Iron Workers Local 483 (Building Contractors)

National Labor Relations Board - Board Decisions

Jul 31, 1987

285 N.L.R.B. 123 (N.L.R.B. 1987)

IRON WORKERS LOCAL 483 (BUILDING CONTRACTORS)
International Association of -Bridge , Structural and
Ornamental Iron Workers, Local 483, AFL-
CIO and John A. Craner and Rudy Di Giorgio
and Building Contractors Association of New
Jersey, Party to the Contract
International Association of Bridge, Structural and
Ornamental Iron Workers , Local 11, AFL-CIO
and John A . Craner and Building Contractors
Association of New Jersey, Party to the Con-
tract. Cases 22-CB-3301, 22-CB-3514, and
22-CB-3302
31 July 1987
SUPPLEMENTAL DECISION AND
ORDER
By CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 3 March 1980 the National Labor Relations
Board issued its decision 1 finding that the Re-
spondents, Local 483 and Local 11, had violated
Section 8(b)(1)(A) and (2) of the National Labor
Relations Act by causing members of the Building
Contractors Association of New Jersey to discrimi-
nate against named employees and others similarly
situated in violation of Section 8(a)(3) of the Act.
On 9 February 1982 the United States Court of
Appeals for the Third Circuit denied enforcement
of the Board's Order and remanded the case to the
Board for further proceedings and more particular-
ized findings regarding the named alleged discri-
minatees.2 Thereafter, the Board on 8 July 1982 re-
manded the case to Administrative Law Judge
Melvin J. Welles.
On 23 March 1984 the judge issued his supple-
mental decision finding that Respondent Local 483
had committed no violation of the Act, but that
Respondent Local 11 had discriminated against
nonmembers in the operation of its hiring hall. The
Board remanded the case to the judge on 1 Octo-
ber 1984 to consider evidence regarding minority
employees and the effect of the contractor requisi-
tion registers. He issued his second supplemental
decision on 23 August 1985 reaffirming the conclu-
sions of his supplemental decision. The judge's sup-
plemental decision and second supplemental deci-
sion are attached. The General Counsel and Re-
spondent Local 11 have filed exceptions and sup-
porting briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the supplemental and
second supplemental decisions and the record in
248 NLRB 21.
2 672 F.2d 1159 (1982).
123
light of the exceptions, briefs, and remand from the
court of appeals and has decided to affirm the
judge's rulings, findings,3 and conclusions only to
the extent consistent with this Supplemental Deci-
sion and Order.
Local 11 operates an exclusive hiring hall pursu-
ant to an agreement with the Building Contractors
Association of New Jersey. Referrals of applicants
are made in accordance with the provisions of the
agreement, which includes, by reference, the con-
sent decree entered into in a Title VII action
brought against the Northern New Jersey District
Council of Iron Workers and its five locals of
which Local 11 is one.
The agreement provides that applicants are to be
referred out to employers on a nondiscriminatory
basis. Out of chronological order referrals are per-
mitted under the consent decree when: (1) a con-
tractor specially requests by name, an applicant
who had previously signed the referral register; (2)
a trainee or apprentice is requested; (3) a specific
request is made for an applicant as a foreman; (4)
experienced applicants are designated by the local
as stewards; (5) minority applicants are requested
by a contractor who is required to meet affirmative
action goals; and (6) requests for applicants are
made outside of normal referral hours or on week-
ends or holidays.
It should be noted that while failure to abide by
the provisions of the consent decree may not, in
and of itself, violate the Act, the decree has been
incorporated into the agreement under which the
hiring hall is operated. Disregard of contractual re-
ferral provisions provides an inference of unlawful
discrimination.4
The judge found that Local 11 violated Section
8(b)(1)(A) and (2) of the Act by discriminating
against Ralph Grisi, Anthony Pontrelli, Peter De
Maio, Joseph Tafro, Victor Tafro, and Michael
Fearns in referring its own members ahead of these
six nonmembers without explanation. He further
found that, based on a statistical analysis of the use
of various designations (i.e., steward, requested, re-
turned) on behalf of Local 11 members in referring
members out of chronological order as compared
with nonmembers, an inference could be drawn
that Local 11's use of the designations was dis-
3 The General Counsel has excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. 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 re-
versing the findings.
4 Discriminatory motive may be inferred absent evidence showing "le-
gitimate justification for a facially discriminatory referral " Iron Workers
Local 798 (Mobile ChapterAGC), 272 NLRB 679 (1984).
285 NLRB No. 20
124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
criminatory with regard to nonmembers similarly
situated to the named discriminatees. He awarded
backpay to the named nonmembers and those simi-
larly situated.
Respondent Local 11 has excepted to the figures
used by the judge in finding violations against the
named individuals and the conclusion that the use
of the designations showed violations with regard
to unnamed nonmembers.
While we conclude that Respondent Local 11
has bypassed the named nonmembers in violation
of the Act, we do so based on our own examina-
tion of the referral books, contractors' requisition
registers, and the record.5 We have relied solely on
those referrals in which members with no purport-
ed designations were referred ahead of the named
nonmembers out of chronological order. Based on
our review, we find that Respondent Local 11 vio-
lated Section 8(b)(1)(A) and (2) of the Act a total
of 87 times by affording preferential treatment to
its own members.6
However, contrary to the judge, our review of
the statistical evidence regarding the use of the des-
ignations for out-of-chronological-order referrals
does not support a finding that the designations
were used deceitfully. We note that the referral
books show that Local 11 members signed 2306
times as compared with 3211 for nonmembers. The
designations were used 964 times for Local 11
members and 528 times for nonmembers for refer-
rals out of chronological order. This results in a
ratio of nonmembers' use of the special designa-
tions to members of 1 to 2.5. Thus, Local 11 mem-
bers were two and one-half times more likely to be
referred out of order than nonmembers by the use
of the designations.
A review of the records shows that the use of
steward designation was used to afford members
preferential treatment 565 times and nonmembers
287 times. Thus, a member was 2.75 times more
likely than a nonmember to be called out of turn as
steward.
In neither instance do the ratios warrant a con-
clusion that the use of the special designations was
5 We note that in his second supplemental decision the judge found
nothing in the testimony of Robert Wallace, Respondent Local 11's busi-
ness agent, to explain any specific out-of-turn referrals of Local 11 mem-
bers ahead of the six discriminatees that did not have any apparent justifi-
cation either on the remarks column of the referral registers or in the
contractors' requisition registers The judge further found that even if
Wallace's testimony were to be read as a specific denial of any discrimi-
nation, such testimony would have to be discredited in view of the
number of times the six discrimmatees were bypassed We agree with
these findings of the judge
6 Specifically, the referral books, contractors' requisition registers, and
other exhibits reveal that from 31 October 1975 to 15 June 1977 Ralph
Grisi was bypassed 7 times, Peter De Maio, 15, Michael Fearns, 4,
Joseph Tafro, 18, Victor Tafro, 15, and Anthony Pontrelli, 28 See App
B
so grossly disproportionate as to require a finding
of "widespread and pervasive violations."7 Thus,
the record fails to establish by "overwhelming nu-
merical and statistical evidence" that Respondent
Local 11 continuously and systematically designat-
ed its own members as falling within excepted cate-
gories. Accordingly, we do not adopt the judge's
remedy granting backpay to similarly situated non-
members.
AMENDED CONCLUSIONS OF LAW
Substitute the following for paragraph 1.
"1. By attempting to cause and by in fact causing
the employer members of the Building Contractors
Association of New Jersey to discriminate against
the six individual ironworkers named in the com-
plaint in violation of Section 8(a)(3) of the Act, the
Respondent, International Association of Bridge,
Structural and Ornamental Iron Workers, Local 11,
AFL-CIO, has violated and is violating Sections
8(b)(2) and 8(b)(1)(A) of the Act."
AMENDED REMEDY
Having found that Respondent Local 11 has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(b)(1)(A) and (2) of
the Act, we shall order that Local 11 cease and
desist and take certain action designed to effectuate
the purposes of the Act. We shall also provide that
Local 11 make whole the named discriminatees for
any loss of earnings they may have suffered by
reason of Local 11's discrimination against them.
Painters Local 985 (W. F. Sahualia), 194 NLRB
323 (1971); Superior Maintenance Co., 133 NLRB
746 (1961).
With respect to backpay, it shall be computed
under a formula in which the overall earnings of
all applicants (members and nonmembers) seeking
employment through Local 11's referral system
shall be divided by the total number of ironworkers
who worked out of the hiring hall, taking into ac-
count the net earnings of the individual discrimina-
tees during the relevant period, plus interest as pro-
vided in New Horizons for the Retarded."
7 In comparison, the ratios in the previous cases showed a wide dispar-
ity See Iron Workers Local 45, 232 NLRB 504 (1977), enfd 586 F 2d 834
(3d Cir 1978), Iron Workers Local 45, 235 NLRB 211 (1978), Iron Work-
ers Local 373, 235 NLRB 232 (1978), enfd 586 F 2d 835 (3d Cir 1978);
Iron Workers Local 480, 235 NLRB 1511 (1978), enfd 598 F 2d 611 (3d
Cir 1979)
8 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after I January 1987 will be com-
puted at the "short-term Federal rate" for the underpayment of taxes as
set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts
accrued prior to 1 January 1987 shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
IRON WORKERS LOCAL 483 (BUILDING CONTRACTORS)
We shall additionally require that Respondent
Local 11 keep and retain for a period of 2 years
permanent written records of its hiring hall oper-
ations and make those available to the Regional Di-
rector on request . We shall also order Local 11 to
submit to the Regional Director four quarterly re-
ports concerning the employment of all the named
discriminatees . Further, we shall require Respond-
ent to place its referral registers , for a period of 2
years, on a table or ledge in its hiring hall for easy
access and inspection by the applicants on the com-
pletion of each day ' s entries in such registers. Fi-
nally, we shall direct that Local 11 post an appro-
priate notice.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent , International Association of Bridge,
Structural and Ornamental Iron Workers , Local 11,
its officers , agents, and representatives , shall take
the action set forth in the Order as modified.
1. Substitute the following for paragraph A,1(a).
"(a) Causing or attempting to cause the separate
employer-members of Building Contractors Asso-
ciation of New Jersey , or any other employer, to
discriminate against any of the following employ-
ees in violation of Section 8(a)(3) of the National
Labor Relations Act because of their lack of mem-
bership in Local 11:
Victor Tafro Michael J. Fearns
Joseph Tafro Anthony Pontrelli
Peter DeMaio Ralph Grisi"
2. Substitute the following for paragraph A,2(b).
"(b) Submit four quarterly reports to the Region-
al Director, due 10 days after the close of each cal-
endar quarter subsequent to the issuance of this de-
cision , concerning the employment of the above-
named employees . Such report will include the
date and number of job applicants made to the Re-
spondent, the date and number of actual job refer-
rals by the Respondent , and the length of such em-
ployment during such quarter."
3. Substitute the following for paragraph A,2(d).
"(d) Make whole each of the above -named em-
ployees for any loss of earnings suffered as a result
of the discrimination against them , in the manner
set forth in the remedy section of the decision."
4. Substitute the attached notice for that of the
administrative law judge.
APPENDIX A
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
125
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT cause or attempt to cause the em-
ployer-members of the Building Contractors Asso-
ciation of New Jersey, or any other employer, to
discriminate against any of the following employ-
ees in violation of Section 8(a)(3) of the National
Labor Relations Act because of their lack of mem-
bership in Local 11:
Victor Tafro Michael J . Fearns
Joseph Tafro Anthony Pontrelli
Peter DeMaio Ralph Grisi
WE WILL NOT in any other manner restrain or
coerce employees or applicants for employment in
the exercise of the rights guaranteed them by Sec-
tion 7 of the National Labor Relations Act.
WE WILL keep and retain for a period of 2 years
permanent written records of our hiring and refer-
ral operations that will be adequate to disclose
fully the basis on which each referral is made and,
on the request of the Regional Director for Region
22, or his agents, make available for inspection, at
all reasonable times, any records relating in any
way to the hiring and referral system.
WE WILL submit four quarterly reports to the
Regional Director , due 10 days after the close of
each calendar quarter subsequent to the issuance of
the Board 's Decision and Order , concerning the
employment of the above-named employees. Such
reports shall indicate the date and number of job
applications made to us, the date and number of
our actual referral , and the length of such employ-
ment during such quarter.
WE WILL place the referral registers, for a
period of 2 years , on a table or ledge in our hiring
hall for easy access and inspection by the appli-
cants as a matter of right , upon completion of each
day's entries in such registers.
WE WILL make whole each of the above-named
employees , for any loss of earnings they may have
suffered as a result of our discrimination against
them , plus interest.
INTERNATIONAL ASSOCIATION OF
BRIDGE, STRUCTURAL AND ORNA-
MENTAL IRON WORKERS , LOCAL 11,
AFL-CIO
126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX B
Respondent Local 11, at the minimum, has vio-
lated Section 8(b)(1)(A) and (2) of the Act with re-
spect to the named nonmember discriminatees set
forth below by referring the following members
out of chronological order' with no purported des-
ignations under the consent decree.2
Discriminatee Member Referred Date Referral
Signed Date
1. Ralph Grisi
a. A. Grisi........ 11/8/75
Eugene Mikell ...... 11/8/75
C. L. Wilcox......... 11/9/75
John Jordan .......... 11/12/75
C. Henderson........ 11/16/75
John Gayton........ 11/26/75
b. R. Grisi......... 5/10/76
Willie Johnson ..... 5/13/76
L. Billings............. 5/13/76
7 violations .............
2. Peter DeMaio
a. P. DeMaio .... .......................... 2/3/76
J. Hartnet .............. . 2/4/76
C. L. Wilcox......... 2/4/76
Hugh Hughes....... 2/10/76
Joseph Guyton..... 2/10/76
E. Boyle ............... 2/10/76
G. Halpin .............. 2/17/76
Odell Rice ............. 2/26/76
b. P. DeMaio ..... ............................. 5/5/76
R. Hartnet ... ........ 5/5/76
R A. Perry ........ 5/5/76
G. Woodall........... 5/6/76
c. P. DeMaio ..... ............................. 6/1/76
John Jordan ........ 6/3/76
R. Dolan ............. 6/7/76
d. P. DeMaio .... ............................. 12/14/76
N. Ingram .............. 1/5/77
Joseph Pittman ..... 1/7/77
W. Spears .............. 1/7/77
15 violations...........
11/30/75
11/22/75
11/22/75
11/24/75
11/24/75
11/26/75
6/14/76
6/13/76
6/8/76
3/18/76
3/12/76
2/29/76
3/5/76
3/4/76
3/2/76
3/12/76
3/4/76
5/27/76
5/25/76
5/11/76
5/25/76
6/22/76
6/21/76
6/15/76
3/1/77
2/23/77
2/23/77
2/24/77
3. Michael Fearns
a. M. Fearns ...... ............................ 12/8/75 12/22/75
Den Lemma .......... 12/9/75 12/16/75
b. M. Fearns ...... ............................. 4/6/76 4/28/76
J. Soto ................... 4/6/76 4/14/76
C. Henderson ........ 4/7/76 4/14/76
R. A. Perry ........... 4/12/76 4/19/76
4 violations .............
4. Joseph Tafro
a. J Tafro .......... ............................
W. Freeman .........
11/3/75 11/18/75
11/4/75 11/10/75
1 Although there are instances set forth in which the named discrimm-
atee and member of Local 11 registered at the hiring hall on the same
date, an examination of the referral books discloses that in each instance
the named discnmmatee signed in before the member.
2 The consent decree under which the referral hall operates permits
out-of-order referrals for minorities requested by contractors who are ob-
ligated to meet affirmative action requirements Therefore, minorities
who were referred out of order without such request are considered un-
explained preferences.
Discrimmatee Member Referred
b. J. Tafro ......... ...........................
C. L. Wilson ........
E. Boyle ...............
c. J. Tafro ......... .............................
H. Prather .............
Walter Phillips......
d. J. Tafro......... ..........................
Jerry Warren ........
R. A. Perry...........
e. J. Tafro.......... ..........................
Harry Prather.......
R. Dolan ...............
f. J. Tafro ......... .............................
C Henderson.......
g. J. Tafro .......... ....... :.......... ..........
M Ruane ...............
h. J. Tafro ......... ...........................
C. Champas..........
i. J. Tafro ........... ............................
C. Henderson ........
R. Polaneo .............
Joe Guyton ...........
A. Simpkins..........
j. J. Tafro ......... ...........................
N. Ingram .............
Joseph Pittman .....
18 violations...........
Date Referral
Signed Date
1/15/76 3/7/76
2/4/76 2/29/76
2/10/76 3/2/76
3/19/76 4/8/76
3/26/76 4/5/76
3/26/76 4/5/76
4/28/76 5/20/76
4/30/76 5/14/76
5/5/76 5/11/76
6/4/76 6/28/76
6/7/76 6/24/76
6/7/76 6/15/76
8/12/76 9/7/76
8/25/76 9/3/76
9/19/76 10/4/76
9/10/76 9/27/76
10/13/76 11/9/76
10/21/76 11/1/76
11/15/76 12/10/76
11/16/76 11/24/76
11/24/76 12/9/76
11/26/76 11/26/76
12/1/76 12/1/76
12/14/76 2/24/76
1/5/76 2/23/77
1/7/76 2/23/77
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
MELVIN J. WELLES, Administrative Law Judge. On
February 9, 1982, the Court of Appeals for the Third
Circuit' denied enforcement of the Board's Order2 in the
above-entitled proceeding, remanding the case to the
Board "for such further proceedings as it deems appro-
priate in accordance with this opinion." Thereafter, the
Board remanded the case to me "for the purpose of pre-
paring and issuing a Supplemental Decision, -setting forth
resolutions of the credibility of the witnesses, and con-
taining new findings of fact, conclusions of law, and a
recommended order in light of such findings and conclu-
sions."
In its initial decision, the Board concluded, adopting
my findings, conclusions, and recommendations, that the
two Respondents, Local 483 and Local 11 of the Iron
Workers, violated Section 8(b)(1)(A) and (2) of the Act
by discriminating in the operation of their respective
hiring halls, and ordered that they cease and desist from
such violations, and make whole specified individuals
named in the complaint, and all other nonmember appli-
cants similarly situated for loss of earnings resulting from
Respondents' discriminatory operation of their hiring
halls.
I NLRB v. Iron Workers Local 483 and Local 11, 672 F 2d 1159 (3d
Cir. 1982)
2 248 NLRB 21 (1980).
IRON WORKERS LOCAL 483 (BUILDING CONTRACTORS) 127
In deciding the case initially, I was, of course, bound
by the Board law contained in a series of five cases in-
volving various locals of the Iron Workers.3 The appli-
cable precedents, as stated in the original decision, were:
(1) the use of "requested" referral registrations was not a
valid defense to a member's referral ahead of a non-
member unless the request was supported by a letter in
the file, or by other specific objective evidence; (2) the
use of the "recalled" could not justify nonmembers being
bypassed by a member, because the consent decree did
not provide for such an exception; (3) the use of a "stew-
ard" designation, although a permitted exception under
the consent decree could not be used to refer a highly
disproportionate number of union members out of turn;
(4) all nonmembers similarly situated to the discrimina-
tees actually named in the complaints and litigated
should be made whole in the same manner as the named
discriminatees; and (5) the backpay formula for both the
named discriminatees and the others similarly situated
would be based on the overall earnings of all applicants
at the particular hiring hall.
The five Board orders referred to were all enforced by
the Third Circuit without opinion. In the instant case, as
noted, the Third Circuit denied enforcement. In so
doing, the court said (672 F.2d at 1165-1166): "We do
not interpret our previous summary enforcement orders
as establishing legal principles of broad application
which relieve the General Counsel of proving his case
and the Board of articulating its findings with sufficient
specificity to permit the respondents to mount a mean-
ingful defense and this court to perform a meaningful
review. . . [T]hose cases involved findings of unique
and overwhelming factual situations which the Board
may have believed to be present here but which the
Board did not explicitly or even implicitly find to be
present"
More specifically, the court said that a "failure to
comply with the consent decree does not necessarily
constitute a violation of the Act." The court also stated
that "requested" referrals without supporting letters, "re-
called" or "returned to work" referrals, "or even unex-
plained out-of-order referrals, all of which might in some
circumstances constitute persuasive evidence of discrimi-
natory intent, do not in themselves constitute violations
of the Act unless and until the Board finds by substantial
evidence that the referral was in fact based upon union
membership or activity and that the purported justifica-
tion, if any, is mere pretext." The court did point out
that, "However, a union's disregard of the contractual
rules for operation of a hiring hall has been considered to
be strong evidence of unlawful discrimination," citing
Board and court cases, 672 F.2d at 1165 fn 14.
Finally, the court said that the earlier cases do not
constitute "the law" with respect to "the propriety of ex-
tending the remedy to `all others similarly situated."'
Again, the court indicated that its enforcement of such a
broad remedy in the earlier cases was predicated on spe-
' These cases are Iron Workers Local 373, 232 NLRB 504 (1977), Iron
Workers Local 45, 232 NLRB 520 (1977), Iron Workers Local 45, 235
NLRB 211 (1978), Iron Workers Local 373, 235 NLRB 232 (1978), and
Iron Workers Local 480, 235 NLRB 1511 (1978)
cific findings by the Board of "independent and perva-
sive" violations that the court found were supported by
substantial evidence, and therefore made such a remedy
appropriate.
In accordance with the Board's remand, and the
court's opinion on which it was based,4 I have reexam-
ined the entire record, taken into consideration testimony
and documentary evidence that were not mentioned in
the earlier decision, but that the court views as signifi-
cant, made credibility findings based on the record as a
whole, as well as on my observation of the witnesses,
and, based thereon, make the following
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES
A The Issues: Backgrounds
These consolidated cases arose out of the operation of
hiring halls of two Iron Workers locals, Local 483 and
Local 11, during a period from February 10, 1976,
through April 19, 1977 The complaint alleges that these
Locals discriminated against 24 individuals by consistent-
ly preferring members of the Locals over them in refer-
rals to ironworker jobs in the areas of the Locals' juris-
diction. Both Locals are members of the District Council
of Northern New Jersey, International Association of
Bridge, Structural and Ornamental Iron Workers, which
during all relevant periods had a contract with the Build-
ing Contractors Association containing an exclusive
hiring hall provision, which provided, inter alga:
15.1 Every Employer bound hereby agrees that
he will recruit all employees covered hereby exclu-
sively through the several hiring halls operated by
the Union and/or its Locals. The said hiring halls
shall be operated by the Union and its Locals in a
non-discriminatory manner and on a non-discrimina-
tory basis in accordance with the said Decree in
U.S v Plumbers Local 24 et al Civil Action No.
444-71 etc. . . .
15.2 The said hiring halls shall be operated in ac-
cordance with the provisions of said decree men-
tioned in the preceding Article.
The decree that was incorporated by reference into
the District Council-Association contract was issued by
the United States District Court for the District of New
Jersey by consent, in a Title VII action brought against,
inter alia, the Northern New Jersey District Council of
Iron Workers and its five locals, including Respondents
herein. The decree provides that the referral system shall
4 In addition to the broad principles discussed above, the court also
adverted to a number of instances where no specific finding was made on
proffered testimony or documentary evidence These specifics will be dis-
cussed below, along with the complete reevaluation of the evidence re-
quired by the court's action
5 In stating the issues and background, and to some extent in stating
the facts, I have borrowed extensively from my earlier decision and the
court's decision as to positions and facts that are not controversal I have
also omitted from this supplemental decision the jurisdictional facts that
are not in issue and are contained in the earlier decision They are incor-
porated herein by reference
128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
be operated by the Locals on a "nondiscriminatory basis
without regard to membership or non-membership in the
Union, and there shall be no discrimination against any
person by reason of race or color." The consent decree,
however, permits the Unions to refer individuals out of
chronological order in the following instances: (1) the
contractor specifically requests an applicant, by name,
who had previously signed the referral list; (2) the appli-
cant is a trainee or apprentice within the geographical ju-
risdiction of the local union; (3) the contractor requests a
specific individual to serve as foreman; (4) senior experi-
enced applicants designated by the local union to act as
stewards; (5) minorities requested by contractors who are
obligated to meet affirmative action requirements im-
posed by any governmental agency; and (6) employer
requisitions communicated during other than normal re-
ferral hours or on Saturdays, Sundays, or holidays.
Within the context of the contract and the consent
decree, each Respondent had maintained referral regis-
ters, and a contractor's requisition register. Each appli-
cant for referral is required personally to sign the referral
registers, indicating thereon the date of signing, his union
affiliation, and the classifications for which he wishes to
be referred (and apparently deems himself qualified).
When a contractor calls to request workers (not specify-
ing names), the requisite number of those available with
the needed skills are called out by name ,by the business
agent, presumably in the order in which they signed the
register . Those called will then either go to the job or, if
absent when called, be so marked. At the end of the job
or, if marked absent, at any time thereafter, an applicant
re-signs the register in the same manner in order to be
eligible for another referrals An applicant calling in ad-
vance to inform the Local 483 business agent that he will
not be at the hiring hall on a particular date will have
the date marked on the register, so that his name will not
be called on that date, and also he will not lose his place
on the register.
When an applicant is referred out of turn (before an-
other applicant who signed the referral register first),
there would often appear in the remarks column of the
referral register a notation as to the reason for the early
referral. The reasons listed are "requested" (at times stat-
ing that there was a letter in the file indicating such re-
quest), "recalled" (Local 11 apparently used the phrase
"returned to job" to indicate recalled), and "steward."
Respondents introduced into evidence many letters from
contractors requesting specific individuals. In many in-
stances, including some where the remarks column indi-
cated that such a letter was on file, there was no such
letter introduced at the hearing. There are also notations
in the contractors requisition register to indicate specific
requests in many instances. None of the "recalled" or
"returned to job" stated reasons for early referral was
supported by any specific evidence; in each instance the
reason stated stands by itself as to these two categories.
The referral registers and the contractors requisition
registers for the two locals required to be maintained by
them pursuant to the consent decree are in evidence. In
6 Local 483 did not count 1-day jobs against an applicant, keeping him
in the same place on the register when that occurred
addition to this documentary ev4dence, there is testimony
from Respondents' officials relating to their practices and
recordkeeping generally in operating the hiring halls, as
well as specific testimony with respect to the particular
individual instances of alleged discrimination in referrals.
Finally, there is testimony from three of the alleged dis-
criminatees concerning statements made by union offi-
cials assertedly indicating a propensity by Respondents
to discriminate against the Charging Parties particularly
and nonmembers of the two locals generally.
Before turning to the documentary evidence, I consid-
er the testimony adduced by the General Counsel to
show animus against the discriminatees. Rudy Pavesi tes-
tified that he had a conversation with William Chico, at
the time Local 483's financial secretary, in June 1976, in
which Pavesi complained that his referrals were only
lasting a few days. Chico told Pavesi to stop complain-
ing, that "you guys are suing the Local and then you
expect to be taken care of," and that if Pavesi did not
like it, "to go back and shape my own hall in Canada."
Two other of the Charging Parties, Berghuys and Sulli-
van, corroborated this testimony. Chico, who had retired
by the time of the hearing and was in Florida, was not
called as a witness . Templeton testified that he heard
yelling, came out of his office, and told both Pavesi and
Chico to shut up.
John Jones testified that on March 21, 1977, he told
Templeton he had "been here since December 16, 1976,
and I haven't gotten any work." Templeton replied,
"Well, I have got to take care of my minorities and local
men." Templeton flatly denied that any such conversa-
tion took place.
Finally, Ralph Grisi testified that in November 1976,
Local Il's business agent, Wallace, responded to his
complaint about getting only a 1-day job by saying, "I
don't know what you guys think. I am the boss. If you
get into the local I am still the boss and I still give the
jobs out." Wallace was not asked about this conversa-
tion.
In view of the fact that Chico did not testify, I find
that he did make the remark attributed to him (with cor-
roboration from Berghuys and 'Sullivan) by Pavesi. As
recording secretary of the Local, any remark by him can
be attributed to the Local as an entity. However, as
Templeton was not present when the remark was made,
and in the absence of any testimony that Chico had any-
thing to do with referrals, I do not find that his remarks
demonstrated any predisposition by Templeton to dis-
criminate.
With, respect to the statement attributed to Templeton
by Jones, I credit Templeton's denial. With the thou-
sands of referrals, and hundreds of ironworkers, both
nonmembers and members of Local 483, using the hiring
hall, it seems highly unlikely that Business Agent Tem-
pleton would openly state that he was taking care of his
Local men at the expense of nonmembers, even if he
were. At that time, charges had already been filed
against Local 483, another reason for doubting that Tem-
pleton would have made a statement virtually admitting
that he discriminated in referrals. Indeed, Jones had
signed the referral register December 20, 1976 (not De-
IRON WORKERS LOCAL 483 (BUILDING CONTRACTORS)
cmber 16, as he testified), and was not called until
March 11, 1977, when he was absent, and was then re-
ferred on March 29, 1977. There is not a single instance
of anyone with Jones' job skills bypassing him, either ex-
plained or unexplained, during that period.
The statement attributed to Wallace by Grisi, which I
have no reason to doubt was made, particularly in the
absence of any denial by Wallace, does not appear to me
to be-more than a sharp response to Grisi's complaint.
Wallace was "the boss," and he did "give the jobs out."
The statement does not in any way establish that the jobs
were not given out fairly.
Whether in fact the jobs were given out in a nondis-
criminatory manner, or were dispensed by Business
Agents Templeton and Wallace with preference to mem-
bers of their Locals to the detriment of nonmembers,
must therefore be determined by reference to the referral
registers, the contractor's requisition register, and the tes-
timony of Templeton, Wallace, and various contractors
and employees called as witnesses.
The following reanalysis of the referral registers,
taking into account the contractor's requisition registers
where pertinent, differs from that made in my initial de-
cision in that I am now operating under different guide-
lines. Thus, as to each individually named discriminatee, ,
the findings below will include only those instances
when the individual was bypassed by a member of Local
483 or Local 11 without any explanation listed. Further-
more, it will be presumed that any member belonging to
a minority group has been referred legitimately, even by-
passing a named discrimmatee.
B. The Referral Registers
1. Local 483
a. Michael Cheselka
No member of Local 483 was preferred over Cheselka
without a listed explanation . As pointed out in my initial
decision, even those out-of-turn referrals with the listed
explanation that occurred after Cheselka 's signing the
register on July 26 , 1976 , took place on the day Cheselka
left the area or thereafter , so these bypassing could not
result in a violation being found as to him under any
standard.
b. Anthony Cocci
Cucci was bypassed only once during the relevant
period without any explanation stated. However, it is
clear on examination of the register that the Local 483
member preferred, W. E. Jones, was black.
c. Jack'Hesp+elt
The referral registers do not show any instance of
Jack Hespelt being bypassed by a member of Local 483
without a listed explanation.
d. Eitel Hespelt
Eitel Hespelt was bypassed once by a member of
Local 483. He had signed the register October 26, 1976,
and was not called for referral until December 14 (he
129
could not take that job because he had no car). R. Leon-
ard, a member of Local 483 who signed the register Oc-
tober 29, 1976, was referred to a job on December 13,
1976, with no explanation listed.
e. Russell Hrenenko
Hrenenko was bypassed by members of Local 483 four
times with no explanation listed on the referral register.
All four instances occurred in relation to his signing the
register May 4, 1976, and not being referred until June
17, 1976. In the meantime, J. Lauro, who signed May 5,
was referred June 14; W. Doherty, who signed May 7,
was referred June 15; K. Dalton, who signed May 24,
was also referred June 15; and E. Palzer, who signed
May 24, was referred June 16.7
f. George Janacek
Janacek was bypassed once without explanation by a
member of Local 483. He signed the register July 1,
1976, and was referred on August 3, 1976. Local 483
member, J. McKernan, who signed the register July 12,
1976, was referred July 29, 1976.
g. William Wharrie
There are no bypassings of Wharrie by Local 483
members that are not explained on the referral register
by "requested" or "recalled."
h. Rudy Pavesi
Pavesi was bypassed one time, with no explanation
listed on the referral register, by a Local 483 member.
He signed the register December 20, 1976, and was not
called until March 11, 1977. James Deaver, a member of
Local 483, signed the register December 30, 1976, and
was referred to a job on February 22, 1977.
i. Vito Christiano
There are no instances of Christiano being bypassed by
a member of Local 483 with no listed explanation.
j. Richard Clark
It is not clear whether Clark .was bypassed by a Local
483 member without any explanation. He signed the reg-
ister on August 4, 1976, as did Local 483 member E.
Cusick (but after Clark). Cusick was called for referral
on August 25, 1976, but marked absent, while Clark was
not referred until August 30. In view of Cusick having
been absent when called, it cannot be determined wheth-
er the call was for a position that Clark could have quali-
fied for, particularly as Cusick lists many more skills than
Clark. Accordingly, I find that the General Counsel has
not shown any actionable bypassing in this instance.
7 In these, as well as all other, bypass instances found herein, the job
qualifications were the same, relative to the particular referral, for the
discrimmatee and the member of Local 483 who was sent out of turn.
130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
k. Nicholas Philipchuk
There is no unexplained bypassing of Philipchuk by a
Local 483 member , other than by a John Romero, who
is listed as a minority (Puerto Rican).
1. Antonius Winkens
The' referral registers show only one instance of Win-
kens being bypassed without explanation by a 'member of
Local 483. This was by R. Leonard, who signed the reg-
ister on October 29, 1976, 2 days after Winkens, but was
referred to a job on December 13, 1976.8 Winkens was
absent, although called on December 14 and 15, and was
then sent to a job with the same company, Bronx Steel,
as Leonard had been, on December 20.
m. Henry Berghuys
Reexamination of the referral register shows that the
only bypassing of Berghuys by a Local 483 member
without any explanation given was by W. E. Jones, who
is a minority employee.
n. Patrick Tura
Turi was bypassed once by a Local 483 member with-
out any explanation. This was by E. Connell, who signed
the register on January 6, 1977, and was referred to a job
on April 6, 1977. Turi had signed the register on Decem-
ber 30, 1976, and was not referred until April 14, 1977.
o. John Jones
Jones was bypassed once without any explanation by a
member of Local 483. This was H. Muller, who signed
the register on August 19, 1976, and was referred on
September 28. Jones had signed on August 18, and was
not referred until September 30. In my initial decision, I
found two unexplained bypassings of Jones, but one was
by W. E. Jones, a minority employee.
p. Joseph Sullivan
Sullivan was bypassed without any explanation by one
member of Local 483, J. Toscano. Toscano signed the
register just after Sullivan on March 24, 1976, but was
referred on April 5, 3 days earlier than Sullivan.
q. Joe Lee Moore
There is no unexplained bypassing of Moore by any
member of Local 483.
r. Rudy DiGiorgio
DiGiorgio was never bypassed by a member of Local
483 without any explanation.
2. Local 11
a. Michael Fearns
Fearns was bypassed 12 times by members of Local
11, with no explanation appearing on the face of the re-
8 R. Leonard also bypassed Ertel Hespelt, as noted above, who signed
the register 2 days before Winkens.
ferral registers . Seven of those times, however, the
member involved was a minority employee. Of the other
five, Fearns signed the register April 30, 1976, and was
referred on May 25, 1976. G. Dunn, who signed the reg-
ister on May 3, was a member of Local 11, and was re-
ferred to a job on May 21. Fearns again signed the regis-
ter on June 7, 1976, and was called for referral on June
29, when he was absent, and referred on June 30. Local
11 member T. Hartnet, who also signed on June 7, but
after Fearns, was referred on June 28, and member Al
Hughes, who signed the register on June 10, was also re-
ferred on June 28. Fearns signed again on November 5,
and was called on November 23, when he was absent.
Two Local 11 members, who signed the register after
Fearns, were referred before him. They are W. Spears
(signed November 5, referred on November 22), and
Eugene Mikell (signed November 8, referred on Novem-
ber 22).
b. Ralph Grisi
Local 11's referral registers show that Grisi was by-
passed in referrals by members of Local 11, 24 times
with no explanation appearing on the face of the referral
registers . Five of this 24 are explained by specific re-
quests from contractors appearing in the contractor's
requisition registers. Another seven of them are of mi-
nority employees. The remaining 12 occurred in connec-
tion with 3 different signings of the register by Grisi. He
signed the register on March 8, 1976, and was referred to
a job on April 5. During that period, five Local 11 mem-
bers who signed after him were referred before him.
They are J. Hickey, J. Kenney, and R. Faucher, who all
signed on March 9, referred on March 29; J. Kenney, J.
Toal (signed on March 15, referred on March 30), and J.
Barker (signed on March 15, referred on March 29). Six
more members of Local 11 were referred ahead of Grisi
on the occasion of his signing the register on July 28,
1976, and being called for referral, but absent, on August
27. They are F. Jelinski and T. Lower, who both signed
the register on July 29 and were referred on August 17
J. Jordan (signed August 2, referred on August 23), J.
North (signed on August 3, referred on August 7, B.
Carnivale (signed on August 3, referred on August 20),
and T. Edgley (signed on August 3, referred on August
19). Finally, Local 11 member J. Pitterman, who signed
the register on May 24, 1977, was referred on May 27,
although Grisi, who signed the register on May 10, was
not referred until June 14.
c. Anthony Pontrelli
Pontrelli was bypassed by members of Local 11, 29
times without any explanation appearing on the face of
the referral registers. Twelve of these bypassings are in
fact supported by requests in the contractor's requisition
register. Another seven of them are of minority employ-
ees. The remaining 10 occurred in connection with 6 dif-
ferent signings of the register by Pontrelli. He signed on
December 30, 1975, and was referred on March 4, 1976.
A. Mell signed on January 7, 1976, and was referred on
February 12; R. McDonald signed on January 9 and was
referred on February 11. Pontrelli signed the register on
IRON WORKERS LOCAL 483 (BUILDING CONTRACTORS) 131
April 6, 1976, and was referred on April 28. J Baker Jr.
and B. Feeley both signed on April 7, and they were re-
ferred on April 23 and 26, respectively Pontrelli signed
on July 9, and was referred on July 29. R Caruso, who
signed on July 12, was referred on July 27. Pontrelli
signed on November 24, 1976, and was referred on De-
cember 22. L. Haws and T. A. Devine both signed after
Pontrelli on November 24, and they were referred on
December 14 and 15, respectively. L. Jenkins, who
signed on November 29, was referred on December 2.
Pontrelli signed on December 23, 1976, and was not
called until February 4, 1977, when he was absent. Tim
Allen signed on December 29, 1976, and was referred on
February 2, 1977. Finally, Pontrelli signed on February
23, 1977, and was referred on April 3 S. Durino, who
signed on March 14, was referred on March 29.
d Peter DeMaio
DeMaio was bypassed by members of Local 11, 24
times with no explanation shown on the face of the regis-
ter. Seven of these 24, however, are supported by specif-
ic requests shown in the contractor's requisition registers,
and nine more are of minority employees. The remaining
eight occurred in connection with four different signings
of the register by DeMaio He signed on February 3,
1976, and was referred on March 18. Four Local 11
members who signed after DeMaio were referred earlier;
T. Hartnet (signed on February 4, referred on March
12), J. Guyton (signed on February 10, referred on
March 4), E Boyle (signed on February 10, referred on
March 2), and G. Halpin Jr. (signed on February 17, re-
ferred on March 15). DeMaio signed the register on May
5, and was referred on May 27. R. Hartnet, who signed
after DeMaio on May 5 , was referred on May 25, and
G. Woodall, who signed on May 6, was also referred on
May 25. DeMaio signed on June 1, and was referred on
June 22. R. Dolan, who signed on June 7, was referred
on June 15. Finally, DeMaio signed the register on July
13, and was referred on August 4, R. Faucher, who
signed on July 14, was referred on July 28.
e. Joseph Tafro
Joseph Tafro was bypassed by Local 11 members 29
times with no explanation at all appearing on the face of
the referral registers. Eight of these 29 are explained by
specific requests from contractors appearing in the con-
tractor's requisition registers. Sixteen more are of minori-
ty employees. The remaining five occurred in connection
with four different signings of the register by J. Tafro.
He signed on January 15, 1976, and was referred to a job
on March 7. E. Boyle signed on February 10, and was
referred on March 2. J. Hickey signed on February 17,
and was referred on February 24. J. Tafro signed again
on June 4, 1976, and was referred on June 28. R. Dolan,
who signed on June 7, was referred on June 15. J. Tafro
signed on September 9, 1976, and was referred on Octo-
ber 4.9 F. Gassert, who signed after Tafro on September
9, was referred on September 28. Finally, J. Tafro signed
on December 14, 1976, and was not referred until Febru-
ary 24, 1977. J. Pitterman , who signed on January 7,
1977, was referred on February 23.
f. Victor Tafro
Victor Tafro was bypassed 14 times by Local 11 mem-
bers with no explanation appearing on the face of the
registers. Five of these are explained by specific requests
appearing in the contractor's requisition registers. Six
others were of minority employees. Of the remaining
three, two were on the occasion of Victor Tafro having
signed the register on January 3, 1976, and being re-
ferred on March 10, 1976. A Hess, who signed on Janu-
ary 29, was referred on March 8, and E. Boyle,' o who
signed on February 10, was referred on March 2 The
third occasion with Tafro having signed on June 6 and
being referred on July 2, saw T. Opanowicz signing on
June 16, and being referred on June 29
3. Summation
Local 483's referral registers show (adding up the fig-
ures set forth above) that its members bypassed only 8 of
the 18 named alleged discriminatees, with no explanation.
These eight were bypassed a total of 11 times over the
18-month period from December 1975 to June 1977. In
addition, the named individuals were bypassed a total of
approximately 70 times with "recall" listed, and a total
of about 50 times with "requested" listed
Local I I's registers show 43 bypasses of the six named
individual discriminatees with no explanation at all in the
remarks column of the referral registers during the same
period of time. In addition, "returned" and "requested,"
with no letter in the file or indication of a letter in the
file on the face of the registers, were given as explana-
tion for bypassing of these six by members of Local It.
C. Discussion
In view of the court's decision herein, none of the by-
passings that were explained in the referral registers,
even though the explanations were not corroborated in
any way, can individually be viewed as violating the
Act. However, the court, in discussing the earlier Board
cases that it enforced, adverts to the findings in those
cases that there was an enormous disparity between
member and nonmember referrals based on categories
such as recalled and requested, and that such findings,
based on substantial evidence, were sufficient to justify
finding violations in the absence of supporting evidence
proffered by the Respondents in those cases. It is there-
fore necessary to reexamine the facts of the instant case
against the backdrop of the facts in the earlier cases to
determine whether the same "inescapable inference of
deceit" emerges in this case.
In the first of the five cases granted enforcement by
the court, Iron Workers Local 373, 232 NLRB 504 (1977),
the administrative law judge found, with Board concur-
rence, a huge disparity between the use of "excepted"
° Dolan also bypassed DeMaio, as noted above, who had signed earlier
than Joseph Tafro '
10 Boyle also bypassed Joseph Tafro, as noted above , who signed the
register after Victor Tafro
132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
categories for members of the two Respondent unions as
against nonmembers, in addition to many completely un-
explained bypassings of nonmembers by members. For
example, Local 373 marked 199 of the 200 assignments of
its members during a particular period with explanations
such as steward, foreman, or requested, and this Re-
spondent used the "steward" title 1048 times for its mem-
bers, and only 383 times for nonmembers, although there
were 5210 signings of the register by nonmembers com-
pared with 2410 by members. During another period, 75
Local 373 members were called "foreman," and all but 2
were referred to work out of chronological order. Of the
22 nonmembers marked foreman, only 4 were referred
out of chronological order. During that same period,
most of the applicants marked "steward" who were
members, received out-of-order preferential assignments
(92 out of 93), but only 3 of the 69 nonmembers marked
"steward" received out-of-turn assignments.
Three of the other four cases show much the same
kind of pattern. Thus in Iron Workers Local 45, 235
NLRB 211, 212 (1978), the Board found that the Union
"continuously and systematically designated its own
members as falling within excepted categories under the
consent decree and referred them out of turn almost to
the point of so designating each and every member re-
ferred. Although nonmembers signatories significantly
outnumbered members in the referral books, they were
seldom accorded preferential referral classifications and
were rarely referred to jobs out of chronological order
even if they were classified within excepted categories in
the books." Similarly, in Iron Workers Local 373, 235
NLRB 232 (1978), over 82 percent of the 594 referrals of
Local members were made out of chronological order,
while only a comparative few of the 885 referrals of non-
members were made out of order. And the union re-
ferred its own members as shop stewards 207 times, with
almost all of those referrals out of chronological order,
while designating nonmembers as stewards only 37 times,
and referring even those so designated generally in
chronological order.
In marked contrast to the figures shown in all five
cases are the statistics relating to Local 483 in the instant
case. Thus, out of more than 2000 referrals made during
the period covered by the complaint herein, designations
such as "requested" and "recalled" to justify out-of-order
designations were used only a little more than 100 times
for members, and almost the same number of times for
nonmembers.
Furthermore, examination of Local 483's referral regis-
ters shows that many applicants from the same locals as
the named discriminatees bypassed Local 483 members,
as well as nonmembers of that Local, with designations
such as "recalled" and "requested." For example, Che-
selka, Clark, and Berghuys were all members of Local
399, a Camden, New Jersey Local of the Iron Workers. I
note approximately 27 bypassings by other members of
Local 399 of registrants who had signed the referral reg-
isters before them. Pavesi is a member of Local 823, out
of Montreal. Five members of the Local bypassed mem-
bers and nonmembers of Local 483. John Jones is a
member of Local 158, out of Binghamton, New York.
The referral registers show eight bypassings by members
of that Local of both members and nonmembers of Local
483. The two Hespelts were both members of Local 170.
The referral registers show at least 12 members of that
Local bypassing members of Local 483. Sullivan was a
member of Local 15; the registers show three referrals of
Local 15 members with uncorroborated explanations.
And Christiano was a member of Local 711, and the reg-
isters show seven referrals of Local 711 members with
uncorroborated explanations. Finally, the referral regis-
ters of Local 483 show that members of at least 12 other
Iron Worker Locals (that is, locals to which none of the
Charging Parties belonged, and locals that were not Re-
spondents in the other five Board cases), received out-of-
turn referrals on many occasions.
In view of all the foregoing facts, and the admonition
of the Third Circuit that only "overwhelming numerical
and statistical evidence" suffices "to make particularized
proof of each instance of discriminatory referral imprac-
tical or unnecessary," I cannot conclude that such a
showing has been made with respect to Local 483 here.
Nor do I conclude that the 11 unexplained instances
were 8 of the 18 alleged discriminatees were bypassed by
members of Local 483 without any explanation violated
the Act. So few instances out of thousands of referrals
for 1-1/2 years are as likely to have been the result of
error as of deliberate discrimination. Indeed, the referral
registers show a fair number of instances where the
named discriminatees were referred ahead of Local 483
members who had signed the register before them, and
with no explanation at all in the remarks column of the
registers. Local 483 member Ghondt, for example, signed
the register December 26, 1975, and was not referred
until February 24, 1976. William Wharrie, who signed
the register on December 29, 1976, was referred on Feb-
ruary 12, 1976. Local 483 member H. Ferger signed the
register on January 2, 1976, and was not referred until-
March 24. Three of the named discriminatees who signed
after Ferger were referred ahead of him without explana-
tion: Hrenenko (signed on January 7, referred on March
9), DiGiorgio (signed on January 13, referred on March
15), and Janacek (signed on January 15, referred on
March 8). Local 483 member Tom Cleeland signed the
register on September 23, 1976, and was referred on No-
vember 15. Vito Christiano signed on October 24, and
was referred on November 8. Local 483 member Jim
Pitts signed the register on August 13, 1976, and was re-
ferred on October 4. John Jones, who signed on August
18, was referred on September 30. In all these instances,
the job classifications to which the nonmembers were re-
ferred were the same as ones possessed by the Local 483
members bypassed. I doubt that anyone would argue that
these bypassings violated the Act as to the Local 483
members involved. Yet, the facial discrimination shown
by the registers in favor of the Charging Parties against
members of Local 483 is of about the same magnitude as
that similarly shown against the Charging Parties. In
sum, I now conclude that the General Counsel has failed
to prove any violations of the Act by Local 483.
A very different picture emerges with respect to Local
11, as shown by its referral registers. For the roughly 18-
month period between November 1975 and March 1977,
IRON WORKERS LOCAL 483 (BUILDING CONTRACTORS) 133
the registers show a total of 43 instances where the six
named discriminatees were bypassed by Local 11 mem-
bers with no explanation at all appearing either on the
face of the registers or the contractor 's requisition regis-
ters. And only one referral during that entire period, that
of Pontrelli on November 3, 1976, is on the face of the
register a bypassing by a named discriminatee of Local
11 members. In this one instance , Pontrelli had signed
the register on October 18. (Two members of Local 11,
Hubbard , who also signed the register on October 18,
but before Pontrelli, was referred on November 7, and
Simpkins, who signed on October 14, was referred on
November 1.) Forty-three unexplained bypassings going
in one direction and only 1 in the other direction clearly
serve to satisfy the test laid down by the court; this sta-
tistical contrast is of more than sufficient magnitude, cou-
pled with the absence of any explanation, to "compel the
conclusion that the reason was union membership." I
find, accordingly, that Local 11 violated Section 8(b)(2)
and (1)(A) of the Act with respect to the six named dis-
criminatees.
Whether the Local 11 figures in this case justify impo-
sition of the "similarly situated " remedy is a close ques-
tion in view of the court 's opinion.
There were approximately 5600 signings of the Local
11 referral registers from November 1975 to March 1977
Of these, 1672 were by members of Local 11, the rest, of
course, 3912 , by members of other locals . "Recalled" (or
"returned to work") designations in the remarks column
of the registers show 224 for Local 11 members and 102
for others . "Requested" designations total about 77 for
Local 11 members and 91 for others. Thus, these two ex-
ceptions were used 301 times for Local 11 members out
of 1672 registrations, and 179 times out of 3912 for all
others. I note also that of the non -Local 11 registrants,
many more were from Local 399 than from any other
single group . During the period between September 13,
1976, and June 15, 1977, for example, 527 registrations
out of a total of 2400 were of Local 399 members
During this period, the Local 399 registrants had about
24 "returned" and 24 "requested" special designations.
The ratio of the use of these two designations for
Local 11 members was 1 for each 5 . 5 registrations, of all
other registrants , 1 out of 21 . 8, and of Local 399 registra-
tions during the sample period 1 in 21 In sum , special
designations were accorded to Local 11 registrants about
four times as often as to members of other locals. It is
difficult to make exact comparisons with each of the
other five cases, as the findings in those cases were often
generalized language. The specific violations here found
do in and of themselves tend to support a similarly situ-
ated remedy by their gross disproportion alone. But the
use of special designations for Local 11 members was
still relatively sparse as against the use of such designa-
tions in four of the cases involving Iron Worker locals
that have been discussed As I pointed out earlier, and
the court noted in its opinion , those cases involved
"grossly disproportionate referral statistics ." In Iron
Workers Local 373, 232 NLRB 504, the most flagrant of
the cases in this respect , the Board found that the "Re-
spondents continuously and systematically designated
their own members as falling within excepted categories
under the consent decree and referred them out of turn,
almost to the point of so designating each and every
member referred . Although nonmember signatories sig-
nificantly outnumbered members in the referral books,
they were seldom accorded preferential referral classifi-
cations and were rarely referred to jobs out of chrono-
logical order even if they were classified within excepted
categories in the books." In Iron Workers Local 45, 232
NLRB 520, 521, the Board found that the Respondent
Union had a "continuing pattern of designating its own
members as falling within excepted categories under the
consent decree in numbers grossly disproportionate to
those of nonmembers . ." In Iron Workers Local 45,
235 NLRB 211, 212, the Board found again that the Re-
spondent Local "continuously and systematically desig-
nated its own members as falling within excepted catego-
ries under the consent decree and referred them out of
turn almost to the point of so designating each and every
member referred . Although nonmember signatories sig-
nificantly outnumbered members in the referral books,
they were seldom accorded preferential referral classifi-
cations and were rarely referred to jobs out of chrono-
logical order even if they were classified within excepted
categories in the books." And in Iron Workers Local 273,
235 NLRB 232, 233, the Board's finding was identical to
that in the immediately previous case, and was based on
82 percent of the union 's members being referred out of
chronological order under excepted categories , against
very rare referrals of nonmembers out of order.
The facts of the instant case with respect to Local 11
thus do not even approximate those of four of the cases
in terms of the differences between the Respondent
Union members and others in the use of excepted catego-
ries. The disproportion here does, however, come close
to that in the fifth case, Iron Workers Local 480, 235
NLRB 1511. There, the Respondent Local justified 1 in
every 3.04 local members on the basis of the steward ex-
ception , while using that designation for 1 in 16.53 of
nonmember referrals , a ratio of 1 to 5.37. Here, as
shown, Respondent Local justified about four times as
many referrals of Local 11 members by using the desig-
nations requested and returned to work as it did referrals
of nonmembers.
Other statistics revealed by the referral registers are of
significance in this respect . Thus, "returned to job" and
"requested" were used more than 140 times to justify
out-of-turn referrals of Local 11 members out of turn
ahead of the six Charging Parties As the six taken to-
gether registered (not counting those registrations that
never resulted in a referral because the individual was
marked absent) less than 50 times, this number is remark-
ably higher relative to the total use of excepted designa-
tions.
Although the total picture emerging from examination
of the referral registers does not show the same gross
disproportions in the use of special designations for
Local 11 members as in the other cases, and somewhat
less than in Iron Workers Local 480, I believe it is signifi-
cant that each category was used substantially more for
Local 11 members, in proportion to number of registra-
tions, than for nonmembers . Recalled alone, was used
134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
five times as often for Local 11 members; requested,
twice as often; and stewards, almost twice as often.
The vast difference in the number of completely unex-
plained out-of-turn referrals of Local 11 members as
against only one unexplained out-of-turn referral of a
named discriminatee against union members, serves to
make the difference between the use of uncorroborated
explanations for Local 11 members generally and for
members generally perhaps more significant than the raw
numbers alone would demonstrate. The inference is thus
warranted, from all these figures taken together, that
these designations were in fact utilized to prefer mem-
bers over nonmembers. I conclude, accordingly, that
Local 11 has violated the Act both as to the named dis-
criminatees, as heretofore found, and to nonmembers
"similarly situated," as alleged in the complaint.
The Third Circuit at one point (672 F.2d at 1167)
states that cases cited to it by the Board do not justify
"postponing the identification of the victims of the al-
leged discrimination" to the "compliance stage" of the
proceeding. I do not take this as precluding the Board
from ever doing so, because the court goes on to suggest
that this remedy could be applied if there were specific
findings of "widespread and pervasive violations." Fur-
thermore, in enforcing the five other decisions, the 1court
did affirm precisely such a "postponement" of the identi-
fication of the victims of discrimination in all five of
those cases, including in the one, Iron Workers Local 480,
most closely resembling this in terms of the disparities
between the treatment accorded members as against non-
members.
Accordingly, I find that Respondent Local 11 violated
Section 8(b)(1)(A) and (2) of the Act by discriminating in
the operation of its hiring hall by preferring its members
to nonmembers in making referrals.
On the basis of the foregoing findings of fact, and on
the entire record, I make the following
CONCLUSIONS OF LAW
1. By attempting to cause and by in fact causing the
employer-members of the Building Contractors Associa-
tion of New Jersey to discriminate against the six indi-
vidual ironworkers named in the complaint and other as
yet unidentified ironworkers, in violation of Section
8(a)(3) of the Act, the Respondent International Associa-
tion of Bridge, Structural and Ornamental Iron Workers
Local 11, AFL-CIO has violated and is violating Sec-
tions 8(a)(2) and 8(b)(1)(A) of the Act.
2. Respondent International Association of Bridge,
Structural and Ornamental Iron Workers Local 483,
AFL-CIO has not violated the Act in any respect.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
The remedy for Respondent Local 11's unfair labor
practices is the same as recommended by me in the initial
decision, and I incorporate by reference that section of
the initial decision insofar as it pertains to Local 11.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, International Association of Bridge,
Structural and Ornamental Iron Workers , Local 11,
AFL-CIO , its officers, agents, and representatives, shall
1. Cease and desist from
(a) Causing or attempting to cause the separate em-
ployer-members of Building Contractors Association of
New Jersey , or any other employer, to discriminate
against any of the following employees
Victor Tafro
Joseph Tafro
Peter De Maio
Michael J. Fearns
Anthony Pontrelli
Ralph Grisi
or any other employees, in violation of Section 8(a)(3) of
the National Labor Relations Act, because of their lack
of membership in Local 11.
(b) In any other manner restraining or coercing, em-
ployees in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Keep and retain for a period of 2 years from the
date of this Order permanent written records of its hiring
and referral operations that will be adequate to disclose
fully the basis on which each referral is made and, on the
request of the Regional Director for Region 22, or his
agents, make available for inspection, at all reasonable
times, any records relating in any way to the hiring and
referral system.
(b) Submit four quarterly reports to the Regional Di-
rector, due 10 days after the close of each calendar quar-
ter subsequent to the issuance of this decision, concern-
ing the employment of the above-named employees and
other nonmember applicants subsequently found to have
been similarly situated. Such report shall include the date
and number of job applicants made to Respondent the
date and number of actual job referrals by Respondent,
and the length of such employment during such quarter.
(c) Place the referral registers, for a period of 2 years,
on a table or ledge in the hiring hall for easy access and
inspection by the applicants as a matter of right, on com-
pletion of each day's entries in such registers.
(d) Make whole each of the above-named employees,
and all other nonmember applicants who were similarly
situated, for any loss of earnings suffered by reason of
the discrimination practiced against them, in the manner
set forth in the remedy section of this decision.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
records, reports, work lists, and other documents neces-
' 1 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions , and recommended
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 pur-
poses
IRON WORKERS LOCAL 483 (BUILDING CONTRACTORS) 135
nary to analyze the amount of backpay due under the
terms of this Order.
(f) Post at all places where notices to employees, appli-
cants for referral, and members are posted copies of the
attached notice marked "Appendix." i 2 Copies of the
notice, on forms provided by the Regional Director for
Region 22, after being signed by the Local's authorized
representative, shall be posted by it immediately upon re-
ceipt and maintained for 60 consecutive days in conspic-
uous places including all places where notices to mem-
bers are customarily posted. Reasonable steps shall be
taken by the Union to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(g) Cause, at its expense, the attached notice marked
"Appendix" i 3 to be printed in a newspaper of general
circulation within its jurisdictional area.
(h) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent Local 11 has taken to comply.
B. The complaint against International Association of
Bridge, Structural and Ornamental Iron Workers, Local
483, AFL-CIO is dismissed.
12 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 Nation-
al 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 "
13 See fn 12, supra
SECOND SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
MELVIN J. WELLS, Administrative Law Judge. On 3
March 1980, the Board issued a Decision and Order in
this proceeding, affirming my findings that Respondents,
Locals 483 and 11, of the International Association of
Bridge, Structural and Ornamental Iron Workers, AFL-
CIO, violated Sections 8(b)(1)(A) and 8(b)(2) of the Act
by consistently preferring their members over non-
members in hiring hall referrals to ironworker jobs in the
areas of their jurisdiction. Thereafter, on 9 February
1982, the United States Court of Appeals for the Third
Circuit denied the Board's petition for enforcement, and
remanded the case to the Board for such further pro-
ceedings and more particularized findings of fact as the
Board might deem appropriate in accordance with the
court's opinion. On 8 July 1982 the Board remanded the
case to me to reconsider my decision in light of the
court's opinion. On 23 March 1984, 1 issued a supplemen-
tal decision finding that Local 11 discriminated against
nonmembers in the operation of its hiring hall, but that
Local 483 did not.
On 1 October 1984 the Board again remanded the case
to me because it appeared "that the administrative law
judge failed, contrary to the court's direction, to consid-
er, or explain why he did not consider, either Local I I's
Contractor Requisition Registers or the 'substantial live
testimony' of Local II's officials regarding the referral
system in finding that Local 11 had engaged in a system-
atic pattern of discrimination against nonmembers." The
Board "also directs [my] attention to its decision in the
first Iron Workers case (Iron Workers 373, 232 NLRB
504, 512-515 (1972)), where it held, contrary to his find-
ings in the supplemental decision here, that in the ab-
sence of any supporting testimonial or documentary evi-
dence whatsoever, it may not be presumed that the out-
of-turn referrals of minority members were in fact 'mi-
nority requests' under the Title VII consent decree." In
this latter connection, the Board also adverts to Iron
Workers Local 45, 235 NLRB 211, 222 fn. 7 (1978), in
which the Board concluded that "out-of-turn referrals of
black members were valid referrals under the consent
decree where the Respondent's Union did make such a
contection during the hearing ." (Order Remanding, p. 3,
fn 4.)
In sum, the Board 's remand order requires that I con-
sider: (1) Local It's Contractors Requisition Register; (2)
the "substantial live testimony" of Local 11's officials re-
garding the referral register; and (3) the question of the
validity of out-of-turn referrals of minority members. All
other findings and conclusions in the supplemental deci-
sion, except to the extent that they might require modifi-
cation by my findings on the three aspects of the
remand , are not in question at this point.
As to my asserted failure "to consider Local 11's Con-
tractors Requisition Registers," I call the Board's atten-
tion to the following portion of the supplemental deci-
sion . In section I,A paragraph 13, I stated. "The follow-
ing reanalysis of the referral registers , taking into account
the contractor's requisition registers where pertinent . . . .
(Emphasis added.) I followed up this statement (which
standing alone might be viewed as a somewhat self-serv-
ing generality) by specifically adverting to the contrac-
tor's registers , and their effect on the earlier findings
made in the original decision. Thus, I stated with respect
to alleged discriminatee Ralph Grisi that "Five of this 24
[bypassing by Local 11 members with no explanation]
are explained by specific requests from contractors ap-
pearing in the contractor 's requisition registers" sec.
I,B,2,d) As to Anthony Pontrelli, I stated that "Twelve
of these bypassings are in fact supported by requests in
the contractor's requisition register" sec. I,B,2,C. As to
Peter DeMaio, I stated, "Seven of these 24 [bypassings
without explanation], however, are supported by specific
requests shown in the contractor's requisition register"
sec. I,B,2,d As to Joseph Tafro, I stated, "Eight of these
29 [bypassings without explanation] are explained by spe-
cific requests from contractors appearing in the contrac-
tor's requisition registers ." As to Victor Tafro, I stated,
"Five of these [bypassings without explanation] are ex-
plained by specific requests appearing in the contractor's
requisition registers" sec. I,B,2,f) I made no reference to
the contractor's requisition registers with respect to Mi-
chael Fearns, the last of the six allegedly discriminated
against in referrals by Local It, because none of the un-
explained bypassings of Fearns were covered by these
registers.
If the above recital is not sufficient to convince the
Board that I have, indeed, considered the contractor's
requisition registers , I can do no more than acid that I
have rechecked the referral registers of Local 11 against
136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the requisition registers and do not find any additional
basis for altering the findings made in the supplemental
decision. It is true that there are hundreds of pages in
these registers, and that often the names written in the
contractor's requisition registers are difficult to decipher.
In other words, I cannot guarantee the accuracy of all
my computations. But I cannot believe that there is any
discrepancy of sufficient magnitude to change the ulti-
mate conclusions.
In the supplemental decision, I exclude from consider-
ation as unlawful bypassing all situations where the
member of Local 11 referred out of turn was identified
as belonging to a minority group, stating that "it will be
presumed that any member belonging to a minority
group has been referred legitimately, even though by-
passing a named discriminatee" sec. I,A,par.13). The
Board, as noted earlier, does not regard the mere fact
that an out-of-turn referral was of a minority member as
presumptively valid. Only where supported by testimoni-
al or documentary evidence, or where a union "did make
such a contention during the hearing," does the Board
regard these referrals as legitimate. No such contention
was directly advanced by Local 11 at the hearing. Re-
spondents, in their brief and exceptions to the Board
with respect to my original decision, did advert to the
minority out-of-turn referrals as justified by the consent
decree, but that does not appear to be sufficient to satisfy
the Board's requirement.
With respect to Local 11, I excluded from consider-
ation, in the supplemental' decision, 52 bypassings be-
cause they were by identified minority members of Local
11. The breakdown of the 52 is as follows: Fearns, 7 (out
of 12); Grisi, 7 (out of 24, less the 5 justified by the req-
uisition registers); Pontrelli, 7 (out of 29, less the 12 justi-
fied by the requisition registers); DeMaio, 9 (out of 24,
less the 7 justified by the requisition registers); and V.
Tafro, 6 (out 14, less the 5 justified by the requisition
registers). Some of the exclusions in the supplemental de-
cision because they were on the contractor's requisition
registers were in fact also members of minority groups.
They remain, of course, excluded on the first basis. And
reexamination of those registers does not disclose that
any of the 52 was also on the contractor's requisition
registers. As I found in the supplemental decision that
Local 11 violated the Act without taking into account
the bypassing by minority members, the addition of 52 to
the total of 43 bypassings serves only to bolster that con-
clusion, and the conclusion that the remedy should apply
to nonmembers similarly situated to the 6 named discri-
minatees.
There remains for consideration, with respect to Local
11, the "substantial live testimony" of Robert Wallace,
Local 11's business agent, and the only official of that
Respondent who testified at the hearing. He testified
generally to the operation of Local 11's hiring hall, and
to the various exceptions in the consent decree that per-
mitted out-of-turn referrals, as well as to the practice of
some contractors of calling employees directly rather
than going through the Union's hiring hall. He also testi-
fied as to what type of entries were made in Local Il's
referral registers and the contractor's requisition regis-
ters. He never specifically stated that he never referred
employees out of order who did not fall within the listed
exceptions. i Wallace was not asked to explain, nor did
he, any specific out-of-turn referrals of Local 11 men
ahead of the six alleged named discriminatees that did
not have any apparent justification either in the remarks
column of the referral register, or in the contractor's req-
uisition registers. In these circumstances, there is nothing
in his testimony to "discredit" vis-a-vis the documentary
evidence establishing discrimination against the six discri-
minatees. Even if Wallace's testimony were to be read as
a specific denial of any discrimination, in view of the sta-
tistical evidence of the six discriminatees having been
"disfavored" on at least 43 occasions (95 counting the
minority members of Local 11 who bypassed them), and
favored only once, such testimony would perforce have
to be discredited.
On the basis of the foregoing findings, as well as those
findings and conclusions in the supplemental decision in
this case, which are incorporated herein by, reference,2
and on the entire record, I make the following
CONCLUSIONS OF LAW'
1. By attempting to cause and by in fact causing the
employer-members of the Building Contractors Associa-
tion of New Jersey to discriminate against the six indi-
vidual ironworkers named in the complaint and other as
yet unidentified ironworkers , in violation of Section
8(a)(3) of the Act, the Respondent , Local 11, Interna-
tional Association of Bridge, Structural and Ornamental
Iron Workers has violated and is violating Section
8(b)(2) and (1)(A) of the Act.
2. The Respondent, Local 483, International Associa-
tion of Bridge, Structural and Ornamental Iron Workers
has not violated the Act in any respect.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
The remedy for Respondent Local 11's unfair labor
practices is the same as recommended by me in the initial
decision, and I incorporate by reference that section of
the initial decision insofar as it pertains to Local 11.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed3
ORDER
A. Respondent International Association of Bridge,
Structural and Ornamental Iron Workers, Local 11,
AFL-CIO , its officers, agents, and representatives, shall
1. Cease and desist from
1 Other than to indicate that "late calls," calls late in the day from a
contractor, might result in sending out an employee still sitting around
the union office who otherwise might not be entitled to referral.
3 The addition of the 52 minority out-of-turn referrals is the only
change from the findings and conclusions therein.
3 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses
IRON WORKERS LOCAL 483 (BUILDING CONTRACTORS) 137
(a) Causing or attempting to cause the separate em-
ployer-members of Building Contractors Association of
New Jersey, or any other employer, to discriminate
against any of the following employees
Victor Tafro Michael J. Fearns
Joseph Tafro Anthony Pontrelli
Peter DeMaio Ralph Grisi
or any other employees, in violation of Section 8(a)(3) of
the National Labor Relations Act, because of their lack
of membership in Local 11.
(b) In any other manner restraining or coercing em-
ployees or applicants for employment in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the purposes of the Act.
(a) Keep and retain for a period of 2 years from the
date of this decision permanent written records of its
hiring and referral operations that will be adequate to
disclose fully the basis on which each referral is made
and on the request of the Regional Director for Region
22, or his agents, make available for inspection, at all rea-
sonable times, any records relating in any way to the
hiring and referral system.
(b) Submit four quarterly reports to the Regional Di-
rector, due 10 days after the close of each calendar quar-
ter subsequent to the issuance of this decision, concern-
ing the employment of the above-named employees and
other nonmembers, applicants subsequently found to
have been similarly situated. Such report shall include
the date and number of job applicants made to Respond-
ent, the date and number of actual job referrals by Re-
spondent, and the length of such employment during
such quarter.
(c) Place the referral registers, for a period of 2 years,
on a table or ledge in the hiring hall for easy access and
inspection by the applicants as a matter of right, on com-
pletion of each day's entries in such registers.
(d) Make whole each of the above-named employees,
and all other nonmember applicants who were similarly
situated, for any loss of earnings suffered by reason of
the discrimination practiced against them in the manner
set forth in the remedy section of this decision.
(e) Preserve and, on request, make available to the
Board or its agents, for examination and copying, all
records, reports, work lists and other documents neces-
sary to analyze the amount of backpay due under the
terms of this Order.
(f) Post at all places where notices to employees, appli-
cants for referral, and members are posted copies of the
attached notice marked "Appendix."4 Copies of the
notice, on forms provided by the Regional Director for
Region 22, after being signed by the Local's authorized
representative, shall be posted by it immediately upon re-
ceipt and maintained for 60 consecutive days in conspic-
uous places including all places where notices to mem-
bers are customarily posted. Reasonable steps shall be
taken by the Union to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(g) Cause, at its expense, the attached notice marked
"Appendix"5 to be printed in a newspaper of general cir-
culation within its jurisdictional area.
(h) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent Local 11 has taken to comply.
IT IS FURTHER RECOMMENDED that the complaint
against International Association of Bridge, Structural
and Ornamental Iron Workers, Local 483 is dismissed.
4 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 Nation-
al 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."
5 See fn. 4, supra.