Iron Workers Local 118 (California Erectors)

National Labor Relations Board - Board Decisions

Dec 11, 1992

309 N.L.R.B. 808 (N.L.R.B. 1992)

808
309 NLRB No. 127
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 It is apparent from fn. 3 of his decision that the judge confused
Muller’s 1989 dismissal by the Employer from a Wells Fargo project
with Muller’s 1991 layoff by another employer from another Wells
Fargo construction project. This inadvertent error does not affect our
analysis. 1 All dates refer to 1991 unless otherwise indicated.
International Association of Bridge, Structural, and
Ornamental Iron Workers, Local 118, AFL–
CIO (California Erectors, Bay Area, Inc.) and
Larry Muller. Case 20–CB–8727
December 11, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On July 29, 1992, Administrative Law Judge Mi-
chael D. Stevenson issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and counsel for the General Counsel filed a limited
cross-exception and an answering brief.
The National Labor Relations board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions,2 and to adopt the recommended Order.
Contrary to the contentions of the Respondent, in
cases such as this one, in which a departure from hir-
ing hall rules affects employment opportunities, it need
not be alleged that the Union was negligent or be
shown that the departure was based on invidious or un-
fair considerations in order to find a violation. Such
departures, absent some justification related to the effi-
cient operation of the hiring hall, are arbitrary actions
and inherently breach the duty of fair representation
owed to all hiring hall users and violate the Act. See
Operating Engineers Local 406 (Ford Construction),
262 NLRB 50, 51 (1982).
Here, the complaint alleges that the Respondent vio-
lated Section 8(b)(1)(A) and (2) by failing and refusing
to refer Charging Party Muller to employment with the
Employer. The General Counsel established a prima
facie case that the Respondent unlawfully departed
from its established hiring hall rules by failing to con-
tact Muller about referral to the Employer’s post office
jobsite. The judge discredited the Respondent’s asser-
tions that Muller was present in the hall and turned
down the referral. Relying on an admission against in-
terest that a mistake had occurred, the judge further
found that the failure to refer Muller was a result of
‘‘mistake and inadvertence’’—a finding which, al-
though supported by the evidence, is not a prerequisite
to finding a violation of the Act. The Respondent’s ar-
ticulated reason for not referring Muller having been
discredited, and negligence being no defense, the fail-
ure to refer him remains unexplained and the General
Counsel’s prima facie case stands unrebutted. There-
fore, we affirm the judge’s finding that the Respondent
violated the Act, as alleged in the complaint.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that Respondent, International Association of
Bridge, Structural, and Ornamental Iron Workers,
Local 118, AFL–CIO, Sacramento, California, its offi-
cers, agents, and representatives, shall take the action
set forth in the Order.
Eugene Tom, Esq., for the General Counsel.
Sandra Rae Benson, Esq., of San Francisco, California, for
the Respondent.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge. This
case was tried before me at Sacramento, California, on
March 4, 1992,1 pursuant to a complaint issued by the Re-
gional Director for the National Labor Relations Board for
Region 20 on August 29, and which is based on a charge
filed by Larry Muller (Muller or Charging Party), on July 15.
The complaint alleges that International Association of
Bridge, Structural, and Ornamental Iron Workers Local 118,
AFL–CIO has engaged in certain violations of Section
8(b)(1)(A) and (2) of the National Labor Relations Act (the
Act).
Issues
Whether Respondent violated the Act by failing and refus-
ing to refer Muller from its hiring hall to employment with
an employer with whom Respondent maintained a collective-
bargaining relationship requiring that Respondent be the sole
and exclusive source of employee referrals.
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and to cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of Gen-
eral Counsel and Respondent.
On the entire record of the case, and from my observation
of the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. THE EMPLOYER’S BUSINESS
Respondent admits that California Erectors, Bay Area, Inc.
(Employer), is a California corporation which operates a con-
809IRON WORKERS LOCAL 118 (CALIFORNIA ERECTORS)
struction business installing structural steel, and has a place
of business located in Benicia, California. Respondent further
admits that during calender year 1990, in the course and con-
duct of its business, Employer purchased and received at its
facilities within the State of California, products, goods, and
materials valued in excess of $50,000 directly from points
outside the State of California. Accordingly, Respondent ad-
mits, and I find that Employer is engaged in commerce and
in a business affecting commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that it is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Facts
1. Statement of the case
On May 21, Respondent’s officials referred two of its
members from its hiring hall to a job beginning the follow-
ing day in West Sacramento where Employer was erecting
a United States post office building. One of the two jobs
went to Jim Nyborg who did not testify in this case. The
other went to Curtis Nickelson, who testified for General
Counsel as a rebuttal witness. Muller admitted in his testi-
mony that he was not a certified welder, a skill required for
Nyborg’s job. However, Muller also contends that he was
fully qualified for Nickelson’s job, called a bolt-up job, and
that he was ahead of Nickelson on the out-of-work list. Gen-
eral Counsel argues that Respondent’s failure to refer Muller
rather than Nickelson constitutes a violation of the Act. To
decide this issue I turn to the record.
2. Respondent’s job referral procedure
Both sides stipulate that Respondent and Employer,
through an employer’s association, are bound to a collective-
bargaining agreement for all time pertinent to this case. In
pertinent part, the collective-bargaining agreement has been
received into evidence. (G.C. Exh. 2.) Section 5 of that
agreement provides as follows:
Employment
C—All other journeymen required by an individual
employer shall be furnished and referred to such indi-
vidual employer through the hiring office of the appro-
priate Local Union.
A second relevant provision provides as follows:
E—The individual employer shall have the right to
reject any applicant referred by the appropriate Local
Union, subject to the provisions of Section 6-E—
‘‘Show Up’’ Expense and Section 9-1—‘‘Show Up’’
Expense.
Respondent’s out-of-work list consists of a board in the
union hiring hall on which a number of white cards are post-
ed. On the cards are the names of those out-of-work mem-
bers who are seeking work. The cards are arranged in an
order signifying to union officials which members have pri-
ority, depending on when their last job ended and when they
signed the Respondent’s out-of-work list.
When a job order is called in to Respondent from a signa-
tory employer, surrounding details are provided such as loca-
tion of job, special skills needed, and perhaps most impor-
tantly, the expected duration of the work. All of this informa-
tion is provided to out-of-work members who are required to
be present in the hall between 8 and 10:30 a.m. when job
orders are called in. Those members interested in the job
order so indicate to Respondent’s officials who then tip all
interested members’ cards until a final determination is made
as to who is entitled to the job.
If a member lives over 35 miles from the hall, his white
card on the out-of-work board is lined with a green border.
These members are not required to be present during the
morning job calls, but may instead stand by at home to await
a telephone call from the union hall, if they qualify by virtue
of their position on the board, to be offered a dispatch to a
job. On Mondays, members are supposed to sign the rollcall
book under penalty of being dropped from the out-of-work
list. Again those members who live over 35 miles away are
exempt from this requirement, but still must call in on Mon-
days to express continued interest in finding work and a cler-
ical will sign the rollcall book for them. Many members liv-
ing over 35 miles from the union hall will voluntarily come
to the union hall on a regular or occasional basis.
One important factor for those high enough on the board
to be eligible for a certain job concerns whether the em-
ployer seeking employees had exercised its rights under the
collective-bargaining agreement, section 5E, recited above. If
a member accepts a dispatch only to be refused employment,
then the member receives show-up-time only and does not
lose his place on the board. However, in some cases, the
member will be put to work by jobsite supervisors, who may
not know that company officials have sent a letter to Re-
spondent giving notice that a particular member is perceived
to be undesirable and will not be accepted if dispatched by
the Union to a job. When this happens, company personnel
officials generally become aware in a day or two that the un-
wanted person has been dispatched to and put to work on a
job. The member is then laid off and must go to the bottom
of the out-of-work board.
3. California Erectors Bay Area, Inc. (Employer)
On November 22, 1989, Employer sent the following letter
to Respondent:
A. R. Mick Mynsted
Local Union 118
2840 El Centro Road
Suite 118
Sacramento, CA 95833
Dear Mr. Mynsted,
To avoid the embarrassment of invoking our right of
rejection under Section 4E and 5E of the Ironworkers
Agreement, we request that Larry Muller, social secu-
rity number 569–90–2781 not be dispatched to any of
our proiects.
810 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Without providing details, McEuen referred to an earlier job in
1987, when Muller’s work performance was also not satisfactory.
3 According to Muller, he was laid off with other ironworkers due
to lack of work. I find McEuen’s version of how Muller happened
to leave the job more credible.
4 Muller admitted that in a prior job with an employer named
Basett at a time he could not recall, Muller had been laid off for
cause after another worker punched him and knocked him down (Tr.
pp. 47–48).
Thank you in advance for your consideration in this
matter.
Sincerely yours,
/s/ Dennis A. McEuen
Vice President
[R. Exh. 1]
The author of the letter, Dennis McEuen, testified for Re-
spondent. According to McEuen, Employer did not consider
Muller to be a satisfactory employee. More specifically,
McEuen described Muller as not qualified to do his job and
combative in nature. On one project, in 1989 Muller quit in
the middle of the job and a replacement had to be found.2
This testimony apparently was a reference to a job performed
by the employer for Wells Fargo. During that job, Muller got
into an argument with an employer foreman named Taylor.
This argument rapidly escalated into a near physical con-
frontation before the two men were separated by others.
After Respondent received Employer’s letter above,
McEuen talked to Respondent’s business manager and wit-
ness at hearing, Mickey Mynsted. The latter explained to
McEuen that notwithstanding the letter, Respondent was re-
quired to refer Muller to the Employer, if he was next up
on the out-of-work board and desired to take the dispatch.
Sometime prior to May, Mynsted told McEuen that he had
discussed the letter recited above with Muller.
McEuen described the request for two employees which
Employer had called into Respondent on May 21 (R. Exh.
2). Although the jobs were expected to last only for about
1-1/2 weeks, the actual time was closer to about 4 weeks.
According to McEuen, if Muller had been dispatched for the
bolt-up job, Employer would have exercised its right under
section 5E of the CBA quoted above and in accord with the
letter (R. Exh. 1) also recited above, paid Muller his show-
up time, and sent him back to the hiring hall.
4. Larry Muller
Testifying as the only witness for General Counsel in his
case-in-chief, Muller testified that he has been a member of
Respondent for about 19 years. He last worked on the Wells
Fargo job in Sacramento, a job which ended on March 23.3
Thereafter, Muller frequently asked Respondent’s officials
what construction jobs were coming up. As soon as the
Wells Fargo job ended, Muller signed the out-of-work list
and ensured that his card was in the appropriate position on
the out-of-work board. In some cases by phone and in other
cases in person, Muller continued to check the progress of
his eligibility to the out-of-work board for desirable long-
term jobs. According to Mynsted, Muller was known in the
hall as someone who ‘‘rides the board.’’ That is, he passed
up shorter jobs for which he was eligible, while awaiting for
longer term jobs to turn up. This practice was not particu-
larly unusual.
On June 27, Muller was in the hall and participated in a
fight with another iron worker named Julian Villa, who did
not testify. Muller was severely injured during the course of
the confrontation and while testifying at the hearing, he was
wearing a neck brace. Besides his physical injuries which
have impaired his ability to work in his trade, Muller has no
memory of the events immediately before or after the fight,
or his hospital stay.4
The referral in issue
Muller testified that consistent with his practice of check-
ing in the hall primarily by telephone, he called the Respond-
ent at 646–6976 on several dates in May including May 20
(Tr. 28, 59). Muller’s home telephone records were intro-
duced to corroborate his testimony (G.C. Exh. 4a–e), but in-
stead the records contradict Muller’s testimony showing no
call to the union office on May 20.
As to the key date of May 21, Muller testified on cross-
examination he was at home with his wife, waiting between
8 and 10:30 a.m. for a telephone call from the Union which
never came. Muller was absolutely positive he was not at the
hall, because he could not afford to drive there (Tr. 53–54).
In fact, according to Muller, the last time he was at the hall
was in April (Tr. p. 55). Respondent impeached Muller by
introducing records to show that Muller was at the hall and
signed the rollcall book on May 6, 16, 20, 28, and several
dates in June (R. Exh. 4).
There were three union officials in and around the hall on
May 21. Mynsted testified that he believed Muller was in the
hall and came up when the bolt-up job was called and
Mynsted said, ‘‘Larry you’ve had a lot of trouble with that
Company,’’ whereupon Muller passed the job (Tr. pp. 89–
90, 92–93, 111). However, Mynsted candidly added he could
not be certain that this exchange occurred on May 21 (Tr.
90, 93, 111).
Respondent’s second official was James Murphy, a busi-
ness representative who also testified as a Respondent wit-
ness. Murphy who has known Muller for 15 years, testified
that on May 21, Mynsted was calling the Employer’s jobs
out and that Murphy was controlling the board. To Murphy’s
recollection, Muller was in the hall and passed on the job
(Tr. 118).
The third Respondent official, Swin Sorenson, another
business representative, did not testify in this matter.
According to Muller, he did not become aware of the
events of May 21 until he went to the hall on June 4 and
signed the rollcall book (Tr. 31). Respondent’s records show
that this testimony was not true and that Muller checked in
by telephone, so that Respondent’s secretary signed his name
in the rollcall book on June 24 (Tr. 144; R. Exh. 4).
In any event, on June 24, or 1 or 2 days later, Muller went
to the Employer’s job where he encountered Nickelson work-
ing on the job. Muller allegedly expressed surprise to see
Nickelson saying that Nickelson had been one or two cards
below Muller on the board. Nickelson then allegedly said
that Muller didn’t get the job because he wasn’t there.
According to Nickelson, he was one of five or six mem-
bers in the hall on May 21. On cross-examination, he can-
didly stated he didn’t know whether Muller was in the hall
on that day or not (Tr. 153). On direct testimony, Nickelson
811IRON WORKERS LOCAL 118 (CALIFORNIA ERECTORS)
allowed that he arrived about 8:30 a.m. and that he didn’t
recall seeing Muller there at any time that morning. When
the job was called, Nickelson went up to the window along
with two other members who were junior to Nickelson on
the board. He did not see Muller go to the window (Tr. 150).
About 2 weeks or so into the job which lasted about 6
weeks, Nickelson met Muller on the job and the latter asked
Nickelson how he happened to get the job. Nickelson replied
that he was dispatched in the normal way. When Muller
added that he was above Nickelson on the board, Nickelson
made no reply, but he is not sure if Muller was above him
or not (Tr. 151–152).
After Muller finished his conversation, he allegedly called
Swin Sorenson to complain that Nickelson had been jumped
on the board ahead of him. Sorenson promised to investigate;
he called Muller back that evening to admit that a mistake
had been made and that Respondent was sorry. The follow-
ing day supposedly was June 27, when Muller went to the
hall to talk to Mynsted about the matter and while there par-
ticipated in the fight.
On July 8 or 9, Muller testified he returned to the hall and
asked Murphy for certain records relating to the May 21 re-
ferral. According to Muller, Murphy refused to provide the
records, but echoed Sorenson’s alleged earlier admission that
a mistake had been made in referring Nickelson ahead of
Muller. At hearing, Murphy denied that a mistake had been
made or that he had made any such statement to Muller.
B. Analysis and Conclusion
1. Credibility resolutions
Although Muller was impeached on several aspects of his
testimony, it is nevertheless possible to ascertain what oc-
curred.
Since Muller signed the rollcall book on May 20, it is rea-
sonable to assume he was not likely to once again travel to
the union hall on Tuesday, May 21. He testified he was at
home awaiting a call which never came and I believe this
aspect of his testimony.
Although Nickelson could not know for certain whether
Muller was at the hall, it was likely that Nickelson would
be aware of any member at the hall higher on the board than
he was, especially since only five or six members were
present to begin with. I find that Muller was higher on the
board than Nickelson and that when the job was called,
Nickelson did not see Muller go up to the window, because
Muller wasn’t here.
Neither Mynsted nor Murphy could make a positive state-
ment that Muller was in the hall on May 21 and passed on
the Employer’s job. Moreover, Respondent failed to call
Sorenson as a witness to rebut Muller’s testimony that
Sorenson told him that a mistake had been made in not call-
ing Muller at home with information on Employer’s job. I
find that Sorenson was an agent of Respondent’s, that his
statement to Muller was an admission against Respondent’s
interest, and that Respondent’s failure to call Sorenson under
the circumstances here present raises an adverse inference
that if he had been called, his testimony would not have been
favorable to Respondent. Teamsters Local 952 (Pepsi Cola),
305 NLRB 265, 274–275 (1991), and cases therein; Rocking-
ham Machine Lunex Co. v. NLRB, 665 F.2d 303, 304–305
(8th Cir. 1981), cert. denied 457 U.S. 1107 (1982).
2. Respondent’s hiring hall, exclusive or not
As noted above, the portion of the collective-bargaining
agreement dealing with Respondent’s referral system is in
evidence (G.C. Exh. 2). From that exhibit, I note that an em-
ployer has the contractual right to bring in a certain number
or percentage of employees onto a job outside Respondent’s
hiring hall. See for example section B-l, page 12 (key em-
ployees or regular employees who have been employed by
an individual employer 50 percent of the working time dur-
ing the prior 12 months). All or most other employees must
be hired through the Union’s hiring hall. This satisfies the
criteria for an exclusive hiring hall. Carpenters Local 608,
279 NLRB 747, 754 (1986), enfd. 811 F.2d 149 (2d Cir.
1987).
In the alternative, I agree with the General Counsel (Br.
p. 3, fn. 4), that the record of this case, without respect to
the contractual language, shows an exclusive hiring hall ar-
rangement by past practice and consistency in hiring those
applicants referred by the Union, except of course for those
members falling within section 5 employment, paragraph E,
pages 15–16 of General Counsel 2 (undesirable employee).
See Plumbers Local Union No. 17 (FSM Mechanical Con-
tractor), 224 NLRB 1262, 1263 (1976).
3. Did Respondent violate the Act under the facts and
circumstances herein present?
Respondent operated its exclusive hiring hall pursuant to
well-established practices and procedures. As the operator of
an exclusive hiring hall, Respondent owes a duty of fair rep-
resentation to applicants using the hall. See Breininger v.
Sheet Metal Workers Local 6, 493 U.S. 67 (1989). As part
of its duty of fair representation, the Respondent has an obli-
gation to operate the exclusive hiring hall in a manner that
is not arbitrary or discriminatory, inasmuch as the Act pro-
hibits a labor organization from adversely affecting the em-
ployment status of someone it represents for discriminatory,
arbitrary, or irrelevant reasons. Miranda Fuel Co., 140
NLRB 181, 184–188 (1962). Put differently, Respondent has
a duty to represent all individuals who seek to utilize the hall
in a fair and impartial manner. That is, Respondent must
conform with and comply lawful contractual standards in ad-
ministering the referral system, and any departure from es-
tablished procedures resulting in a denial of employment
constitutes inherently discriminatory conduct. Iron Workers
Local 601 (Papco, Inc.), 307 NLRB 843, 844 fn. 8 (1992).
In Operating Engineers Local 906 (Ford Construction),
262 NLRB 50, 51 (1982), the Board has also held that:
[A]ny departure from established hiring hall procedures
which result in a denial of employment to an applicant
falls within that class of discrimination which inher-
ently encourages union membership, breaches the duty
of fair representation owed to all hiring hall users, and
violates Section 8(b)(1)(A) and (2), unless the union
demonstrates that its interference with employment was
pursuant to a valid union-security clause or was nec-
essary to the effective performance of its representative
function. [Footnote omitted.]
See also Boilermakers Local 374 v. NLRB, 852 F.2d 1353,
1358 (D.C. Cir. 1988), quoting Teamsters Local 519 (Rust
Engineering), 276 NLRB 898, 908 (1985).
812 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 If on review, it is found that the hiring hall is not exclusive, then
Respondent did not violate Sec. 8(b)(2) by not referring Muller.
Brand Mid-Atlantic, 304 NLRB 853, 854 fn. 7 (1991).
6 If 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
In the instant case, Respondent has not shown that its in-
terference with employment of Muller was pursuant to a
valid union-security clause or was necessary to the effective
performance of its representative function. Rather the evi-
dence shows that Respondent departed from its established
hiring hall procedure by failing to call Muller at home to
offer to him a referral to the Employer’s U.S.P.O. job. Under
these circumstances, I find that General Counsel has estab-
lished a prima facie case that Respondent violated the Act
in the particulars alleged. See Operating Engineers Local
450 (AGC of Houston), 267 NLRB 75 fn. 2 (1983); Iron-
workers Local 505 (Snelson-Anvil), 275 NLRB 1113, 1114
(1985).
There remains now to consider the effect, if any, of the
Employer’s November 22, 1989 letter to Respondent (R.
Exh. 1) quoted above. Certain preliminary observations must
be made. First the Employer’s letter was issued in good faith
in reliance on the labor agreement. See Iron Workers Local
601 (Papco, Inc.), supra at 844 fn. 9. Next, I find no animus
by Respondent against Muller in retaliation for protected ac-
tivities. I also find that in awarding the dispatch to
Nickelson, Respondent’s officials acted through mistake and
inadvertence. However, the Employer’s letter was not a fac-
tor in that mistake. Mynsted testified he told McEuen that
notwithstanding Employer’s letter, Respondent was required
by its hiring hall procedures to refer Muller to any employer
job, for which he qualified, even though Employer would ex-
ercise its right under the contract to refuse to hire Muller.
The Board has held that specific evidence of discrimina-
tory motivation toward an alleged discriminatee is not a per-
quisite for establishing a violation, e.g., where a business
agent uses unfettered or unbridled discretion in departing
from a contract’s provided objective criteria. Iron Workers
Local 601 (Papco, Inc.), supra; NLRB v. IBBW, Local 11,
772 F.2d 571, 575–-576 (9th Cir. 1985).
In summary, Muller was discriminated against in violation
of Section 8(b)(1)(A) and (2) because he lost an opportunity
to be considered for a referral when Mynsted and Murphy
violated established hiring hall procedures.5 Employer’s letter
provides not a defense to the violation, but rather a bar to
any backpay other than $50 show-up pay. See Iron Workers
Local 601 (Papco, Inc.), supra at 843.
CONCLUSIONS OF LAW
1. California Erectors, Bay Area, Inc. is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. International Association of Bridge, Structural, and Or-
namental Iron Workers, Local 118, AFL–CIO is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. By its agent’s failure and refusal to refer Larry Muller
to employment with California Erectors, Bay Area, Inc. on
May 21, Respondent has violated Section 8(b)(1)(A) and (2)
of the Act as alleged in the complaint; and, the Respondent
Union has thereby engaged in unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
REMEDY
Having found that Respondent has violated Section
8(b)(1)(A) and (2) of the Act, I shall recommend that it be
ordered to cease and desist, and to take certain affirmative
action designed to effectuate the policies of the Act. I shall
further recommend that Respondent be ordered to pay Larry
Muller $50 show-up pay, with interest and any other benefits
to which he may have been entitled under the contract,
where the Employer declines to hire the person dispatched,
which loss Muller suffered as a result of the Respondent’s
discriminatory refusal to refer him for employment on May
21. Interest shall be computed in accord with New Horizons
for the Retarded, 283 NLRB 1173 1987); see also Florida
Steel Corp., 231 NLRB 651 (1977), and Isis Plumbing Co.,
138 NLRB 716 (1962).
ORDER
The Respondent, International Association of Bridge,
Structural, and Ornamental Iron Workers, Local 118, AFL–
CIO, Sacramento, California its officers, agents, and rep-
resentatives, shall
1. Cease and desist from
(a) Discriminatorily failing and refusing to refer Larry
Muller to employment with California Erectors, Bay Area,
Inc., or any other employer with whom it has an employment
referral system.
(b) In any like or related manner restraining or coercing
applicants for employment in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Pay Larry Muller $50 showup pay plus interest and
any other applicable benefits in compensation for the dis-
crimination against him, in the manner set forth in the rem-
edy section of this decision.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all records per-
taining to employment through its hiring hall, and all records
relevant and necessary for compliance with this Order.
(c) Post at its business offices, meeting halls, and dispatch
halls in Sacramento, California, copies of the attached notice
marked ‘‘Appendix.’’6 Copies of the notice, on forms pro-
vided by the Regional Director for Region 20, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to members are customarily
posted. Reasonable steps shall be taken by Respondent to en-
sure that the notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
813IRON WORKERS LOCAL 118 (CALIFORNIA ERECTORS)
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discriminatorily fail and refuse to refer
Larry Muller to employment with California Erectors, Bay
Area, Inc., or any other employer with which we have an
employment referral system.
WE WILL NOT in any like or related manner restrain or co-
erce applicants for employment in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL pay Larry Muller $50 showup pay with interest
together with applicable benefits to compensate him for our
unlawful failure to refer him to employment with California
Erectors, Bay Area, Inc. on May 21, 1991, even though Em-
ployer would have lawfully declined to employ Muller.
INTERNATIONAL ASSOCIATION OF BRIDGE,
STRUCTURAL, AND ORNAMENTAL IRON
WORKERS, LOCAL 118, AFL–CIO