is whether its actions are arbitrary, invidious, or irrele-
vant to legitimate union interests and thus a mask for dis-
criminatory motivation. Ashley. Hickham-Uhr Co., 210
NLRB 32, 33 (1974).
In this case, the Union was referring workmen to sev-
eral hundred contractors at at least as many jobsites. A
steward was normally appointed on each job which had
more than about three workers. Therefore, one cannot
conclude solely from the fact that the Union was refer-
ring as many as 200 stewards a year from its hall that it
was falsely designating referrals as requiring a steward in
order to circumvent the referral procedures.
Respondent described what it required of its stewards,
essentially a high level of experience and knowledge of
the work, knowledge of the Union's constitution and the
collective-bargaining agreement, and the ability to meet
and deal with people. There was no evidence that these
criteria, which are clearly not arbitrary, invidious, or ir-
relevant in and of themselves, were not applied by the
Union in selecting its stewards. As the permitmen (other
than those who were journeymen from other locals) did
not have the knowledge, skill, and experience in all
phases of the work which the Union sought in its stew*-
ards, I cannot conclude that the refusal to refer any of
them as stewards was discriminatory.
There remains, however, the refusal of the Union to
appoint stewards from among the permitmen who were
journeymen in other locals. These individuals accounted
for about 10 percent of all those seeking referrals in 1975
and 1976, 5 percent in 1977, and about 3 percent in 1978
and 1979. They were between 4 and 25 percent of all the
journeymen who sought referrals in those years. More-
over, they registered more often, in terms of their num-
bers, than did the journeymen members. They received
not a single referral as steward. Yet, at least some of
them had been members of sister locals for as long as 30
years (for example, Frank Giardina) and had been work-
ing out of Local 46 for nearly as many years. I cannot
believe that none of these experienced journeymen met
the Union's criteria for stewards. No explanation, save
discrimination, exists for their total exclusion. According-
ly. I must conclude that by this exclusion, the Union has
discriminated against the journeymen-members of other
locals, in violation of Section 8(b)(1)(A) and (2) of the
Act. Ironworkers Local 480, supra.:32
The General Counsel contends that Respondent has
breached the duty of fair representation it owes to all
who seek employment through the referral system by
failing to enforce the hiring hall rules upon workers who
secure employment without union referral and upon con-
tractors who call back employees or hire them directly.
Assuming, arguendo, the validity of this contention as a
legal theory, the facts developed in this record do not, I
find, support the allegation. Both members and non-
members, including some of the Charging Parties herein,
benefited from direct hires and callbacks. There was no
evidence that employers were encouraged by the Union
to hire members directly or to call them back. The pre-
ponderance of callbacks and direct hires of members
over nonmembers is as rationally explained on the basis
of the members' specific inside and outside work skills
and likelihood that they were better known to the em-
ployers because of their longer service in the industry as
it is by any supposed preference for union members. See
Ironworkers Local 483. supra (under sec. E). Moreover,
the record is too open to the possibility of error, particu-
larly error resulting from missing stewards' reports, to
support the General Counsel's allegations. This is espe-
:2 This issue was not specifically pleaded in the General Counsel's
complaint Hoxwever, the exclusion of permitmen from stewards positions
v as closely related to the pleaded issues and was fully litigated Resolu-
tion of Ihl% irsue is therefore required MSonrtw Feed Store. 112 NLRB
Il36 1955)
639
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cially pertinent to the callback allegations inasmuch as a
missing steward's report would make it appear as if all of
the employees on the jobsite had benefited from call-
backs. Finally, in the absence of some evidence that any
of the hundreds of employers who secured employees
through the Union's hall, other than those who were
members of BCA and The League, were bound to
comply with the hiring hall rules, I cannot conclude that
the Union could have effectively enforced those rules
upon them had it chosen to do so.
In analyzing the record and the General Counsel's
contentions, I have considered the testimony which was
offered to establish the Union's alleged disposition to dis-
criminate. Guerrero's testimony establishes only his own
belief that he was removed from two jobs to make room
for journeymen-members. It does not establish that that
was what actually occurred. Further, his testimony re-
garding employment pursuant to Fightback's efforts is
not corroborated by the activity report. If anything, his
testimony lends credence to Respondent's arguments re-
garding the inaccuracy of these reports and/or to the
conclusion that both journeymen and permitmen secured
employment without a referral being issued or recorded.
Similarly, Cleary's testimony does not establish that
any request for his referral was denied because he was a
permitman. There was no evidence that any such request
was made and, if one had been made, the Union would
have been obligated by the hiring hall rules not to prefer
him on the basis of it.
Certain statements by the business agents do tend to
show some desire on their part to prefer members. Thus,
Lashette's statement to Cleary and O'Connor's statement
to Brown, to the effect that only bookmen were being
referred, would so indicate. However, when considered
in light of the record, it is clear that these statements do
not accurately reflect what the business agents were ac-
tually doing in the hall. McGovern's statement to
Brown, offering him referrals in return for dropping the
unfair labor practice charge and Maloney's statement to
Cambria, when Cambria responded that he was a "union
man," to the effect that Maloney would see what he
could do for Cambria, also provide some evidence of a
willingness to circumvent the referral system when it is
to a union member's advantage. 33 However, these "in-
tention" statements are not, I find, either sufficiently nu-
merous or persuasive, when viewed against 5 years' re-
ferral activity, to overcome either the valid explanations
for the disparity in referrals between members and non-
members or the evidence establishing the unreliability of
the activity reports as proof of discrimination.
aa Maloney's conversation with Cambria might also be understood in
the context of the greater skills possessed by the journeymen I note that
Cambria was referred in 1979 as an inside lather The statement that
Giardina allegedly overheard, regarding an employee claiming to be on
the "preferred list" and being told of the existence of a "special preferred
list," is also ambiguous Moreover, it would appear to be improbable that
Ryan would have said this inasmuch as there was no priority list in use at
that time Similarly, it is difficult to understand Ryan's alleged refusal to
send Giardina to work out of State on the basis eof the Union's earlier
experiences with individuals who had tried to force their way into the
recipient local in order to get a book (i.e, membership) Giardina, in fact,
had been a member of Local 308 for many years
Accordingly, with the exception of the discrimination
against permitmen members of other locals in the referral
of stewards, I shall recommend that the complaint, as
amended, be dismissed.
Tilt RLEME)Y
Having found that Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(b)(1)(A) and (2) of the Act, I shall recommend
that it be ordered to cease and desist therefrom and take
certain affirmative action designed to effectuate the pur-
poses of the Act.
The complaint alleges generally that Respondent dis-
criminated against those applicants for referral who were
not its members. It does not identify the alleged discri-
minatees. The evidence, I have found, establishes that the
Respondent discriminated against journeymen-members
of its sister locals in the referral of workmen to job ste-
ward positions. It is appropriate that the persons so dis-
criminated against be made whole for any loss of earn-
ings they may have suffered by reason of this discrimina-
tory referral practice. Since neither the identity of those
harmed by this discriminatory practice nor the extent of
the discrimination against them in terms of lost earnings
can readily be determined from the records in evidence
in this case, it is appropriate that such determination be
left to the compliance stage of this proceeding. See, for
example, International Brotherhood of Boilermakers, Iron
Shipbuilders, Blacksmiths, Forgers and Helpers, Local 101
(Stearns-Roger Corporation), 206 NLRB 30 (1973). See
also International Association of Bridge, Structural and Or-
namental Iron Workers, Local No. 433 (The Associated
General Contractors of California, Inc.), 228 NLRB 1420
(1977).
Any backpay found to be due pursuant to this Order
shall be computed in accordance with the formula set
forth in F. W. Woolworth Company, 90 NLRB 289 (1950),
and Florida Steel Corporation, 231 NLRB 651 (1977).34
Respondent argues that "just as litigation expenses and
attorney fees may be assessed against a respondent whose
defense is frivolous, so too such fees and expenses should
be assessed against the General Counsel when its actions
are frivolous." Respondent contends that the General
Counsel's delays and his misunderstanding of the applica-
tion of the hiring hall rules establish that this litigation
was frivolous. While I have recommended the dismissal
of substantial portions of the General Counsel's com-
plaint, and found that in fact the General Counsel did
misapprehend various aspects of the hiring hall oper-
ations, I cannot find that its litigation herein was "frivo-
lous." Moreover, there presently35 exists no authority
for such an award against a governmental agency. Ac-
cordingly, I must reject Respondent's request for counsel
fees and cost.
Upon the basis of the above findings of fact and the
entire record in this case, I make the following:
:' See, generally, Isis Plumbing d Hearing Co.. 138 NL RB 716 (1962).
: But see the Equal Access to Justice Act (Public Law, 96 481), Title
2 of the Small Business Expansion Act of 1980. 94 Stat 2321, effective
Octobcr I. 1981
640
THE METALLIC LATHERS' UNION OF NEW YORK
CONCIUSIONS OF LAW
I. By discriminating in the referral of workmen as job
stewards against those applicants for referral who were
journeymen-members of locals of the Wood, Wire and
Metal Lathers' International Union other than Local 46
because they were not members of Respondent Local,
Respondent has caused the employer-members of the
Building Contractors Association, Inc., The Cement
League, and other employers with whom it maintains ex-
clusive referral agreements to discriminate against em-
ployees in violation of Section 8(a)(3) of the Act and has
thereby engaged in unfair labor practices within the
meaning of Section 8(b)(l)(A) and (2) of the Act.
2. Respondent has not violated the Act in any other
manner as alleged in the complaint.
[Recommended Order omitted from publication.]
641
