Q.V.L. Construction, Inc.

National Labor Relations Board - Board Decisions

Mar 22, 1982

260 N.L.R.B. 1096 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q.V.L. Construction, Inc. and David A. McElhaney
The Wyoming District Council of Carpenters, Local
No. 469 and David A. McElhaney. Cases 27-
CA-6472 and 27-CB-1397
March 22, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On July 11, 1980, Administrative Law Judge
David A. Heilbrun issued the attached Decision in
this proceeding. Thereafter, Respondent Union and
the General Counsel filed exceptions and support-
ing briefs.
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 to the extent consistent herewith.
The relevant credited facts may be briefly stated.
In mid-September 1979,2 Respondent Q.V.L. Con-
struction, Inc. (herein called Q.V.L.), assumed a
carpentry contract on a new kiln under construc-
tion at the Monolith Portland Cement Company
(the Monolith project) in Laramie, Wyoming. In
hiring its carpenters, Q.V.L. used the Union's ex-
clusive hiring hall.' On September 21, Charging
Party David A. McElhaney went to Q.V.L.'s con-
struction trailer at the Monolith project and in-
quired about being hired as a carpenter. Jessie
Lauer, an office employee for Q.V.L., asked McEI-
haney if he had been sent by the Union, as Q.V.L.
was expecting such a referral. When McElhaney
replied in the negative, Lauer informed him that
she had been expecting such a person, and that all
personnel were "coming through the local carpen-
ters union."
Following this conversation, McElhaney re-
turned home and called the Union's Cheyenne
office. He spoke with Madalyn Darlene Brommer,
' The Union has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
All dates are in 1979 unless otherwise indicated.
'Q.V.L. was at all relevant times a signatory to national and local
agreements with the United Brotherhood of Carpenters and Joiners of
America or its area affiliate, and honored the exclusive hiring hall ar-
rangements contained in the contract between the Union and carpentry
contractors. This latter fact was posted at the Q.V.L, worksite at the
Monolith project.
260 NLRB No. 139
Union Business Agent Allen's secretary, and asked
about union membership and employment at the
Monolith project. Brommer explained to McEI-
haney that obtaining union membership required,
among other things, a $200 initiation fee. McEI-
haney then allegedly called the Wyoming Labor
Commission and discovered that union membership
was not a lawful requirement for referral by the
hiring hall. Subsequently, McElhaney again tele-
phoned Brommer, and inquired whether he could
be considered for work at the Monolith site in Lar-
amie on a referral basis without joining the Union.
Brommer replied that only union members were
dispatched to assure "better carpenters." Apparent-
ly, McElhaney never further applied for a job with
Q.V.L. or referral through the Union.
Based on the foregoing, the Administrative Law
Judge concluded that the Union violated Section
8(b)(1)(A) of the Act by telling McElhaney that he
could not be referred for employment because he
was not a union member. We agree.4 We also con-
clude that the Union violated Section 8(b)(2) of the
Act. 5 The above-stated facts establish that the
Union refused to consider McElhaney's request for
referral to work for Q.V.L. at the Monolith project
because McElhaney was not a member of the
Union. Thus, the Union has caused or attempted to
cause Q.V.L. to refuse to hire McElhaney because
of McElhaney's lack of membership in the Union.
Such a union action violates Section 8(b)(2) of the
Act, and we so find.
Although the Administrative Law Judge found
that the Union had violated the Act, he concluded
that Q.V.L. had not. In so doing, he noted that
Q.V.L. did not know that the hiring hall was ad-
ministered unlawfully in this instance and he rea-
soned that Q.V.L.'s conduct in informing McEI-
haney that Q.V.L. was a party to an exclusive
hiring hall arrangement was not sufficient to estab-
lish a violation.
The Board has recently explained employer lia-
bility in exclusive hiring hall cases as follows:
Thus, the Board has consistently held that
when an employer delegates hiring to a union
by utilizing a union referral system to obtain
its employees, it is responsible if the union op-
erates the system in a discriminatory manner.
'The Union argues that Brommer was not an agent, but a "non-
member secretary" whose actions were not binding on the Union. The
Administrative Law Judge found that Brommer was an admitted agent of
the Union and the record supported this admission. We agree, and spe-
cifically note that the Union admitted in its answer to the complaint that
Brommer was an agent of the Union.
' Although the Administrative Law Judge did not discuss this issue, it
was alleged in the complaint and the facts were fully litigated at the hear-
ing.
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Q.V.L. CONSTRUCTION, INC.
This is so even if the employer has no actual
knowledge of the [u]nion's discrimination. 6
The facts of this case bring it squarely within
this rule. Q.V.L. had a contractual arrangement
with the Union by which it delegated to the Union
the right to refer, through an exclusive hiring hall,
employees to work at its Monolith project location.
The Administrative Law Judge found that Q.V.L.
obtained its startup work complement of over a
dozen carpenters through this method. Also Q.V.L.
posted its contractual relationship with the Union
indicating Q.V.L.'s adherence to the referral pro-
cess. And, when McElhaney inquired in person at
the Q.V.L. construction trailer about being hired as
a carpenter, he was informed by an employee of
Q.V.L. that all personnel were "coming through
the local carpenters union." In essence, Q.V.L. told
McElhaney to apply for a job through the referral
system run by the Union, which subsequently dis-
criminated against him because he was not a union
member. Such failure to consider an applicant be-
cause of union affiliation is a violation of the Act,7
and we find that in these circumstances Q.V.L.,
through its contractual arrangement with the
Union, violated Section 8(a)(3) and (1) of the Act,
and is jointly and severally liable with the Union
for the discriminatory operation of the referral
system on September 21.
However, we find that even if Q.V.L. had inves-
tigated the Union's operation of the referral system,
it would not have discovered the discrimination
against McElhaney. In this regard, the Administra-
tive Law Judge found that "in this instance" the
Union, through its agent Brommer, deviated from
its otherwise lawful operation of the hiring hall.
Therefore, we conclude that the Union should be
held primarily, and Q.V.L. secondarily, liable for
any backpay due McElhaney because of the dis-
criminatory operation of the referral hall on Sep-
tember 21, 1979.8
THE REMEDY
Having found that Respondents have engaged in
certain unfair labor practices, we shall order them
to cease and desist therefrom and to take certain af-
firmative action to effectuate the policies of the
Act.
Having found that the Union unlawfully refused
to consider David A. McElhaney for referral to
' Frank Mascali Construction GC.P Co., Frank Mascali Construction
Co., Inc., 251 NLRB 219, 222 (1980), and cases cited therein.
' Apex Ventilating Co., Inc., 186 NLRB 514 (1970); see also General
Cinema Corporation and its wholly owned subsidiary, Gentilly Woods
Cinema. Inc., 214 NLRB 1074 (1974). See generally Shawnee Industries.
Inc.. a subsidiary of Thiokol Chemical Corporation, 140 NLRB 1451 (1963)
Cf. Sachs Electric Company, 248 NLRB 669 (1980)
'Frank Mascali, supra, 251 NLRB at 222
employment with Q.V.L., and caused or attempted
to cause Q.V.L. to refuse to hire McElhaney be-
cause of his lack of union membership, we shall
order that the Union notify McElhaney and
Q.V.L., respectively, in writing, that it has no ob-
jection to the employment of McElhaney by
Q.V.L. to the job he would have been hired absent
its discrimination against him. Q.V.L. shall also be
ordered to offer McElhaney reinstatement to the
job for which he would have been hired absent dis-
crimination. Respondents shall be ordered jointly
and severally, with the Union primarily and Q.V.L.
secondarily liable, to make McElhaney whole for
any loss of earnings resulting from Respondents'
unlawful refusal to consider him for referral and to
hire him.9 The amount of backpay shall be comput-
ed in the manner set forth in F. W. Woolworth
Company, 90 NLRB 289 (1950), with interest there-
on to be computed in the manner prescribed in
Florida Steel Corporation, 231 NLRB 651 (1977).
(See, generally, Isis Plumbing & Heating Co., 138
NLRB 716 (1962).) t °
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that:
A. Respondent The Wyoming District Council
of Carpenters, Local No. 469, Cheyenne, Wyo-
ming, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Informing David A. McElhaney or any other
applicants that they cannot be referred to jobs from
its exclusive hiring hall in the State of Wyoming
because they are not members of the Union.
(b) Failing to consider for referral from its exclu-
sive hiring hall David A. McElhaney or any other
applicants who are not members of the Union.
9 The Union's backpay liability shall terminate 5 days after it notifies
Q V.L and McElhaney that it has no objection to the employment of
McElhaney in the job for which he would have been hired absent the
discrimination against him. and, in the case of Q.V.L., its backpay liabili-
ty shall terminate on the date it offers such employment to McElhaney
For the reasons fully set forth in C B. Display Service, Inc., 260 NLRB
1102 (1982), we cannot agree with our dissenting colleague that the
remedy prescribed in Sheet Metal Workers' Union Local 355. Sheet Metal
Workers' International Association. AFL-CIO (Zinsco Electrical Products).
254 NLRB 773 (1981), is applicable in the circumstances of this case
0' Member Jenkins would compute the interest due on backpay in ac-
cordance with his partial dissent in Olympic Medical Corporation, 250
NLRB 146, 148 (1980).
The Administrative Law Judge noted several factors which he thought
bore on the remedy aspect of this case. Thus, he stated, inter alia, that the
Monolith job was largely staffed when McElhaney tried to register for
referral there, that little hiring took place after the violation committed
by Respondent Union and Respondent Q.V L., and that the Union re-
quired certain tests to be passed pnor to referral. We agree with the Ad-
ministrative Law Judge that these are among the factors which may be
properly left for consideration at the compliance stage of this proceeding
Apex Ventilation, supra.
1097
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Causing or attempting to cause discrimination
against David A. McElhaney or any other appli-
cants by Q.V.L. Construction, Inc., because they
exercise their Section 7 rights.
(d) In any like or related manner restraining or
coercing employees in the exercise of rights guar-
anteed them in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) In conjunction with Q.V.L., with the Union
primarily liable, make whole David A. McElhaney
for any loss of earnings which he may have suf-
fered by reason of the discrimination against him in
the manner set forth in the section of this Decision
and Order entitled "The Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all seniority lists, attendance records, or
records showing starting times, job assignments,
and hours worked, and all other records necessary
for the determination of the amount of backpay
due under the terms of this Order.
(c) Notify David A. McElhaney and Q.V.L., in
writing, that it has no objection to McElhaney's
employment by Q.V.L. on the Monolith project at
Laramie, Wyoming, in the job he would have been
hired absent discrimination against him, and that he
may have full use of the Union's hiring hall facili-
ties without discrimination in connection with re-
ferrals for employment.
(d) Post at its business office in Cheyenne, Wyo-
ming, and any other places where it customarily
posts notices to members, copies of the attached
notice marked "Appendix A."" Copies of the
notice, on forms provided by the Regional Direc-
tor for Region 27, after being duly signed by an au-
thorized representative of Respondent Union, shall
be posted by Respondent Union immediately upon
receipt thereof in the manner provided above. No-
tices are to be posted for 60 consecutive days, in
conspicuous places, including all places where no-
tices to members are customarily posted. Reason-
able steps shall be taken by Respondent Union to
insure that said notices are not altered, defaced, or
covered by any other material.
(e) Forward signed copies of said notice to the
Regional Director for posting by Q.V.L. Construc-
tion, Inc., if willing, at all locations where notices
to employees are customarily posted.
(f) Notify the Regional Director for Region 27,
in writing, within 20 days from the date of this
" In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
Order, what steps have been taken to comply here-
with.
B. Respondent Q.V.L. Construction, Inc., Chey-
enne, Wyoming, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Failing to employ David A. McElhaney or
any other applicants for employment because the
Union has refused to consider for referral from its
exclusive hiring hall such applicants because they
are not members of the Union.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) In conjunction with the Union, with the
Union primarily liable, make whole David A.
McElhaney for any loss of earnings he may have
suffered by reason of the discrimination against
him, in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Offer employment to David A. McElhaney
in the job for which he would have been hired
absent discrimination.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its place of business in Cheyenne,
Wyoming, copies of the attached notice marked
"Appendix B."'2 Copies of said notice, on forms
provided by the Regional Director for Region 27,
after being duly signed by Respondent Q.V.L.'s
representative, shall be posted by Respondent
Q.V.L. immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent Q.V.L.
to insure that said notices are not altered, defaced,
or covered by any other material.
(e) Forward signed copies of said notice to the
Regional Director for posting by The Wyoming
District Council of Carpenters, Local No. 469, it
being willing, at all locations where notices to
members are customarily posted.
(f) Notify the Regional Director for Region 27,
in writing, within 20 days from the date of this
"2 See fn. I 1, supra.
1098
Q.V.L. CONSTRUCTION, INC.
Order, what steps Respondent Q.V.L. has taken to
comply herewith.
MEMBER JENKINS, dissenting in part:
My colleagues find, and I agree, that Respondent
Union should be held primarily liable for backpay
due the Charging Party because of the Union's un-
lawful refusal to refer the Charging Party to work
at Respondent Q.V.L. 13 However, the majority
would relieve the Union of its remedial responsibil-
ities by terminating its backpay liability 5 days after
it notifies Q.V.L. and McElhaney that it has no ob-
jection to McElhaney's employment in the job for
which he would have been hired absent the dis-
crimination against him. I believe such a restriction
is unwarranted.
The Board has recently held that "the proper
and effective realization of the statutory policy . . .
requires that a transgressor should bear the burden
of the consequences stemming from its illegal
acts."'4 It is undisputed that the Union here caused
the discrimination against the Charging Party, and
under the instant facts precluded the employer,
Q.V.L., from itself considering whether to hire
him. Indeed, my colleagues recognize this fact by
holding the Union primarily, and Q.V.L. only sec-
ondarily, liable for the backpay owing McElhaney.
However, the majority undercuts this effective
remedy by allowing the Union an easy escape from
its obligation. Such a result serves no purpose of
law or policy and indeed is inconsistent with the
general remedial scheme of the statute. According-
ly, I dissent and would hold the Union liable to
remedy its illegal actions to the fullest extent possi-
ble. 15
1" I also agree with my colleagues that the Union violated the Act by
telling McElhaney that he would not be referred because he was not a
union member, and that Q.V.L. violated Sec. 8(a)(3) and (1) of the Act
because it acquiesced in the Union's unlawful action.
" Sheet Metal Workers' Union Local 355. Sheet Metal Workers' Interna-
tional Association, AFL-CIO (Zinsco Electrical Products), 254 NLRB 773
(1981).
": But see my partial dissents in the cases cited infra, where the major-
ity found the union and employer jointly and severally liable, without a
primary or secondary designation. In such cases, I would hold the union
secondarily liable even after the appropriate notices that it has no objec-
tion to the hire of the discriminatee. The Harsh Investment Corporation
d/b/a Claremont Resort Hotel and Tennis Club, 260 NLRB 1088 (1982);
and C. . Display Service, Inc., 260 NLRB 1102 (1982)
APPENDIX A
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT inform David A. McElhaney
or any other applicants that they cannot be re-
ferred to jobs from our exclusive hiring hall in
the State of Wyoming because they are not
members of The Wyoming District Council of
Carpenters, Local No. 469.
WE WILL NOT fail to consider for referral
from our hiring hall described above David A.
McElhaney or any other applicants who are
not members of the Union.
WE WILL NOT cause or attempt to cause dis-
crimination against David A. McElhaney or
any other applicants by Q.V.L. Construction,
Inc., because said applicants exercise their Sec-
tion 7 rights.
WE WIItL NOT in any like or related manner
restrain or coerce employees in the exercise of
rights guaranteed them in Section 7 of the
Act.
WE WILL, in conjunction with Q.V.L. Con-
struction, Inc., with ourselves primarily liable,
make whole David A. McElhaney for any loss
of earnings he may have suffered by reason of
our discrimination against him on September
21, 1979, with interest.
WE WILL notify David A. McElhaney and
Q.V.L. Construction, Inc., in writing, that we
have no objection to David A. McElhaney's
employment on the Monolith project in Lara-
mie, Wyoming, and that he may have full use
of the hiring hall facilities without discrimina-
tion in connection with referrals for employ-
ment.
THE WYOMING DISTRICT COUNCIL
OF CARPENTERS, LOCAL No. 469
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail to employ David A.
McElhaney or any other applicants for em-
ployment because The Wyoming District
Council of Carpenters, Local No. 469, has re-
fused to consider for referral from its exclusive
hiring hall such applicants because they are
not members of the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of any rights guaranteed
them by the National Labor Relations Act.
WE Wli. ., in conjunction with the Union,
with the Union primarily liable, make whole
David A. McElhaney for any loss of earnings
he may have suffered because of the discrimi-
1099
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
natory implementation of our arrangement
with the Union, with interest.
WE WILL offer to David A. McElhaney em-
ployment in the job for which he would have
been hired absent discrimination.
Q.V.L. CONSTRUCTION, INC.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge: This
case was heard in Cheyenne, Wyoming, on June 10,
1980, based on an amended complaint alleging that The
Wyoming District Council of Carpenters, Local No. 469,
Respondent, herein called the Union, and Q.V.L. Con-
struction, Inc., Respondent, herein called Q.V.L., violat-
ed the National Labor Relations Act in various regards
to David A. McElhaney and his attempt to secure em-
ployment in the context of an exclusive hiring hall appli-
cable to his trade and the vicinity in which he sought
work.
Upon the entire record, my observation of the wit-
nesses, and consideration of oral argument by counsel for
each Respondent, I make the following:
FINDINGS OF FACT AND RESULTANT CONCLUSIONS
OF LAW
Monolith Portland Cement Company has a new kiln
under construction at Laramie, Wyoming. David McEI-
haney worked on this job for 6 weeks during July and
August 1979 on the payroll of a carpentry contractor
named UMC Construction. McElhaney has approximate-
ly 10 years of diverse carpentry experience. In the past
he held membership in the Brotherhood of Maintenance
Employees Union while doing railroad work, but has
never been a member of any affiliate of the United
Brotherhood of Carpenters and Joiners of America
(UBCJA). He had expected to work the Monolith
project longer, but upon termination was told by an offi-
cial of the nonunion UMC firm that it had been run off
the job for "political reasons."
Q.V.L. came on the job in mid-September with
Arnold Wagner as project manager and hired a comple-
ment of over a dozen carpenters on September 17, aug-
menting this with one person on September 20 and one
more on September 25. Q.V.L. is signatory to all nation-
al and local labor agreements with UBCJA or area affili-
ates, and honors the exclusive hiring hall contained in a
current contract existing between the Union and all car-
pentry contractors who are so bound. The startup work
force of Q.V.L. was obtained in this manner, and it has
at all times maintained a poster plainly setting forth the
contractual provisions whereunder any individual may
register and seek referral during the 48-hour period of
exclusivity as a source of employees. 2
' All dates and named months hereafter are in 1979, unless shown oth-
erwise.
Q.V.L. is a corporation maintaining its principal office and place of
business in Santa Fe Springs, California, and at all material times has been
engaged in building certain concrete structures in Laramie. In the course
On September 21 McElhaney telephoned the Union's
Cheyenne office and spoke with Madalyn Darlene Brom-
mer, secretary to Business Agent Gaylord Allen. Brom-
mer testified that such a call was recorded at 9:50 a.m.
that date, in which McElhaney asked to have member-
ship requirements described for him. She answered by
advising they were 4 years of relevant experience, suc-
cessful completion of a test, and a $200 initiation fee pay-
able in installments. A short time later McElhaney called
again. Brommer testified that he repeated his question
about how to join the Union and mentioned only pass-
ingly that he was interested in work at Laramie.
McElhaney testified that he had gone to the construc-
tion trailer of Q.V.L., and asked a woman office employ-
ee whether he might be hired as a carpenter. According
to McElhaney she inquired whether he was sent by the
Union, adding that Q.V.L. was expecting such a person.
She added that all their personnel were "coming through
the local carpenters union." McElhaney returned home
and from there made the first of two telephone calls to
Brommer. After learning in the first call that membership
in the Union would require a $200 outlay he then tele-
phoned the Wyoming Labor Commissioner's office to
ask whether this was a lawful prerequisite to employ-
ment within the State. The official with whom he spoke
said it was not and that a referral system, neutral as to
membership or nonmembership, was or should be in
effect for the Monolith project. McElhaney testified that
he then telephoned Brommer again, this time asking ex-
pressly whether he could be considered for that job on
the basis of "a referral system without membership." He
recalled her answering in the negative, and saying that
only members of the Union would be dispatched as this
assured "better carpenters."
I am persuaded to credit McElhaney with respect to
crucial aspects of his second telephone call to Brommer.
Respondents' counsel questioned him in depth about de-
tails, motives, and logical alternatives to his contact with
the Union, a process that simply sharpened McElhaney's
impressive demeanor and otherwise clear, orderly expla-
nation of events. Contrary to what was being insinuated,
there was no indication he was possessed of any intent
beyond resuming work on a construction job which he
had originally expected to result in a substantial spell of
employment. As an admitted stranger to the intricacies
and protocol of a major labor organization's hiring hall
operation, he did no more than explore the possibility of
membership in the Union and when this appeared unap-
pealing then fell back to a fundamental request for refer-
ral eligibility. Brommer plainly advised that such an enti-
tlement did not exist, simultaneously creating futility for
McElhaney to press further and negating the elaborate
verbiage by which the contractually exclusive hiring hall
was to operate in nondiscriminatory manner and be so
publicized by the employers to which it pertained. My
and conduct of its business operations it annually purchases and receives
goods and materials valued in excess of S50,000 from sources outside
California On these admitted facts I find that QV.L. is an employer en-
gaged in commerce within the meaning of Sec. 2(6) and (7) of the Act,
and otherwise that the Union is a labor organization within the meaning
of Sec 2(5). The Union's geographical jurisdiction covers several south-
eastern Wyoming counties, including that in which Laramie is situated.
!100
Q.V.L. CONSTRUCTION, INC.
credibility resolution is particularly compelling in view
of Brommer's poor demeanor presentment, and her ad-
mitted past practice of accommodating only union mem-
bers by registration in absentia. I note testimony of Allen
and Assistant Business Representative Bill Bevens that
Brommer has never been known to depart from theoreti-
cal workings of the hiring hall, and can only observe
that for reasons of misguided loyalty or momentary aber-
ration she did so in this instance, While titled as a secre-
tary her actual tasks were fully intertwined with work-
ings of the hiring hall, thus reinforcing her admitted
status as agent of the Union.
In regard to Q.V.L. I hold that a statement of the type
uncontradictedly made to McElhaney by its secretarial
employee, Jessie Lauer, did not entangle this party in the
operative unfair labor practice of constructively refusing
to refer for employment. I see no reason to find a viola-
tion where the agent of Q.V.L. has done nothing more
than inform of its status as party to an exclusive hiring
hall arrangement. This is particularly true where a pre-
sumption of lawfulness applies to the situation, and the
participating employer has no knowledge that the hiring
hall is, or might be, administered otherwise. From this I
conclude that Q.V.L. has committed no violation of law.
On this basis I hold that allegations of the amended
complaint are adequately supported with proof as to the
Union only. Accordingly, I render a conclusion of law
that the Union, by telling McElhaney that he could not
be referred for employment because of his nonmember-
ship, violated Section 8(b)(1)(A) of the Act. 3 The result
however may be somewhat illusory with respect to a
remedy for McElhaney. As to the particular Monolith
job, it was seemingly largely staffed by the time of
McElhaney's thwarted effort at registration. Further
hiring of carpenters at the site would be a chief indicator
of McElhaney's measure of damages; however, nothing
is known of that from this record except that 15 regis-
trants stood ahead of him as of September 21 and only I
person was hired on September 25. The violation that
touched McElhaney was not limited to work opportuni-
ties in the city where he resided; however, it is equally
true that he had no interest in employment elsewhere. A
feature of the hiring hall setup was presumably unbiased
oral testing by the Union, and employers were under no
compunction to hire particular individuals so referred.
These are among the several variables to be assessed
during any compliance undertaking.
[Recommended Order omitted from publication.]
' See Bakery Salesmen's Local Union 227. affiliated with the Internation-
al Brotherhood of Teamstern. Chauffeurs. Warehousemen and Helpers of
America (American Bakeries (Langendorf Division)), 236 NLRB 656 (1978).
1101