Iron Workers Local 46

National Labor Relations Board - Board Decisions

Mar 22, 1996

320 N.L.R.B. 982 (N.L.R.B. 1996)

982
320 NLRB No. 100
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent contends that portions of Fred James’ testimony
about his conversation with Johnny Rodriguez are hearsay and
should not have been admitted. The judge relied on this testimony
to find that Business Agent Ledwith has deviated from the hiring
hall rules. We note that the Respondent did not specifically object,
on hearsay grounds, to this testimony at the hearing. Thus, the Re-
spondent’s hearsay claim is waived. NLRB v. Cal-Maine Farms, 998
F.2d 1336, 1343 (5th Cir. 1993). Further, even if the claim were not
waived, we have long held that hearsay evidence is admissible if
probative and corroborated. Dauman Pallet, 314 NLRB 185, 186
(1994), and cases cited there. Here that test is met. James’ testimony
that he verified what Rodriguez said by checking the hiring hall list
was uncontradicted and corroborates the hearsay testimony.
2 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 (1951). We have carefully examined the record and find
no basis for reversing the findings.
1 Respondent counsel argues in his brief that the General Coun-
sel’s proffer of evidence seeking to show a failure by the Respond-
ent to follow its rules regarding referral, thereby seeking to undercut
one of Respondent’s defenses to the complaint, that James was not
entitled to referral because it would have violated the hiring hall
rules, raised new matter and was outside the scope of the allegations
of the complaint. To the contrary, the General Counsel’s offer of
evidence was in the nature of rebuttal and was therefore a proper
and relevant response to Respondent’s defense and did not raise a
new issue in the proceeding. My rulings, denying Respondent’s mo-
tion made at trial to strike this evidence is reaffirmed as is my ruling
permitting the development of this rebuttal evidence during the pres-
entation of the General Counsel’s case-in-chief in the interest of ex-
pediting the hearing and avoiding the unnecessary recall of wit-
nesses.
Local 46, Metallic Lathers Union and Reinforcing
Iron Workers of New York and Vicinity of the
International Association of Structural and Or-
namental Iron Workers and Fred James. Case
2–CB–15169
March 22, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On September 25, 1995, Administrative Law Judge
Robert T. Snyder issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed 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,1 findings,2 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Local 46, Metallic Lathers
Union and Reinforcing Iron Workers of New York and
Vicinity of the International Association of Structural
and Ornamental Iron Workers, New York, New York,
its officers, agents, and representatives, shall take the
action set forth in the Order.
Kevin M. Smith, Esq., for the General Counsel.
Richard H. Markowitz, Esq. (Markowitz & Richman, Esqs.),
for the Respondent.
DECISION
STATEMENT OF THE CASE
ROBERT T. SNYDER, Administrative Law Judge. This case
was tried before me on May 3, 1995, in New York, New
York. The complaint alleges that Local 46, Metallic Lathers
Union and Reinforcing Iron Workers of New York and Vi-
cinity of the International Association of Structural and Or-
namental Iron Workers (Respondent, the Union, or Local 46)
in its operation of an exclusive referral agreement with a
multiemployer league failed and refused to refer Fred James
(the Charging Party) to an employer-member of the league
because James filed an unfair labor practice charge with the
National Labor Relations Board (the Board), and for reasons
other than the failure to tender dues and initiation fees uni-
formly required for membership in Respondent, in violation
of Section 8(b)(1)(A) and (2) of the Act. Respondent filed
a timely answer denying commission of the violations al-
leged.
The parties were provided full opportunity to participate,
to introduce relevant evidence,1 to examine and cross-exam-
ine witnesses, to argue orally, and to file briefs. Posttrial
briefs have been filed by counsel for the General Counsel
and Respondent and they have been carefully considered. On
the entire record in the case, including my observation of the
witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
At all material times, the Cement League (the League) has
been an organization composed of various employers en-
gaged in the erection of concrete and cement structures, one
purpose of which is to represent its employer-members in ne-
gotiating and administering collective-bargaining agreements
with various labor organizations, including Respondent. An-
nually, employer-members of the League in the course and
conduct of their business operations, collectively purchase
and receive, at facilities and construction sites located in
New York State, goods and materials valued in excess of
$50,000 directly from points located outside the State of
New York. By virtue of the foregoing, and as admitted by
Respondent, I find that some employer-members of the
League have been employers engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. Re-
spondent admits, and I find, that Local 46 is a labor organi-
zation within the meaning of Section 2(5) of the Act.
983IRON WORKERS LOCAL 46
2 Described improperly as ‘‘the above-referenced letter,’’ but
which is also heavily marked with Xs on the line above as ‘‘CER-
TIFIED CHARGE.’’
II. ALLEGED UNFAIR LABOR PRACTICES
A. Respondent’s Exclusive Referral Agreement and the
Rules Governing Its Operation
Local 46 is a party to a collective-bargaining agreement
with the Cement League running from July 1, 1993, to June
30, 1996. In addition to an exclusive recognition clause and
an 8(f) 7-day union-security provision contained in article II,
the agreement also contains, inter alia, an article VIII enti-
tled, ‘‘Manning of Jobs,’’ including, inter alia, a
subparagragh (5) providing that ‘‘the Hiring Hall shall be the
exclusive source of workmen and no hiring shall be done at
the jobsite,’’ and a subparagraph (1) providing that ‘‘The
Union shall establish and maintain an open employment list
for the employment of competent workmen in accordance
with the Rules and Procedures for Operations of Hiring Hall
dated August 17, 1991 and presently in effect and all refer-
rals shall be made pursuant to said Rules and Procedures.’’
Those rules and procedures were confirmed by U.S. District
Court Judge Marvin Frankel in a memorandum order dated
July 16, 1971, and made effective August 17, 1971, in a pro-
ceeding brought by the United States of America against
Local 46 and the Joint Apprenticeship Committee of the Em-
ploying Metallic Furring and Lathing Association of New
York, in the U.S. District Court for the Southern District of
New York, in 68 Civ. 2116, in which proceeding Judge
Frankel had issued an opinion on May 12, 1971, finding
merit to claims of racial discrimination in hiring referrals
made by the Union and in the administration of the appren-
ticeship training committee. The rules, with minor modifica-
tion, had been proposed by a court appointed administrator,
George Moskowitz. For purposes of this decision, reference
to various sections of these rules bearing on the merits of the
allegations made in the instant complaint shall be made here-
inafter when appropriate. Suffice it to say now that the rules,
overseen by the administrator, appear to provide an objective
and neutral set of rules and guidelines governing the referral
of out of work lathers and ironworkers to contracting em-
ployers from the Union’s hiring hall, while at the same time
providing preferences for employment of nonwhite workmen
when requested by those employers.
B. The Evidence Relating to the Union’s Alleged
Failure and Refusal to Refer Fred James to Northberry
Corp. on or about May 9, 1994
Fred James testified that he was a member of the Union
for 25 years and that his dues were currently paid up. He is
familiar with the Union’s hiring hall, having shaped it on a
regular basis.
Over the years James had registered complaints regarding
the operations of the hiring hall. In 1974 he filed an internal
union complaint with its executive board. Robert Ledwith,
since 1981, an elected business agent, responsible, inter alia,
for referring lathers and ironworkers from the Union’s hiring
hall to jobs in Manhattan, was a member of the Union’s ex-
ecutive board at the time of James’ internal complaint. In
1990 James filed an unfair labor practice charge with the
Board over operations of the Union’s hiring hall. James is
also 1 of approximately 30 minority members, of a total mi-
nority membership of 300 in Local 46 who are plaintiffs in
a Federal lawsuit filed against the Union charging discrimi-
nation in job referrals, which the suit has been pending at
all material times. On April 25, 1994, James filed the initial
unfair labor practice charge against Local 46, in this proceed-
ing, alleging that since about mid-November 1993, the Union
has racially discriminated against him by failing to refer him
to jobs, in violation of Section 8(b)(1)(A) and (2) of the Act.
The charge listed the union representative to contact as Rob-
ert Ledwith, business agent. The charge was mailed to Local
46, Lathers Union on May 1, 1994. In an unskillfully worded
affidavit of service, a Board employee swore that on May 1,
1994, she served the charge2 by forwarding it by postpaid
mail on the addressee above, together with a transmittal let-
ter. The addressee above is listed as:
Local 46, Lathers Union
Attn: Robert Ledwith, Bus. Agent
1322 Third Avenue
New York, N.Y. 10021
A certified receipt stapled to the charge shows delivery of
the charge was made on May 4. It is signed by a P. DeFeo,
later identified as one of the Local 46 secretaries who work
for Business Manager Fred LeMoine.
On Wednesday, May 4, James shaped the Union’s hiring
hall. He signed the register. He also spoke to Ledwith. The
two were alone. He asked Ledwith for work because he had
been out of work for so long. Ledwith told him that the
Northberry job was about to start and when that gets started
he would send James on that job. He said that job was going
to start sometime next week and it was at 61st and 11th Ave-
nue. James continued to shape the hall on May 5 and 6. On
Monday, May 9, James shaped the hall and signed the reg-
ister. While waiting in the hall, James learned that three men
had been sent out early that morning by Ledwith to the
Northberry job. When the men signed the workslip he asked
them where they were going and one of them confirmed the
Northberry job as their referral. On learning this, James ap-
proached Ledwith and reminded him of his promise to send
James to the Northberry job. Ledwith replied he was going
to send James out on the job until he got the letter from the
Labor Board. James asked, ‘‘Does that mean that I’m not
going out to work now because you got the letter from the
Labor Board?’’ In an angry and sarcastic tone of voice,
Ledwith replied, ‘‘Oh, I’m going to send you out all right.’’
Then Ledwith went back into his office and closed the door.
Before he did so, James told Ledwith he had filed a charge
because he wanted to get Ledwith’s attention because he’d
been out of work for a long time. And that was the only way
he could get his attention.
During his cross-examination, James agreed that the writ-
ten hiring hall rules provide that the Union’s business agents
must send men to a job in the order in which they appear
on the priority list. James also agreed that in order to be eli-
gible for referral the individual applicant must be present in
the hiring hall when his name is called. James denied that
in questioning Ledwith on May 9, it was his intention that
the business agent skip over names on the priority list to
send him out to work. He wasn’t thinking about the list, but
only about a job and Ledwith’s promise. He took Bobby
984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Ledwith by his word and his promise. At the time, on May
9, James was not aware of where he stood on the priority
list but he knew he was on it.
In James’ pretrial affidavit he had stated that Ledwith told
him in their May 9 conversation that he had received the
Labor Board charge on Friday, May 6. At the trial James at
first denied that Ledwith told him when he got the charge,
but after being refreshed about his prior statement agreed that
he had given that date to the Board agent taking his state-
ment.
James also acknowledged that after May 9, he continued
to register at the hall and was sent out to a number of jobs
of short duration, none for a period longer than 1 week. Fur-
thermore, in January 1995, Ledwith sent him to a job, and
also lent him money so he could go home, change his
clothes, and take a cab to the job on time. On this occasion,
James had appeared in the union hall after the job had been
called, his name had been called, and he wasn’t present.
When James appeared he didn’t have his tools, was not
dressed for work, and told Ledwith he didn’t have cabfare
to ride home. Ledwith gave him $20, told him to take a cab
home, have it wait, change his clothes, get his tools, and take
the cab to the jobsite in Manhattan. James did not recall
Ledwith saying he would call the job and tell them he was
unavoidably delayed. James continued on that job at least to
the date of his testimony on May 3, 1995.
James learned from an employee that the Northberry job
ran from May 9, 1994, until November of that year.
Another General Counsel witness, Zaid Abdullah, testified
that he had been a member of Local 46 for approximately
25 years. When out of work he shaped the hiring hall on a
regular basis. Abdullah recalled a conversation he had with
Ledwith in mid-May 1994. It took place in front of a hotel
at 43d Street and Eighth Avenue in Manhattan where the
Union was picketing a nonunion contractor. At this moment
the two were alone. They were talking about the running of
the hiring hall. Abdullah was explaining that minorities felt
that they were not being treated fairly on jobs referred out
of the hall. During this discussion, Ledwith mentioned that
Fred James had him at the National Labor Relations Board
and how can he give him a job.
Early in his cross-examination Abdullah expressed criti-
cism of the expenditure of trust fund moneys for trips taken
by union delegates. When pressed he noted that based on the
last Local 46 membership meeting, a lot of members beside
himself felt the same way.
Abdullah had testified on direct examination that Ledwith
had at one time referred to himself as a friend. Now
Abdullah noted that although Ledwith referred to them as
friends, he wasn’t treated as a friend because his, Ledwith’s,
friends, were working constantly. Although presently em-
ployed for about a week, he had last worked 2 days in Janu-
ary and 2 days in April 1995. Abdullah readily acknowl-
edged that better than 25 miniority union members believe
themselves to have been discriminated against on referrals.
But Abdullah denied ever telling Ledwith in front of another
business agent that he was going to shove his foot up his
‘‘ass,’’ explaining that it made no sense to say this to some-
one like Ledwith who believed he treated Abdullah and other
miniority members fairly.
Robert Ledwith testified for the Union. He was a business
agent since June 1991, having been elected six straight times
to that position. Among other duties he handles complaints,
job referrals, jurisdictional disputes, and nonunion problems.
On May 4, 1994, he had a conversation with James in the
vestibule between the main room at the union hall and the
office. James asked him to go to the Northberry job at 61st
Street and West End Avenue. Ledwith replied that if he was
on the priority list and the job called in for men and his
name was read out, he’d be more than happy to send him
to the job.
On May 9, 1994, Ledwith received a request from
Northberry for three workers and sent out individuals who
held the positions of 1, 2, and 9 on the priority list for that
day. The work was just starting for construction of a high
rise building at 61st Street and West End Avenue and
Northberry was the ironwork contractor. The three men sent
to the jobsite were Daryl Moore, George Caban, and Dennis
Campbell. Each was a member of a minority. Moore was
ninth on the priority list. Strangely, he had not signed the
sign-in sheet for that day, yet Ledwith called his name along
with those of the two others. The three were the first workers
who wanted to go to the job. Yet Ledwith failed to positively
testify that priority list members numbered 3 through 8 were
called and whether each rejected a potentially long-term job
referral offer. He told the three the job was just starting,
‘‘you know, I can give you a job, but you’ve got to keep
it.’’
Although the original priority list for the week of May 9,
1994, would normally contain the notations opposite the list-
ed workers names of those who were ‘‘sent’’ or were absent,
represented by an ‘‘A,’’ on the particular day of that work-
week, Ledwith was obliged to report that the original two-
page list was lost with the comment ‘‘[T]hings disappear in
that place, believe it or not.’’ (Tr. 115.) The duplicate copy
Ledwith produced and the one he read from in the morning
did show a correction in a worker’s priority, raising his pri-
ority from 14 to 15 days after the worker, Devon Goode,
brought the error to the attention of the secretaries who pre-
pare the weekly lists.
On the same day, the foreman of another contractor, Pin-
nacle Concrete, had requested two workers by name, James
Hatcher and Howard Golding, and consequently they were
referred out to that job. On May 9, James’ name was more
than 50th on the priority list.
At around 9 a.m. James approached Ledwith in the vesti-
bule between the hall and the agents’ office. James said he
wanted to be sent to 61st Street and West End Avenue.
Ledwith repeated again, ‘‘that you have to sign and get on
the priority list and when they need men, I will call the list.
If your name comes up, I will send you.’’ James said, ‘‘No,
I want to go to the job.’’ Ledwith told him the industry
doesn’t work that way. There must first be a request for men
and then the priority list is followed. He could not just magi-
cally wave a wand and put people to work arbitrarily. As
Ledwith described it, he again reviewed the hiring hall pro-
cedures for James and how they worked. Ledwith denied
telling James he wasn’t going to get the job because he got
a letter from the Labor Board. Ledwith also denied getting
a letter and charge from the Labor Board. Until Respondent
counsel showed him the charge in the period leading up to
the instant trial, Ledwith had not seen it nor was he aware
that James had filed it. Charges alleging or referring to racial
discrimination are handled by the Union’s business
985IRON WORKERS LOCAL 46
manager/financial secretary. Ledwith also denied that James
made any reference to filing the unfair labor practice charge
in order to get his attention during their interchange on May
9. Ledwith did acknowledge that James said he had been out
of work a long time.
As for the conversation to which Abdullah testified,
Ledwith recalled having a private conversation with him at
the Times Square Hotel picket line which could have taken
place near the end of May. The picketing by union members
took place every Friday and was an occasion for Ledwith to
hear members’ complaints and comments and receive reports
from members. The Friday in question could have been May
20 or 27. The conversation was away from the group and up
against the building. They talked at length about the state of
trade unions, their role in helping solve problems in Amer-
ican society, and Ledwith’s admiration of certain things in
the African-American culture. They exchanged views about
where the country could go and the Union can go for its bet-
terment. Ledwith denied any recollection to his knowledge of
Fred James’ name being mentioned. Ledwith denied telling
Abdullah, ‘‘How can I give James a job, he’s at the National
Labor Relations Board.’’ Indeed, on May 23, 1995, Ledwith
sent James to work on a job for Pinnacle Concrete at 92d
Street and York Avenue in Manhattan, a job which lasted 2
days for him. Ledwith also testified that 4 or 5 months ago,
in the inner union agents’ office. Abdullah told him he’s
going to shove his work boot up Ledwith’s ‘‘ass.’’ Ledwith
told Abdullah please leave the office, and he did so. The
context in which this alleged threat was made was not ex-
plained.
Ledwith described the incident when he provided James
with pocket money and held a job for him in January 1995
in the following terms. At that time period he had spoken
with James about his employment possibilities, reminding
him he had to come in every day and sign and be ready to
go to work. James’ name was on the priority list at the time.
Ledwith mentioned that 165th Street was going to call for
men. On a Wednesday or Thursday the call came from the
contractor at the 165th Street jobsite. Ledwith reached
James’ name but he wasn’t in the hall. He came in 10 or
15 minutes later, not prepared to go to work, dressed in
street clothes, and with no tools. Ledwith made a quick deci-
sion, told James he would loan him $20 to get a cab, go
home, keep the meter running, change and get his stuff, and
get over to the job. Meanwhile he would call the job and tell
them James was delayed. These events then followed. As
noted earlier, James continued on that job for at least 4
months.
During his cross-examination, Ledwith acknowledged talk-
ing on occasion to the business manager’s secretary, Pat
DeFeo, who signed the receipt for certified mail delivery of
the original unfair labor practice charge on May 4, 1994.
Furthermore, Ledwith also speaks frequently with the Busi-
ness Manager Freddie LeMoine. Yet, according to Ledwith
it was the Union’s practice not to make him aware of a
charge that named him on its face as the union representative
to contact. When pressed further about his lack of knowledge
of this pending charge until February 1995, Ledwith replied:
‘‘Yeah, no, I’ll tell you what, Yes, that’s my answer, yes.’’
(Tr. 168.) When asked further whether the union office
didn’t ask him about the charge, and the identity and motives
of the individual charging party and the circumstances which
led to its filing, Ledwith, rather than answering directly, now
referred to serious jurisdictional disputes with other unions
and pressures with other unfair labor practices and picket
lines which were his main concerns. Then Ledwith followed
his avoidance of a direct response with the explanation that
‘‘[We] had a court appointed administrator who handled all
that stuff, I never got involved in this kind of a thing. The
court-appointed administrator, Moskowitz, handled this stuff
with the attorney.’’ (Tr. 169.) Both Respondent counsel and
Ledwith immediately agreed that the administrator was not a
party to this proceeding. Furthermore, he had resigned in Oc-
tober 1993, well before the events alleged in the charge, has
not since been replaced, and passed away some 6 months be-
fore the instant hearing.
Terrence Moore, a union business agent since November
7, 1993, also testified for the Union. He was present and
heard Zaid Abdullah tell Ledwith about 6 or 8 months ago
that he was going to take his foot and stick it up Bobby’s
‘‘ass.’’ They were in the Union’s office. Abdullah, Ledwith,
and the Business Manager LeMoine had gone into
LeMoine’s office and this was said as Abdullah was leaving
and stopped just outside the door to the office the business
agents shared.
Fred James retook the witness stand in rebuttal testimony
following Ledwith’s denial of his version of their May 4 and
9 conversations. James testified that when he spoke to
Ledwith on May 9, Ledwith was holding the letter from the
Labor Board in his hand. He knew what it was because he
could see the return address and the little certified sticker on
the envelope which was also on the envelope enclosing the
letter he had received from the Labor Board following his
filing of the April 25 charge. On cross-examination, James
acknowledged that his pretrial affidavit does not refer to
Ledwith holding the letter from the Labor Board when they
talked on May 9 although he believed he mentioned this fact
to the Board agent taking his statement. Nonetheless, James
insisted he saw Ledwith holding the letter and made ref-
erence to it when telling him he would have given him a job
until he received ‘‘this’’ letter from the Labor Board. James
also mistakenly believed he had earlier testified about
Ledwith holding the letter.
C. The Rules and Practices Governing Operation of the
Union’s Hiring Hall
Aside from Ledwith’s denials of any particular promise to
refer him, knowledge of James’ charge or denying him a par-
ticular referral because he had filed a charge, the Union re-
lies on the hiring hall rules and procedures as providing a
full defense to the allegations in this case. Those rules pro-
vide, in pertinent and relevant part, as follows:
II. REGISTER FOR REFERRALS
The Union shall maintain a daily register based on
existing forms installed by Administrator. All workmen,
regardless of place of residence, who seek referral to
employment in New York City must personally appear
at the Union Hiring Hall and register no later than 8:30
A.M. on the ‘‘Hiring-Hall sheet.’’. . .
III. REQUESTS BY EMPLOYEES FOR REFERRAL
986 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A. Requests for referral of workmen shall be re-
corded on existing forms installed by the Administrator
for that purpose. The Union business agents or other
union personnel charged with responsibility for record-
ing employer requests for referral shall cause the fol-
lowing information to be obtained and recorded on a
numbered ‘‘Contractor’s Sheet,’’ using the contractor’s
sheet bearing the lowest unassigned work number.
1. Date and time of receipt of request, using time
and date clock installed by Administrator.
2. Date workmen are required to start on the job.
3. Contractor’s name, location of job site, number of
men.
4. Type of men, and number of men in each cat-
egory, nature of specific outside work experience where
any specific experience is requested.
5. Expected duration of job.
B. The Union may not grant an employer’s request
for referral of a specific individual, other than a fore-
man or deputy foreman. Nothing contained herein shall
limit the Union’s obligation to grant employer’s re-
quests, pursuant to requirements of Federal, State and
Local law, that non-white workmen be referred.
IV. REFERRALS TO EMPLOYMENT
A. The objective of these rules and procedures is to
ensure that all eligible workmen, regardless of race or
union membership, share equally in the available em-
ployment, and all referrals shall be made consistent
with this objective.
B. The business agents shall be responsible for the
referral of workmen from the Hiring Hall sheet. In car-
rying out their duties, the business agents shall:
1. Offer jobs in the order in which requests for
workmen are received.
2. Announce to all registrants present at the Hiring
Hall each available job, state its location, expected du-
ration if known, type of work and the number of men
in each category, and the nature of specific outside
work experience required where such specific experi-
ence is requested.
3. For jobs in New York City, business agents shall
make referrals in the following manner from those who
are present in the Hiring Hall and who have signed the
Hiring-Hall sheet:
(a) Workmen who are on the priority list as provided
in Paragraph IV. C and who have noted such priority
on the daily Hiring Hall sign-in sheet as required by
Paragraph IV, C (5) shall be first offered job referrals.
Failure to accept referral shall deprive the workman of
any further priority that day.
(b) Workmen on the priority list in any one week
who refuse work referrals on 2 or more days in any one
week shall be deemed to have waived their rights to
any priority for the following week.
(c) The business agent shall record, on the daily Hir-
ing Hall sheet, in the ‘‘Remarks’’ column, any refusal
to accept referral on a priority basis, noting also the
‘‘Work Number’’ for which the job was refused.
C. Priorities for Job Referral
1. The Union and its business agents shall be re-
quired to maintain a cumulative list for the previous
two weeks of all workmen who registered at the Hiring
Hall in accordance with Rule II (Register for Referrals)
of these Rules and Procedures, recording the dates on
which each workman did not obtain employment.
2. Workmen whose names appear on such list more
than five times in said two (2) week period shall be en-
titled to priority for referral. The priority sequence shall
be established by the number of days when the work-
man was not referred for employment, except as quali-
fied by Rule IV, B (3).
3. If more than one (1) workman is entitled to the
same priority, the workman who registers earlier on that
day of referral shall be entitled to the first referral.
4. The Union shall post the priority list in a public
place in the Hiring Hall. Any workman who challenges
of the priority list as prepared by the Union may notify
the Administrator forthwith.
5. Workmen who are entitled to a priority as set
forth on the priority list, shall be responsible for record-
ing such ‘‘priority entitlement’’ on the daily Hiring
Hall ‘‘sign-in’’ sheet.
. . . .
VIII. THE ADMINISTRATOR
The Administrator shall be responsible for making a
computer study of the Union’s records on a periodic
basis and reporting all violations of these rules and pro-
cedures uncovered by the study to the Union and the
Government.
Based upon his analysis of the data produced by the
computer study, and any other information he receives,
the Administrator, after consultation with the Union and
the Government, has the power to amend, modify, re-
vise or change these rules and procedures, or any of the
forms referred to herein. The Administrator shall com-
municate any such amendment, modification, revision
or change to any such amendment, modification, revi-
sion or change to the Union and the Government in
writing, and either the Union or the Government may
apply to the Court within fifteen days of the receipt
thereof and seek a determination as to the validity of
the Administrator’s action.
IX. PUBLICATION OF RULES AND PROCEDURES
A copy of these rules and procedures shall be mailed
to every person who is registered at the Union Hiring
Hall and, at all times, at least one copy shall be kept
in a public place at the Hiring Hall and shall be open
to inspection on working days between 7:00 A.M. and
4:00 P.M.
Dated: August 17, 1971
As noted earlier, James’ place on the priority list on May
9 left him well below the position of three registrants who
were offered and accepted referral to the Northberry job on
that date. The Union refers to the events of May 9 and the
operation of the Union’s referral rules on that occasion as ne-
gating any claim James may assert to union liability for fail-
ing to refer him, even if a promise to do so had been made.
And, further, the Union claims the operation of the rules and
Ledwith’s obligation to comply with them show that Ledwith
could not have made the promise James asserts because the
987IRON WORKERS LOCAL 46
union rules Ledwith administers would not have permitted
him to fulfill the promise in any event.
Ledwith testified that he was obliged, at the risk of con-
tempt, to administer the rules fairly and in accordance with
their adoption in an order of the Federal district court and
as administered and revised by George Moskowitz over the
years. Ledwith described the exceptions to the rule requiring
referrals to be made in the order in which the names of men
who have registered on a particular day appear on the prior-
ity list. The person seeking referral must be present in the
hiring hall when his name is called. (See rule IV,B,3 provid-
ing priority only to those workmen who are both present in
the hall and have signed the sheet.) If the job calls for cer-
tain specified skills only the men who have those skills will
be eligible for referral to a particular job. (See rule IV,B,2
which refers to specific outside work experience where such
experience is requested.) Where a contractor requests a
nonwhite workman, those registrants who are nonwhite go to
the top of the priority list if they also meet the other condi-
tions enumerated. (See rule III,B referring to the Union’s ob-
ligation to grant employer’s requests pursuant to require-
ments of Federal, state, and local laws, to refer nonwhite
workmen.) Although Ledwith testified that it was his practice
to refer nonwhite workmen requested by name, whether or
not their names appeared on the priority list, the wording of
the rule does not necessarily support Ledwith’s interpretation.
Thus, the language (‘‘Nothing contained herein shall limit
the Union’s obligation to grant employer’s requests . . . that
non-white workmen be referred’’) does not provide a con-
vincing affirmation of Ledwith’s practice. If the rules had in-
tended that the earlier limited prohibition against honoring
employer requests for referral of a specific individual be lift-
ed in the case of nonwhite workmen it would have said so
without leaving the matter ambiguous. Furthermore, as noted
by counsel for the General Counsel at page 25 of his brief,
the rules surely could not have contemplated that in a union
with a large minority component, nonwhite workers who had
not shaped sufficiently to receive priority in referral would
be referred ahead of their brethren who demonstrated by
signing the out-of-work register that they were seeking and
were eligible to seek referral.
Although the rules clearly specify in IV,C,2 that only
workmen whose names appear in the cumulative registration
list maintained at the hall more than five times in the pre-
vious 2-week period shall be entitled to priority in referral,
Ledwith testified that Administrator Moskowitz had approved
a significant modification of this rule. Because of men who
were out of work for longer periods of time, the Union
sought and obtained from the administrator a lengthening of
the out-of-work period to 15 days for which a cumulative list
of out-of-work registrants is prepared (thus changing 2 weeks
to 3 for such list), and listing those registrants in order of
priority, starting with those who signed the out-of-work or
referral register at least four times in a week. The Union
failed to offer any evidence that this amendment was ever
placed in writing or that members were apprised of it by
posting or otherwise. (See rule VIII granting power to the
administrator to modify the hiring hall rules, but only if
made in writing to the Union and the Government so that a
determination may be sought by either party as to the valid-
ity of the modification.)
Ledwith described also the daily procedure of setting out
the work referral sheet that workmen can sign starting at 7
a.m., and until 8:30 a.m., from the top down. The sheet also
includes a column to list social security numbers, among
other information. When Ledwith calls a name from the sep-
arate priority list which is prepared daily for the 15 prior
workdays he notes in a separate column opposite the man’s
name if he was sent out or if he was absent when his name
was called. Two absence of refusals to accept referral to a
particular job in any 1 week acts as a disqualification for in-
clusion on the priority list for the following week.
When workmen are referred out to a job they are asked
to sign a work referral sheet and the last man referred to the
job takes that sheet to the contractor. It includes the names,
signatures, social security numbers, and description of the
work to which the men are referred. When nonwhite work-
men are requested or referred the designation ‘‘M’’ is placed
next to their names.
During Ledwith’s cross-examination, he also noted that the
modification in hiring hall priority rules also included a pro-
vision lessening the number of days required to sign the out-
of-work register to fewer than four in a week in which a hol-
iday falls. Thus, in a workweek limited to 4 days, one need
register only 3 days and in a week with two holidays, one
need register only 2 days.
Ledwith also confirmed that various modifications in hir-
ing hall rules were not placed in writing but rather were ver-
bally approved by the administrator over the years at the
Union’s urging. Ledwith also verbally informed members of
these changes. The priority list, prepared by the week and
posted on Mondays, also shows the order of names of reg-
istrants starting at the top with those registered 15 days down
to those registered for 4 days.
When pressed about his degree of discretion in selecting
registrants for referral to jobs, Ledwith denied he had any.
As established in his testimony, from time to time, such as
in connection with the May 9 request from Northberry,
which was starting construction of a high rise, Ledwith will
learn from the foreman how long a particular job is sched-
uled to last. By virtue of Ledwith’s own experience and ex-
pertise he can also infer that such a job as a high rise will
last 3 to 4 months. Other jobs Ledwith will also learn will
last only a couple of days. Yet, Ledwith agreed that nothing
in the rules sets out how he should go about making referrals
when he receives multiple contractor requests for workmen
on the same day before seeking workers for these jobs.
Ledwith did explain that in the situation described, with, e.g.,
three jobs of varying duration and the foremen now having
made requests, he will go out to the membership and inform
them of the job locations, nature of job, whether high rise,
roll out wire, or slab job, the approximate duration, and then
call out names in order from the priority list.
Ledwith has also skipped over names where they did not
meet specific contractor work experience requirements.
In one particular striking deviation from the written hiring
hall rules, Ledwith testified that within the group of workers
on the priority list who have the same number of out-of-work
days, e.g., those with the highest or 15 days’ priority, the
names are listed in alphabetical order. In selecting workers
for referral Ledwith will follow this alphabetical sequence in
calling out names for referral. This admitted practice directly
contradicts the hiring hall rule which requires that ‘‘If more
988 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
than one (1) workman is entitled to the same priority, the
workman who registers earlier on the day of referral shall be
entitled to the first referral.’’ (Rule IV,C,3.) I have earlier
noted that in referring Daryl Moore to the Northberry job on
May 9, while Moore was ninth on the priority list, Ledwith
failed to note or account for the fact that although present
in the hall, Moore did not sign the out-of-work register for
that day, as required by rules IV,3 and IV,C,5. These sec-
tions, read together, specify that entitlement to priority re-
quires not only priority on the priority list but also that the
workman report his priority on the daily hiring hall ‘‘sign
in’’ sheet.
A review of the series of contractor’s sheets received in
evidence, show that while they note those registrants who
were referred as nonwhite workmen, because of the ‘‘M’’
designation next to their names, there are no records which
show the contractor’s requests for nonwhite workmen and
whether they were requested by name, other than the word
‘‘request’’ which Ledwith wrote next to the names of James
Hatcher and Howard Golding on May 9, 1994, when he re-
ferred them to Pinnacle Concrete. Without such records, in
particular, confirming records from the contractor, the busi-
ness agent’s discretion to select among nonwhite workmen is
readily apparent. On the same date, May 9, 1994, that
Ledwith referred minority members James Hatcher and How-
ard Golding to Pinnacle Concrete at 92d Street and York Av-
enue, there were a number of other nonwhite workmen on
the priority list who had also signed the sign-in sheet, includ-
ing Fred James. And Hatcher’s name does not appear on the
priority list for the week of May 9. Thus, the record only
has Ledwith’s word in support that Pinnacle requested
Hatcher and Golding by name to warrant their referral over
other nonwhites, on the priority list, even if the rules per-
mitted such priority, which I have rejected.
The General Counsel’s witnesses testified to a number of
other instances of alleged circumvention of the recognized
hiring hall rules. Fred James testified to an incident involving
a workman named Johnny Rodriguez which occurred in the
fall of 1994, 4 or 5 months after the May incident involving
Northberry. Rodriguez had 13 days on the priority list. There
had been some kind of confrontation between Rodriguez and
Ledwith. On the date in question, with both Rodriguez and
James present in the hiring hall, Ledwith first called the two
names at the top of the priority list for referral, but instead
of continuing down the list to reach Rodriguez’ name,
Ledwith started to call names starting at the bottom of the
list and working his way up. When Rodriguez brought this
deviation of the rules to James’ attention, James was able to
confirm what had happened from looking at the weekly pri-
ority list posted in the front of the hall. Rodriguez said, ‘‘you
see what Bobby did,’’ James looked at the list and said,‘‘
yeah.’’ As a result, Rodriguez’ name was skipped and not
called in breach of the hiring hall rules.
Zaid Abdullah testified that the Union did not refer him
to the job he held at the time of his appearance as a witness
in this proceeding on May 3, 1995. He was called directly
by the contractor, although his name was listed on the shape
lists. (It is unclear whether this refers to the weekly priority
lists or to the daily sign-in sheet.) The union delegate gave
him a workslip to go to the job.
Abdullah also testified that in 1992 he had been employed
at a union job on 92d Street and either First or Second Ave-
nue in Manhattan. The job was coming to an end; Abdullah
was laid off but certain workmen were retained on the job
to finish up. About a week later, and after shaping the hall
every day since his layoff, he saw three of these workmen
who had stayed on the job come to the hall. On that very
day, the first day these workmen returned to the hall, they
and a fourth worker who had not been shaping at all, were
all referred out on a new job. A half hour later Abdullah ap-
proached Ledwith and asked him for a job. Ledwith asked
if his name was on the shape list. Abdullah replied he had
just seen Ledwith send out four people who weren’t on the
shape list, three of whom had been on the same job with him
and had got laid off after him. Ledwith now said he sent
these men out on specialty jobs. When Abdullah asked what
kind, Ledwith said layout and bending machine. Abdullah re-
sponded that a bunch of us can do layout and work a bend-
ing machine. Ledwith then spent considerable time trying to
convince Abdullah that nobody else could do the job to
which they had been assigned. Abdullah said he had done
both layout and bendings work. At the 92nd Street job he
and the other three had been doing layout and tying slab.
During his cross-examination, Abdullah agreed he had told
Ledwith that he was not able to operate a PG 4 bending ma-
chine, but he did so because he believed operation of the ma-
chine was dangerous. In fact, he ended up operating the ma-
chine anyway. Abdullah also acknowledged that he had not
signed up for a course given by the joint apprenticeship com-
mittee on journeyman upgrading, but only because he had
not been made aware timely of the existence of the course,
only later learning of the course by word of mouth. If a no-
tice was sent to members, he didn’t receive one; members
have complained of not receiving union mail and he, himself,
had complained of not receiving any.
During his direct examination, Ledwith did not respond di-
rectly to Abdullah’s detailed testimony of having been by-
passed for referral by three workers laid off after him who
had only appeared at the hall on the very day they were im-
mediately dispatched out again. He claimed lack of recall as
to that incident, in spite of having spent considerable time
with Abdullah that morning explaining his referral of the
three ahead of Abdullah. Neither did Ledwith deal with
James’ testimony about Rodriguez’ name having been by-
passed in the fall of 1994 after some dispute with Ledwith
and in spite of Rodriguez having 13 out-of-work days near
the top of the priority list. Nor did Ledwith respond to
Abdullah’s claim to having been contacted directly for a job
by a union contractor in violation of hiring hall rules.
Ledwith did testify generally about sending men out of
order when their special skills were requested, such as in the
operation of a PG 4 bending machine, use of an alligator cut-
ter, use of certain welding and laser torches requiring a li-
cense to operate, and tag writing, which involves skills in
laying out and then executing the job at the jobsite. As for
the PG 4 bending machine, he recalled that some 4 or 5
months before the hearing, he had openly asked members in
the hall if they could operate the machine, and had ap-
proached Abdullah about his experience or skills in this area.
Abdullah, in front of 50 people had responded no, when
asked if he could operate the machine.
In order to raise members’ skills as the machinery in use
in the trade becomes more sophisticated, and in the view of
Abdullah and perhaps other members, presents a greater risk
989IRON WORKERS LOCAL 46
3 Respondent’s attempt to show that this or another job to which
James was referred after May 9 lasted 3 to 4 months is basically
irrelevant on the issue of liability. It is the May 9 nonreferral which
is at issue. Furthermore both James and Abdullah credibly testified
that they were told by their respective foremen that their tenure at
different jobsites was 2 days, and not any longer. The evidence does
not preclude a practice by some contractors of hiring iron workers
in phases even on beginning high rise projects.
of injury arising from their operation, a journeyman upgrad-
ing program was instituted, probably in 1994 or earlier, han-
dled by the apprentice coordinator and involving qualified
members as instructors. The Union sent out a letter to the
membership describing the course designed to upgrade their
skills. Notice was also given by word of mouth, spread by
agents and business managers. Workers would sign up on a
list maintained at the hiring hall behind the counter. The re-
sponse among those who signed up was disappointing, with
only a third showing up at the first meeting. I have pre-
viously noted Abdullah’s testimony about his lack of written
notice, and his belatedly hearing about the training, too late
to participate or be selected for the initial training.
D. Credibility Resolutions
In weighing the relative credibility of James and Ledwith
on their conversations central to the resolution of the issues
in this case, I am most influenced by the following factors.
It is evident that Local 46 received a copy of James’ unfair
labor practice charge and covering letter on May 4, but after
James and Ledwith conversed earlier that morning. Although
there is some dispute as to whether and when Ledwith be-
came personally aware of the charge, I am convinced that ei-
ther sometime during the 9 to 5 business day on May 4 and
certainly no later than May 6, Ledwith was made personally
aware of the charge. Ledwith was evasive, contradictory, and
ultimately not credible in denying any knowledge of the
charge and its contents until shortly before trial. His indeci-
siveness is made explicit in his answer I quoted earlier (Tr.
168). In later grasping at the administrator and attorney’s
handling of the charge, when no administrator was in place
at the time the charge was filed and mailed to the Union,
Ledwith was clearly seeking to avoid any direct involvement
or knowledge at the expense of the truth. At this point,
Ledwith had to have realized that his earlier reliance on the
sole responsibility of the business manager in dealing with
a charge personally naming him as the union representative
to contact and as to an allegation involving his administra-
tion of the hiring hall job referral function, was not a very
satisfactory or honest reply. Clearly, logic and reason support
the finding that Ledwith was early provided with the charge
so that a defense by the Union could be made. In finding
that James’ version of his conversations on both May 4 and
9 are far more credible than Ledwith’s, I am also convinced
that, contrary to Ledwith’s version, James would not have
had the advance information that the Northberry Corp. would
be starting a high rise project in the near future. Certainly,
Respondent failed to adduce any evidence that James or
other workers would have been aware of the scheduling of
future Manhattan construction projects and by companies for
whom they had not been recently employed. Further, it
strains credulity for Ledwith to have testified that on both
May 4 and 9 he repeated a recital of the wellknown hiring
hall procedures to a 25-year member who would have been
expected to have and did show at trial a basic understanding
of the rules relevant to the incidents, instead of dealing with
an evident request by a litigious and long out-of-work mem-
ber to a job on May 4 and a particular complaint about a
bypass on May 9. I am further convinced that when Ledwith
referred to James’ filing of the charge on May 9, he was
holding the relevant documents in his hand. This finding is
consistent with the earlier findings I have made and is sup-
ported by James’ specific, reasonable, and credible testi-
mony.
The Union’s and Ledwith’s defense that he and another
business agent referred James to a number of jobs later in
May and subsequent months and, in fact, that Ledwith lent
him money and held a job for him so that James could take
a referral in January 1995, to a job which continued at least
to the trial date, are not persuasive that Ledwith did not rely
on James’ filing of a charge in denying him a promised re-
ferral. This is so, because Ledwith’s expression of anger and
animus toward James would have been strongest on imme-
diately learning of the charge, and that as time elapsed and
some good sense took hold, Ledwith would have shown a
more balanced attitude toward a militant minority member
like James. In fact, it was in character for Ledwith to have
come to see over time that an effort to be and to appear fair
to minority members in exercising the referral function made
good sense and helped to lessen racial conflict and tensions,
in spite of the pendency of the Federal lawsuit that James,
Abdullah, and other nonwhite members had joined. Further-
more, James, Abdullah, and other more, militant, nonwhite
members constituted a large constituency within the Local
and their view and interests required a responsive administra-
tion if for no other reason, than that it made political sense
to its longtime elected officials like Ledwith. Besides, any
referrals and extra attention afforded James on referral after
the fact, might lessen not only any evidence of discrimina-
tion arising in this case but in the Federal litigation as well.
Ledwith’s holding of a job for James for 10 minutes in the
hall and for a longer period of time until he could report to
the jobsite, in spite of his failure to respond to the job refer-
ral timely when the job and his name was called and not
being ready to work when he finally showed, are evidence
of the wide degree of discretion Ledwith exercised, contrary
to his denial, in administering the hiring hall rules and proce-
dures. James was neither present in the hall nor signed up
on the sign-in sheet, nor ready for referral as a workman
once he arrived, when the job offer was made. Thus under
the rules James should have been marked absent. Ledwith
bent the rules to an inordinate degree to refer James to a job
on this occasion well after the issuance of the complaint.
I also find that Ledwith in a moment of intimacy and con-
fidentiality, on an occasion of warmth and union solidarity
at the weekly picket line on West 43d Street let his hair
down with Abdullah and spoke frankly about member James’
propensity to file charges with the Labor Board and his im-
mediate negative response to a charge recently filed. I find
this conversation took place on May 20, not May 27, before
Ledwith referred out James to a 2-day job on May 23.3 This
conversation with Abdullah essentially corroborates the con-
versation Ledwith held with James on May 9 during which
he denied James a referral because of his having filed the
charge.
990 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Although I have credited Abdullah on his private con-
versation with Ledwith in mid-1994, I am persuaded that
Abdullah in all probability made the physically threatening
remark attributed to him by Ledwith and Terrence Moore in
late 1994 or early 1995. Undoubtedly, the threat grew out of
a meeting held among Abdullah, Ledwith, and LeMoine and
some remarks made or positions taken there. Abdullah‘s
manifestation of disrespect for Ledwith on this occasion is
not inconsistent with his attitude toward Ledwith’s unsatis-
factory dealings with nonwhite members, as evidenced by his
claim of manipulation of the referral process and his partici-
pation in the outstanding Federal lawsuit. Although I cannot
credit Abdullah’s denial on this matter I find Abdullah credi-
ble on his mid-May conversation with Ledwith and his re-
counting of his direct hire and Ledwith’s bypass of him on
referral.
Aside from the credited instance of Ledwith’s reliance on
James’ charge in refusing him referral, I deal now, in par-
ticular, with Ledwith’s alleged promise to refer James to the
Northberry job made on May 4 and with the instances of the
alleged circumvention of the referral rules in actual practice
and Ledwith’s denial of any deviation from the rules.
I have credited James as to his conversation with Ledwith
on May 4 as well as on May 9. I have given various reasons
for having done so. The Union nevertheless argues that
Ledwith could not have made the credited promise, and even
if he did so, his fulfilling that promise would have violated
the hiring hall rules and, therefore, cannot result in a make-
whole remedy for James.
As the earlier discussion of the hiring hall operation in
practice makes clear, Ledwith did not lack authority to ad-
minister the rules regarding at least Manhattan referrals in a
manner different from the written rules and in furtherance of
his own and the Union’s particular agenda. Thus, priority
among workmen with the same listed priority days did not
follow the rules requirement of according priority based on
the order of signing the daily hiring hall sheet but rather was
based on the alphabetical order of the workmen’s last name.
This was an arbitrary device that clearly impacted the job du-
ration of workmen. Where the rules were silent, as to the
order in which job orders received the same day were re-
ferred out, Ledwith had discretion to select an order which
could favor certain workmen over others. It is doubtful
Ledwith announced three jobs as he described and asked
workmen in a high priority status to accept a referral to a
2-day job which he had announced simultaneously with the
startup of a long-term high rise job. In any event, Ledwith
had to establish a priority here because the rules did not
cover the situation. The absence of notations as to requests
for workmen, and nonwhite workmen in particular, permitted
Ledwith to select minority workmen in an order or priority
which precluded verification.
Another example of an informal variance, from the referral
rules, were direct referrals, bypassing the hall, but with the
later ratification of the union agent. Discretion is also appar-
ent in the experience and special skills area, where subjective
determinations of skill levels permitted Ledwith to refer out
three workmen who could not have been on the priority list
because they had been working until the very day of their
referral, and ahead of workmen who may have and probably
did possess the special bending machine skills, aside from
Abdullah’s skill level in this area which was probably satis-
factory in spite of his having denied his qualifications to
Ledwith on one occasion because of safety concerns.
The most damaging instance of circumvention of the rules
was the instance when member Rodriguez was bypassed
without explanation and for what appear to be invidious rea-
sons. Particularly in the absence of contrary testimony, and
on the basis of the credibility of the narrative by Fred James,
I find that Ledwith misused the referral rules to punish
Rodriguez, and did so with impunity. On the bases of this
instance and the practices previously discussed, it would not
have been inconsistent for Ledwith to have responded to
James’ entreaty for work to inform him that a long-term job
would be shortly available. James was a nonwhite workman
who had filed past charges against the Union and was a
plaintiff in a pending Federal lawsuit alleging race discrimi-
nation on referral and Ledwith was in a position to provide
work for him to seek to undercut James’ allegations. It was
only when Ledwith became aware that James had filed his
last charge, filed some days before the May 4 conversation
but not received by Local 46 or Ledwith until after the May
4 offer, that Ledwith’s position hardened and in a fit of
anger he reneged on his promise to James.
Analysis and Conclusions
Based on my credibility resolutions and the exclusive re-
ferral agreement in effect between Local 46 and the various
employer-members of the Cement League, I now conclude
that Business Agent Robert Ledwith discriminatorily refused
to refer Charging Party Fred James to a job with the
Northberry Corp. on May 9, 1994, and thereby violated Sec-
tion 8(b)(1)(A) and (2) of the Act. By specifically denying
James the referral because he had recently filed an unfair
labor practice charge alleging race discrimination on referrals
out of the Union’s hiring hall, Ledwith was demonstrating
that he was motivated by James’ exercise of his rights under
Section 7 of the Act, in particular his right to make and pur-
sue a charge under the Board’s processes, in refusing James
a referral he had earlier promised him. Such conduct violates
not only Section 8(b)(1)(A), see Painters Local 1115 (C &
O Painting), 312 NLRB 1036, 1042 (1993), and Section
8(b)(2) as well. As noted and found by the Board in Elec-
trical Workers IBEW Local 675 (S & M Electric), 223
NLRB 1499 (1976), in rejecting the conclusion of the admin-
istrative law judge, that the record lacked any evidence that
the union there, directly or indirectly induced any employer
to refuse employment to the charging party:
This conclusion must be rejected. The Board has con-
sistently found a violation of Section 8(b)(1)(A) and (2)
of the Act where a union has discriminatorily refused
to refer an employee for employment pursuant to the
terms of an exclusive referral system in effect between
the union and an employer. Such union conduct, by its
very nature indirectly induces the Employer to refuse
employment to that employee in violation of Section
8(a)(3). Hence, we find that by discriminatorily refusing
to refer [employee] Owchariw for employment, the Re-
spondent Union violated Section 8(b)(2). [Cited cases
omitted.]
Just as in Electrical Workers IBEW Local 675, the charg-
ing party had filed a charge with the Board against the re-
991IRON WORKERS LOCAL 46
4 Such a remedy, the usual one in cases of this nature, will not
conflict with the court-approved hiring hall rules, which the record
establishes were interpreted with a degree of self-interest and were
deviated from on other occasions and, particularly this occasion, to
Continued
spondent union alleging that it unlawfully failed to refer him
to jobs. In reliance on that charge, as well as a subsequent
complaining letter, the administrative law judge inferred, and
the Board affirmed, that the charge and letter substantially
caused the union business agent not to refer him to jobs to
which he was entitled under the union referral system. Here,
in a case containing stronger and more direct evidence of
animus, the union agent made his decision in explicit reli-
ance on the employee’s filing of a charge. While under a
strict reading of the rules of the hiring hall, James would not
have been eligible for the particular referral at issue, my
other credibility resolutions as well as the evidence of in-
stances of circumvention of the rules and the discretion
which Ledwith exercised to achieve his and the Union’s ends
even where contrary to the rules, I also conclude that the
weight of the evidence establishes that James was discrim-
inatorily denied a referral on May 9 which, but for Ledwith’s
illegally motivated conduct, he would have received.
I have previously found that Ledwith on May 4 made the
promise to refer James to the Northberry job. That promise
alone shows that Ledwith had the discretion to offer referrals
when it suited the Union strategically to do so. At the time
it was in the Union’s interest to blunt the general claim as-
serted in the pending Federal suit in which James appeared
as a plaintiff that complaining nonwhite workmen would not
receive favorable job referrals so long as they met minimum
shape requirements. Ledwith was responding as well on May
4 to a member’s plea for help and at the time was favorably
disposed to grant it.
The record also shows that Ledwith exercised considerable
discretion on matters both contrary to, and not covered by
the rules, in determining, e.g., which out-of-work members
shall receive preference when a group of them had the same
number of days listed on the out-of-work register, and in de-
termining the order of referral to jobs of greatly varying du-
ration for which contracting employers made same day work-
er requests. Of greatest weight in demonstrating Ledwith’s
breach of the rules, was his arbitrary and invidious bypass
of worker John Rodriguez in spite of his 13 days of priority.
The lack of detailed request records, the honoring of requests
for particular nonwhite workmen, and the subjective deci-
sions on workers’ experience and qualifications also add to
the ambiguous atmosphere in which Ledwith functioned in
administering the Union’s job referral responsibilities under
its exclusive referral agreement.
All of these factors lead me to conclude that Ledwith, in
the exercise of the authority he possessed under his adminis-
tration of the hiring hall rules and practices, reneged on a
promise to refer James to the anticipated Northberry job
when it became available, because James filed his most re-
cent charge with the Labor Board. Such conduct violates
Section 8(b)(1)(A) and (2) of the Act. Electrical Workers
IBEW Local 675, supra; Laborers’ Local 1334 (Western
Sign), 281 NLRB 185 (1986); Electrical Workers IBEW
Local 211 (NECA) v. NLRB, 821 F.2d 206 (3d Cir. 1987).
See also Plumbers Local 38 (Bechtel Corp.), 306 NLRB 511
(1992).
Because the Respondent Union’s agent reneged on a
promise of referral I have concluded he had the discretion
and authority make, I also conclude that absent James’ filing
of the instant charge, the agent would have referred him to
the Northberry job. Thus, the Union has failed to meet its
burden under Wright Line [251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981).] that absent James’ protected
concerted activity it would not have referred him. NLRB v.
Transportation Management Corp., 462 U.S. 393, 399–403
(1983). See Teamsters Local 287 (Consolidated
Freightways), 300 NLRB 539, 548 (1990); Polis
Wallcovering Co., 262 NLRB 1336, 1340 (1982).
CONCLUSIONS OF LAW
1. Respondent Local 46, Metallic Lathers Union and Rein-
forcing Iron Workers of New York and Vicinity of the Inter-
national Association of Structural and Ornamental Iron
Workers is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
2. Employer-members of the Cement League are employ-
ers within the meaning of Section 2(2) and are engaged in
commerce as defined in Section 2(6) and (7) of the Act, and
it will effectuate the policies of the Act to assert jurisdiction
over Respondent in this proceeding.
3. At all times material, Respondent and the Cement
League have maintained and been parties to a collective-bar-
gaining agreement providing, inter alia, that Respondent shall
be the exclusive source of workmen employed under the
terms of the said agreement.
4. Northberry Corp. is a member of the Cement League
and a party to the collective bargaining described in para-
graph 3, above.
5. By, since May 9, 1994, failing and refusing to refer
Fred James to employment with Northberry Corp. because he
filed an unfair labor practice charge with the Board and en-
gaged in other protected concerted activities, the Respondent
has been restraining and coercing employees in the exercise
of the rights guaranteed them in Section 7 of the Act in vio-
lation of Section 8(b)(1)(A) of the Act.
6. By the same conduct described in paragraph 5, above,
the Respondent has been attempting to cause and is causing
Northberry Corp. to discriminate against employees for filing
charges with the Board in violation of Section 8(b)(2) of the
Act.
7. The foregoing unfair labor practices affect commerce
within the meaning of Section 2( 6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in and is
continuing to engage in unfair labor practices within the
meaning of Section 8(b)(1)(A) and (2) of the Act, I shall rec-
ommend that the Board order it to cease and desist and to
take certain affirmative actions which are necessary to effec-
tuate the policies of the Act.
With regard to Charging Party Fred James, I have found
that the Respondent unlawfully failed and refused to dispatch
him to an available job with the Northberry Corp. on May
9, 1994, based on an unfair labor practice charge he had filed
with the Board and other protected concerted activities. To
remedy this unlawful conduct, I shall recommend that James
be made whole4 for any loss of earnings and benefits he suf-
992 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
further Respondent’s institutional interests, without any evidence of
administrator oversight or review.
5 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621.
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
7 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.’’
fered. Backpay shall be computed in the manner set forth in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).5 Finally, the Respondent shall be ordered to
post a notice.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, Local 46, Metallic Lathers Union and
Reinforcing Iron Workers of New York and Vicinity of the
International Association of Structural and Ornamental Iron
Workers, New York, New York, its officers, agents, and rep-
resentatives, shall
1. Cease and desist from
(a) Operating its hiring hall in an arbitrary and discrimina-
tory manner.
(b) Refusing to refer applicants because they filed unfair
labor practice charges with the Board or engaged in other
protected concerted activities.
(c) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make Fred James whole for any loss of earnings and
benefits which he may have suffered since May 9, 1994, be-
cause of the Respondent’s discrimination against him be-
cause he filed unfair labor practice charges with the Board
and engaged in other protected concerted activities. Backpay,
with interest, shall be computed in the manner set forth in
the remedy section of this decision.
(b) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all hiring hall
records, dispatcher lists, job orders, contractor sheets, sign-
in sheets, referral calls, and other documents necessary to
analyze and compute the amount of backpay due James
under the terms of this Order.
(c) Post at its business offices and hiring hall located in
the Borough of Manhattan, city and State of New York, cop-
ies of the attached notice marked ‘‘Appendix.’’7 Copies of
the notice, on forms provided by the Regional Director for
Region 2, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
members are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
of this Order what steps the Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
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.
WE WILL NOT operate our exclusive hiring hall in an arbi-
trary or discriminatory manner.
WE WILL NOT refuse to refer applicants because they filed
unfair labor practice charges with the National Labor Rela-
tions Board or engaged in other protected concerted activi-
ties.
WE WILL NOT in any like or related manner restrain or co-
erce you in the exercise of the rights guaranteed you by Sec-
tion 7 of the Act.
WE WILL make Fred James whole, with interest, for any
loss of earnings and other benefits which he may have suf-
fered as a result of our discrimination against him because
he filed unfair labor practice charges with the Board and en-
gaged in other protected concerted activities.
LOCAL 46, METALLIC LATHERS UNION AND
REINFORCING IRON WORKERS OF NEW YORK
AND VICINITY OF THE INTERNATIONAL ASSO-
CIATION OF STRUCTURAL AND ORNAMENTAL
IRON WORKERS