Iron Workers Local 601 (Papco, Inc.)

National Labor Relations Board - Board Decisions

Jun 10, 1992

307 N.L.R.B. 843 (N.L.R.B. 1992)

843
307 NLRB No. 136
IRON WORKERS LOCAL 601 (PAPCO, INC.)
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 Iron Workers Local 601 (Papco, Inc.), 276 NLRB 1273.
3 All dates hereafter are in 1989, unless otherwise noted.
4 The Employer’s Georgetown project represented a major employ-
ment opportunity for the Respondent’s members because at the time
there was only one union employer which had an ongoing project
in the Charleston area.
5 The record shows that in 1975 the Employer terminated Brown
for fighting with a supervisor during a party at the supervisor’s
home. The Employer then informed the Union that it would not re-
hire Brown. Nevertheless, the Employer subsequently reemployed
Brown from November 14 until December 18, 1978, when there was
a reduction in force causing his layoff. Brown again worked for the
Employer, this time as a foreman, from November 19, 1979, until
he was laid off on April 10, 1980. It was McMahan, acting on the
Respondent’s behalf, who the Board essentially found in the prior
case illegally refreshed the Employer’s recollection of its 1975 ban
on Brown’s hire and discriminatorily prevented Brown’s referral to
the Employer in 1984. However, based on statements the Employer
made to it, the Respondent claims that the Employer never lifted its
ban and that Brown’s reemployment by the Employer subsequent to
1975 had been a mistake.
International Association of Bridge, Structural and
Ornamental Iron Workers, AFL–CIO, Local
601 (Papco, Inc.) and James L. Brown, Jr.
Cases 11–CB–1772 and 11–CB–1793
June 10, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On June 28, 1991, Administrative Law Judge Robert
G. Romano issued the attached decision. The Respond-
ent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this case to a three-member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions, to modify his remedy, and to adopt the rec-
ommended Order as modified.
We adopt the judge’s finding that the Respondent
violated Section 8(b)(1)(A) and (2) of the Act by fail-
ing and refusing to refer the Charging Party, James L.
Brown, Jr., to employment with Papco, Incorporated
(the Employer) on April 3, 1989. Contrary to the
judge, however, we do not find that Brown is entitled
to full backpay here. The record shows that the Em-
ployer, pursuant to its contractual right, definitively in-
formed the Respondent in mid-April 1989 that it
would not employ Brown. As explained below, we ter-
minate the Respondent’s backpay obligation as of that
time, when it became clear that Brown’s referral to the
Employer would be an act of futility.
Brown is a member of the Respondent and has
sought employment through its hiring hall for many
years. On September 30, 1985, the Board issued a de-
cision2 finding, as relevant here, that the Respondent
violated Section 8(b)(1)(A) by the conduct of its busi-
ness agent, Herman McMahan, in refusing to refer
Brown for employment with Papco because of
Brown’s internal union activities. Thereafter,
McMahan’s former brother-in-law, Johnny Phillips, be-
came the Respondent’s business manager. Despite
Brown’s repeated and explicit objections, Phillips
maintained on the Respondent’s bulletin board the re-
medial notice from Brown’s earlier case for well over
a year beyond the normal 60-day posting period or-
dered by the Board. The judge found that Phillips did
this so that Brown’s fellow union members would be
aware that Brown had taken legal action against the
Respondent.
In 1989,3 the International Union appointed Billy
Joe Walker to serve as the Respondent’s administrator
because of purported financial irregularities. After as-
suming control of the Respondent, Walker terminated
Phillips and all the Respondent’s officers on March 20.
Based on Walker’s testimony, the judge found that
Walker kept Phillips on the payroll for a week or 10
days beyond March 20 to ensure a smooth transition
in leadership.
On March 30, the Employer and the Respondent
signed a project agreement covering the Employer’s
work on a papermill in Georgetown, South Carolina. It
appears that this was the Employer’s first project with-
in the Respondent’s territorial jurisdiction since
McMahan’s 1984 refusal to refer Brown for employ-
ment with the Employer, a refusal that the Board in
the prior case found was discriminatory.4 The Em-
ployer immediately requested that Phillips, whom the
judge found was still on the Respondent’s payroll,
serve as its foreman on the Georgetown project.
Later on March 30, Phillips told Walker that he
‘‘better’’ review Brown’s office file before referring
him for work with the Employer. When Walker asked
if there was a problem, Phillips said that the Employer
had designated Brown as ineligible for rehire and that
Walker would create ‘‘big problems’’ if he attempted
to refer Brown for work. Phillips did not inform Walk-
er about the Board’s finding in 1985 that the Respond-
ent had discriminatorily failed to refer Brown to the
Employer. Acting on Phillips’ information, Walker
then reviewed the file that the Respondent kept on
Brown and found a letter from the Employer, dated
December 22, 1984, stating that Brown was ineligible
for rehire because of an incident that had occurred in
1975.5 That December 1984 letter, however, had re-
sulted from McMahan’s earlier discriminatorily moti-
vated contact of a Papco official and did not serve as
844 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 It also appears that by this time the Respondent had removed the
Board’s notice in the prior case from its bulletin board.
7 Although the Respondent has pointed out that Phillips by this
time was an agent for the Employer which had appointed him fore-
man on the Georgetown project, we do not find that this factor de-
termines Phillips’ status as a union agent in this case.
8 In adopting his colleagues’ finding that the Respondent violated
the Act by refusing to refer Brown for employment, Member
Devaney does not rely on their conclusion that Phillips’ animus to-
wards Brown was attributable to the Union because the complaint
fails to allege that Phillips was a union agent. Member Devaney
finds rather that the Respondent’s conduct was unlawful because the
Respondent did not comply with its established hiring hall proce-
dures when it failed to refer Brown on April 3. In reaching this con-
clusion, he stresses the evidence here demonstrating that the Re-
spondent effectively operated an exclusive hiring hall at least insofar
as it concerned Brown’s employment opportunities with the Em-
ployer. The Board has held that a union which operates an exclusive
hiring hall must represent all individuals who seek to utilize the hall
in a fair and impartial manner. Plumbers Local 725 (Powers Regu-
lator), 225 NLRB 138, 143 (1976). It is also clear that the labor or-
ganization conducting such an operation has a duty to conform with
and apply lawful contractual standards in administering the referring
system, and any departure from the established procedures resulting
in a denial of employment constitutes inherently discriminatory con-
duct. Id. at 143; Operating Engineers Local 513 (S. J. Groves &
Sons), 199 NLRB 921, 922 (1972). In denying Brown a referral on
April 3, Walker relied on the December 1984 letter which the Board
earlier essentially found was the result of a discriminatorily moti-
vated contact initiated by then Respondent Official McMahan and
which was no defense to the 8(b)(1)(A) violation found in the re-
fusal to refer Brown to Papco in 1984. Because Walker relied on
that letter in denying referral here, Member Devaney concludes that
the Respondent has not offered valid justification for operating its
hiring hall in a discriminatory manner. For these reasons, Member
Devaney agrees with his colleagues that the Respondent’s conduct
here constituted a violation.
9 In so concluding, we specifically reject the judge’s finding that
the Employer’s ‘‘letter of August 14, 1989 remains as suspect and
inefficacious in resolving the instant dispute, as prior letter [sic] of
December 22, 1984 was found to be.’’ We find, rather, that the Au-
gust 14 letter legitimately resulted from Walker’s persistent efforts
to secure employment for Brown with the Employer.
a defense in the earlier Board decision to the Respond-
ent’s discriminatory refusal to refer Brown in 1984.
Further, Brown’s file did not contain a copy of the
Board’s decision when Walker reviewed it.6
On March 31, Brown registered at the Respondent’s
hiring hall after the project on which he had been
working ended. It is undisputed that on April 3 Walker
deviated from the Respondent’s established referral
procedures by failing to refer Brown for work with the
Employer based on Phillips’ representations regarding
Brown’s ineligibility to work for the Employer and the
Employer’s December 22, 1984 letter stating that it
would not rehire Brown. On April 5, Brown protested
Walker’s refusal to refer him and specifically men-
tioned that there had been a legal proceeding that ne-
gated the effect of the Employer’s letter on which
Walker was relying to deny referral. Nevertheless,
Walker persisted in his refusal to refer Brown to the
Employer’s Georgetown jobsite.
Although it is clear from the record that Walker
himself did not possess any animus towards Brown,
we conclude that his refusal to refer Brown on April
3 was discriminatory. Based on Phillips’ lengthy post-
ing of the notice from the prior case and his failure to
inform Walker about the Board’s decision there, we
agree with the judge that the evidence supports a find-
ing that Phillips had continuing animus towards Brown
for the same reasons that McMahan did. We also adopt
the judge’s finding that Phillips was acting as the Re-
spondent’s agent in providing information to Walker
about Brown’s status with the Employer because, as
the judge found, Phillips remained on the Respondent’s
payroll at the time.7 We therefore conclude that Phil-
lips’ animus towards Brown, as demonstrated above,
was attributable to the Respondent. We also find, con-
sistent with the judge’s decision, that the Respondent
could not rely on the Employer’s December 22, 1984
letter to justify its failure to refer Brown because that
letter had resulted from an earlier discriminatorily mo-
tivated contact between McMahan and a Papco offi-
cial. Thus, because the reasons for which Walker re-
fused to refer Brown were discriminatory at root, we
conclude that the Respondent violated Section
8(b)(1)(A) and (2) by this conduct.8
However, after Walker unlawfully refused to refer
Brown on April 3, the judge found that he made ‘‘a
real and continued local effort to try and get Brown
employed on the Papco jobsite.’’ In this regard, there
is evidence that shortly after April 5, when Brown
complained about the situation, Walker made a phone
call to Project Superintendent Glenn Faulk concerning
the Employer’s employment of Brown. Faulk told
Walker that he had strict instructions from James Mar-
tin, the Employer’s president, not to hire Brown.
Thereafter, about mid-April, Walker instructed his
business agent, Scott Lapman, ‘‘to get out there and do
everything he could to get [Brown] rehired.’’ After
Lapman went to see Faulk, Lapman reported back to
Walker that it was ‘‘impossible’’ to get Brown on the
Georgetown project because the Employer refused to
hire him. Walker’s further efforts to secure employ-
ment for Brown ultimately resulted in a new letter,
dated August 15, that Martin wrote to the Respondent
in which he stated, inter alia, that the Employer did
‘‘not intend to employ [Brown] at our Georgetown
project, or any other job.’’
In these circumstances, we conclude that the Re-
spondent’s backpay liability to Brown terminated about
mid-April when Faulk told its representative, Lapman,
that the Employer would not employ Brown in any
event.9 We do not require the Respondent to perform
the futile act of referring Brown to the Georgetown
project after the Employer, pursuant to its right under
the collective-bargaining agreement, had vehemently
845IRON WORKERS LOCAL 601 (PAPCO, INC.)
10 See Longshoremen ILA Local 1593 (Strachan Shipping Co.),
234 NLRB 511, 513–514 (1978).
11 Member Oviatt would not order expunction of the Employer’s
December 1984 letter. As found above, the Respondent’s backpay li-
ability here runs from April 3 to mid-April 1989, and we have
adopted the judge’s finding that the refusal to refer Brown in early
April was based in large part on Phillips’ continuing animus towards
Brown. The judge in the earlier Papco decision involving these same
parties (see fn. 2, supra, and related text) discussed the Respondent’s
then business manager’s seeking the December 1984 letter as part
of his attempts to avoid referring Charging Party Brown. But neither
the judge nor the Board in that case found an improper motive on
the Employer’s part in declining to reemploy Brown, nor did the
Board order expunction of the letter (though it did modify the
judge’s order in other respects). The 1984 letter has now been super-
seded in any event by the April 14, 1989 letter from the same Em-
ployer reiterating that it did not intend to employ Brown on any job.
We have found that letter legitimate. In these circumstances, Mem-
ber Oviatt deems it unnecessary and inappropriate to, in effect,
amend the Order in the prior case issued over 6 years ago.
rejected Brown as an employee.10 Based on our find-
ing regarding the duration of the Respondent’s back-
pay liability, we find it unnecessary to expunge from
the Respondent’s files the Employer’s August 14, 1989
letter stating its unwillingness to hire Brown. The evi-
dence here shows that the letter was not the product
of any taint and, as noted, the Employer had informed
the Respondent 4 months earlier that it would not re-
employ Brown. However, we shall require the Re-
spondent to expunge the Employer’s December 22,
1984 letter from its files because, as the Board found
in the earlier unfair labor practice case involving
Brown, the Respondent in effect solicited the letter
with a discriminatory intent, and the Respondent later
relied on it in April 1989 when the Respondent unlaw-
fully refused to refer Brown for employment with the
Employer.11 Finally, although in the Board’s 1985 de-
cision a broad order was issued, we conclude that, in
light of the length of time since the events of that case
and the events here and also of Walker’s good-faith ef-
forts in this case to obtain employment for Brown, the
Respondent has not engaged in conduct that warrants
a broad cease-and-desist order under Hickmott Foods,
242 NLRB 1357 (1979). We shall modify the judge’s
remedy consistent with our findings above.
REMEDY
Having found that the Respondent has violated Sec-
tion 8(b)(1))(A) and (2) of the Act, we shall order it
to cease and desist, and to take certain affirmative ac-
tion designed to effectuate the policies of the Act. We
shall order the Respondent to make whole James L.
Brown, Jr., with interest, for any loss of earnings and
other benefits he suffered as a result of the Respond-
ent’s discriminatory refusal to refer him for employ-
ment from April 3 until mid-April 1989, when the Em-
ployer lawfully declined to hire Brown. We shall also
require the Respondent to expunge from its files the
Employer’s prior letter of December 22, 1984, stating
its unwillingness to hire Brown and to notify him in
writing that it has done so.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Inter-
national Association of Bridge, Structural and Orna-
mental Ironworkers, AFL–CIO, Local 601, Charleston,
South Carolina, its officers, agents, and representatives,
shall take the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(b).
‘‘(b) In any like or related manner restraining or co-
ercing employees or applicants for employment in the
exercise of the rights guaranteed them by Section 7 of
the Act.’’
2. Substitute the following for paragraphs 2(a) and
(b), and reletter subsequent paragraphs accordingly.
‘‘(a) Make whole James L. Brown, Jr. for any loss
of earnings and other benefits he suffered as a result
of the discrimination against him, in the manner set
forth in the remedy section of this decision.
‘‘(b) Expunge from its files the Employer’s letter of
December 22, 1984, stating its unwillingness to hire
Brown and notify him in writing that it has done so.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO 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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT discriminatorily fail and refuse to
refer James L. Brown Jr. to employment with Papco,
Incorporated, or any other employer with which we
have an employment referral system.
WE WILL NOT in any like or related manner restrain
or coerce employees or applicants for employment in
the exercise of the rights guaranteed them by Section
7 of the Act.
846 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1989 unless otherwise indicated.
WE WILL make whole James L. Brown Jr. for any
loss of earnings and other benefits he suffered as a re-
sult of our unlawful failure to refer him to employment
with Papco on April 3, 1989, by paying Brown a sum
equal to the amount he would have earned absent the
unlawful conduct, plus interest, for the period begin-
ning on that date and ending in mid-April 1989, when
Papco lawfully declined to employ Brown.
WE WILL expunge from our files Papco,
Incorporated’s letter of December 22, 1984, stating its
unwillingness to hire Brown and notify him in writing
that it has done so.
INTERNATIONAL ASSOCIATION OF BRIDGE, STRUC-
TURAL AND ORNAMENTAL IRON WORKERS, AFL–
CIO, LOCAL 601
Jasper C. Brown Jr., Esq., for the General Counsel.
Paul Supton, Esq. (Van Bourg, Wineberg, Rogers &
Rosenfeld), of San Francisco, California, for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
ROBERT G. ROMANO, Administrative Law Judge. These
cases were tried in Charleston, South Carolina, on April 19,
1990. The consolidated complaint issued on November 16,
1989.1 James L. Brown Jr. (Charging Party or Brown) filed
the charge in Case 11–CB–1772 against International Asso-
ciation of Bridge, Structural and Ornamental Ironworkers,
AFL–CIO, Local 601 (Ironworkers Local 601 or Respondent
Union) on April 27. Brown filed the charge in Case 11–CB–
1793 against Respondent Union on August 4. The complaint
alleges that Respondent Union has violated Section
8(b)(1)(A) and (2) of the Act.
The primary issues are whether Respondent Ironworkers
Local 601, for unfair, arbitrary, and invidious reasons in vio-
lation of Section 8(b)(1)(A) and (2) of the Act, has: (1) since
on or about April 4, failed and refused to refer Brown for
employment at Papco, Incorporated (Papco); and, since on or
about July 24 through August 14 (as conceded by General
Counsel at hearing and/or in brief) failed and refused to refer
Brown for employment at the Cooper River bridge construc-
tion site of John F. Beasley Construction Company (Beasley)
at Charleston, South Carolina. By answer filed November 28,
1989, Respondent Union has denied the commission of any
unfair labor practices.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and the Respondent Union on
or about June 26, 1990, I make the following
FINDINGS OF FACT
I. JURISDICTION
Papco, an Alabama corporation, has a jobsite located at
Georgetown, South Carolina, where it is engaged in mainte-
nance and/or construction of a paper mill. Beasley, a Texas
corporation, has a jobsite located at Charleston, South Caro-
lina, where it is engaged in the construction of the Mark
Clark Bridge over the Cooper River, as part of a highway
construction job.
In a material annual period, each company has received
goods and materials valued in excess of $50,000 at its above
respective jobsite directly from points located outside the
State of South Carolina. At hearing the Respondent Union
admitted and/or I find that Beasley and Papco, each respec-
tively, is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that the
Respondent Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. Dissident union membership; and prior
Papco employment
James L. Brown, of Charleston, South Carolina, is a jour-
neyman ironworker who has been a member of Ironworkers
Local 601 at Charleston for some 27 to 28 years. Brown has
been a longtime critic of the Local Union and its officers.
Brown has previously run on several occasions for offices of
business agent and union president (apparently), each time
unsuccessfully. In any event, Brown more recently expressed
his opposition to union leadership in running (pre-1985) for
the union presidency against a prior incumbent (George Sim-
mons); and Brown continued to do so later during a period
of (appointed) service on the Local Union’s executive board.
(Brown last served on the Local Union’s executive board in
1987 by an appointment of then President Leonard Davis.)
It is undisputed that Papco had previously terminated
Brown on May 21, 1975, with Brown’s status change card
then marked not for rehire. (Brown clarified that the fight
was not on the job, but at a party at the supervisor’s home.)
In any event, Papco fired Brown at that time for insubordina-
tion to a supervisor, which involved a physical fight between
Brown and the supervisor.
Papco subsequently reemployed Brown from November 14
until December 18, 1978, when Brown was terminated in a
reduction in force. Papco next employed Brown from No-
vember 19, 1979, to April 10, 1980, when Brown was again
laid off in a reduction in force, notably after having worked
for Papco as a foreman during the last week or so thereof.
2. Prior cases
After one prior Board proceeding against Respondent was
resolved without litigation (as Brown recalls, during the pres-
idency of Phillip Lee), Brown thereafter successfully engaged
in two litigated Board proceedings on later meritorious
charges that he brought against the Local Union.
a. Board adopted findings of JD–52–84
In 1982 Brown filed charges in Case 11–CB–1126, which
were litigated in 1983. In 1984, without exceptions filed, the
Board adopted formal findings of Administrative Law Judge
Donald R. Holley thereon in that Respondent Ironworkers
Local 601 had violated Section 8(b)(1)(A) of the Act by hav-
ing threatened Brown with physical violence because he had
requested permission to copy the Local Union’s referral list,
847IRON WORKERS LOCAL 601 (PAPCO, INC.)
and by the Local’s charging Brown excessive fees for copy-
ing the lists. (Respondent Union was also found to have vio-
lated Section 8(b)(1)(A) and (2) of the Act for having
discriminatorily refused to refer an applicant, other than
Brown, under the Union’s then determined exclusive referral
system.)
b. Iron Workers Local 601 (Papco, Inc.),
276 NLRB 1273 (1985)
In 1984 Brown filed charges in Cases 11–CB–1280 and
11–CB–1320; and, a consolidated complaint issued thereon,
which was heard in 1985. The Board has since (essentially)
adopted the findings of (former) Administrative Law Judge
Hutton S. Brandon, in Iron Workers Local 601 (Papco, Inc.),
276 NLRB 1273 (1985), that Respondent Union had violated
Section 8(b)(1)(A) as was noted there (only) alleged.
Judge Brandon had found that Respondent Union violated
Section 8(b)(1)(A) of the Act: by Local 601’s business agent
Herman McMahan’s threatening Brown with physical assault,
and by McMahan’s then physically assaulting Brown for
having questioned a certain union expenditure; by
McMahan’s refusal to refer Brown to employment with
Papco and to certain other employers, with whom the Re-
spondent Union then had collective-bargaining agreements;
and, by Simmon’s disregard of referral procedures, and by
Simmon’s extending preference in referrals to individuals in
a manner not in accord with Respondent Union’s announced
hiring hall procedures.
Judge Brandon also found there was a conscious effort on
Business Agent McMahan’s part to avoid referring Brown to
Papco, and that McMahan’s testimony about a preparation of
a certain November 26, 1984 letter to H. S. Kelly, Papco’s
(then) project manager at the Papco Georgetown jobsite, was
incredible. Judge Brandon then further pertinently concluded:
An arrangement by which a union undertakes to
identify for an employer those former employees whose
records the employer has marked ‘not for hire’ in itself
smacks of a breach of the union’s duty of fair represen-
tation. But beyond that, other circumstances suggest
that the alleged 26 November letter even if it was in
fact mailed to Papco was a sham having no purpose
other than to avoid referral of Brown.
. . . .
Even if McMahan’s 26 November letter was actually
sent his discriminatory intent in including Brown in
those not to be considered for rehire in that letter is re-
vealed by McMahan’s admitted knowledge that he
knew that Brown had been hired twice by Papco subse-
quent to his 1975 discharge by Papco. Accordingly,
Papco itself had disregarded Brown’s 1975 discharge as
a basis for refusing to rehire him. I again do not credit
McMahan’s self serving and uncorroborated testimony
that Papco’s Wilbur Nations told him Brown’s subse-
quent hire had been a mistake. In this regard, it is to
be noted that Brown had been promoted to foreman
during his last period of employment with Papco short-
ly before the reduction in force that resulted in his ter-
mination. Such promotion is inconsistent with a belief
that his hiring was a ‘mistake.’ But even if Nations had
made such a statement to McMahan, it would not have
provided a basis for McMahan’s disregarding Brown’s
subsequent hirings by Papco for his records after those
periods of employment were not marked ‘not for hire.’
Only McMahan’s demonstrated hostility toward Brown
and discriminatory motivation can explain McMahan’s
persistence in avoiding referral of Brown to Papco.
The Board adopted Judge Brandon’s recommended Order
that the Respondent Union cease and desist from such con-
duct, including that Respondent cease and desist from refus-
ing to refer employees or applicants for employment through
its employment referral system in disregard of the provisions
of the collective-bargaining agreements it has with various
associations and employers or in disregard of its published
internal rules and regulations regarding such referrals; and,
that it cease and desist from in any other manner restraining
or coercing employees or applicants for employment in the
exercise of rights guaranteed them in Section 7 of the Act.
The Board modified the administrative law judge’s rec-
ommended Order to reflect the additional finding he had
made that the Respondent Union had refused to refer Brown
for discriminatory reasons; and accordingly, the Board or-
dered that Respondent Union, its officers, agents, and rep-
resentatives were to additionally cease and desist from
discriminatorily refusing to refer employees for employment
through its employment referral system because they have
been critical of the Union or the way it operates. Id. at 1273
fn. 1.
Apparently a 2- to 3-year period of quietude in job refer-
rals then developed, before Brown had occasion to file the
instant charges in 1989. Indeed, between November 27,
1984, when (as found in earlier proceeding) McMahan had
(initially) told Brown that he would not be referred to the
Papco job because he was on a not for rehire list there (de-
spite Papco’s employment of Brown twice in the interim
since the earlier Brown fight with a Papco supervisor in
1975), Brown never went out to Papco again. In that regard,
as Brown has recalled, it was probably November–December
1985 when Papco had moved out (the last time); and, Brown
didn’t believe Papco had had another job in there; or, if they
did, Brown was not aware of it. Moreover, Brown testified
convincingly that he thought he would be aware of it (an-
other Papco job) because of his continuing exclusive use of
the hall for securing work.
3. A preliminary view of the contentions
a. Case 11–CB–1772 (Papco)
(1) By General Counsel
The General Counsel contends the instant consolidated
complaint is but a continuation of the above history of Re-
spondent Union’s commission of unfair labor practices
against Brown; and indeed, argues the presently alleged re-
fusal to refer Brown to Papco evolved directly from certain
facts that were addressed and considered in cases resolved in
276 NLRB 1273, supra, pointedly a certain Papco December
22, 1984 letter to Union that had resulted from Union Busi-
ness Manager McMahan’s contact of Papco in a determined
course of discriminatory conduct.
In that regard, the December 22, 1984 letter was addressed
to McMahan and was from James L. Martin previously de-
scribed as a higher official of Papco in Mobile, Alabama.
848 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Board adopted findings of Judge Brandon that the above
Martin letter had resulted from an interim McMahan contact
of Papco officials, that the General Counsel would also have
noted occurred despite the interim Papco employment of
Brown on two interim occasions, and even despite interim
notice to Respondent’s counsel that Papco Project Manager
Kelly had on December 12, 1984, in writing verified Papco
had no objection to Brown working for Papco. Though Kelly
had later disclaimed a prior awareness of an earlier Papco
bar, Judge Brandon found that rather than relying on Man-
ager Kelly’s statement and referring Brown, McMahan had
attempted to have Kelly’s position on employment of Brown
reversed by contacting Kelly’s superiors.
Though discredited, McMahan had sought to explain his
further contact of Papco as made in order to find out Papco’s
position on those named in McMahan’s purported letter of
November 26, 1984. In contrast, the December 22, 1984 let-
ter that resulted from McMahan’s persistence in contacting
higher Papco official addressed only the subject of a Papco
bar of Brown, 276 NLRB at 1278.
It is apparent that in the prior proceeding the December
22, 1984 letter had no efficacy as a defense available to Re-
spondent Local Union’s alleged and proven violation of Sec-
tion 8(b)(1)(A). The General Counsel presently contends that
Respondent cannot rely on that same letter to refuse to refer
Brown; and, with Respondent Union’s continued reliance on
such an improperly solicited December 22, 1984 letter, the
instant complaint only reflects Brown’s continuing attempt to
secure from Local 601, but fair and nondiscriminatory treat-
ment for himself and others.
(2) By Respondent Local 601
At instant hearing Respondent Union centrally admitted
the above December 22, 1984 letter was found in Brown’s
file, and because of that, on or about April 4, a new adminis-
tration of the Local Union had refused to refer Brown to
available jobs at Papco, and at the same time had referred
others, even though Brown was chronologically more eligible
for referral there pursuant to the Respondent Union’s out-of-
work list(s).
However, Respondent defends that The General Counsel
has misperceived the clear import of the Board’s prior deci-
sion. Thus, contrary to the General Counsel, Respondent
Union centrally argues that although the Board found that
Respondent Union’s earlier denial of a referral to Papco was
intentionally discriminatory, the finding was clearly based on
Respondent Union’s (then) business manager’s, McMahan,
personal animosity evidenced toward Brown because Brown
had been critical of the Union’s policies. However, Respond-
ent centrally argues that Employer Papco’s letter of Decem-
ber 22, 1984, in affirming a (1975) barring of Brown from
its jobsites was not itself found by the Board to be unlawful.
There was thus no finding, or conclusion that the December
22, 1984 letter might not be relied on in the future, or that
the Union was required to expunge the letter from its files.
Moreover, Papco was not a party in that proceeding; and, the
Board’s prior Order did not emanate against Papco, and does
not bind Papco.
In that very regard, Respondent Union then argues that the
General Counsel has taken a quixotic position that Respond-
ent was required to refer Brown to the Papco jobsite, despite
the fact that it is thus shown and unrebutted that the Union
knew that were it to refer Brown to Papco, Papco would not
employ Brown because Brown had been barred from all
Papco jobs because of his 1975 battery on a Papco super-
visor; despite the fact that Respondent independently had a
right to reject Brown under the terms of the existing collec-
tive-bargaining agreement; and despite clearly changed union
circumstances that do not support any claim of continued
union discrimination against Brown.
The urged changed union circumstances are: (a) the pre-
viously offending and hostile business manager (McMahan)
had been removed, and in his place the International had in-
stalled its general organizer/trustee (Billy Joe Walker), a non-
hostile administrator; and (b) the Respondent Union (through
Walker) had done everything in its power (I especially note)
subsequently (after an initial failure and/or refusal to refer
because of the letter), though unsuccessfully, to persuade
Papco to lift the December 22, 1984 stated bar against an
employ of Brown at its jobsites.
Respondent contends that the General Counsel’s theory of
violation has shifted from an initially stated unlawfulness
based on union reliance on the December 22, 1984 letter as-
serted as previously found to be illegal, to less unequivocal
position being stated at end the of the hearing that the trust-
ees, (sic) appointed by the International Union in the spring
of 1989, shared animus and hostility of former Business
Manager McMahan. Respondent contends that neither posi-
tion is supported by the evidence presented of record.
b. Case 11–CB–1793 (Beasley)
Respondent also admitted at hearing that it temporarily re-
fused to refer Brown to the Beasley jobsite at Charleston,
South Carolina, on or about July 24, and at the time referred
certain others, even though Brown was chronologically eligi-
ble to be earlier referred under Union’s out-of-work list.
However, the Respondent contends that it did so properly be-
cause Brown (as well as others similarly passed over) was
(were) not qualified to perform the particular work of con-
necting the steel on the bridge structure as required by the
Employer under the initial circumstances of that job.
Respondent argues that the General Counsel’s position on
the July 24 Beasley nonreferral has simply breached common
sense in that it would have the Board order Respondent to
dispatch Brown to a position of employment, namely as a
connector (on a then-troubled bridge being constructed over
the Cooper River), to do certain connector work which the
Union reasonably believed, based on Brown’s experience
and capabilities, Brown was not qualified to perform, and
which would jeopardize Brown’s life and safety and that of
his fellow workers. Respondent contends it is apparent that
it held no animosity towards Brown on the Beasley jobsite,
because it referred Brown to the Beasley jobsite as soon as
ironworker jobs other than connector opened up (beginning)
on August 14.
The General Counsel counterargues that the Union offered
to refer Brown to the Beasley job only after Brown had filed
(second) instant charge on August 4; and the General Coun-
sel further contends, contrary to Respondent Union, that non-
connector jobs were in fact earlier available. The General
Counsel alternatively argues, that by the refusals of Walker
and Phillip Lee (Union’s present business manager, and ap-
pointed by Walker) to refer Brown to the Beasley jobsite, on
the basis of (essentially) their unsubstantiated perceptions
849IRON WORKERS LOCAL 601 (PAPCO, INC.)
that Brown was not qualified as a connector, the Respondent
Union has failed to employ and follow stated objective fac-
tors set forth for the operation of its hiring hall, as required.
B. The Evidence
1. Changes in the Local
a. Administration
Walker has been an ironworker for 35 years. For the first
15 years Walker worked as a connector. However, during the
last 5 of those years he worked mostly as a foreman or su-
perintendent. For the last 20 years Walker has been regularly
employed as a union official. Walker initially was employed
as business manager of Ironworkers Local 5 in Washington,
D.C., for some 15 years. More recently, the International em-
ployed Walker as a general organizer and administrator. In
mid-March, International’s general president appointed Walk-
er to be administrator of Respondent Union. Walker took
over Local 601 on March 20.
Walker had previously been working for about 18 months
as administrator of Ironworkers Local 272 in Miami (cor-
recting similar problems) when Walker was called to Wash-
ington about mid-March to meet with the general president
about Local 601 and the problems that Local 601 had been
having throughout the last 10 or 12 years, including a pur-
ported mismanagement of per capita moneys that Local 601
owed the International. At that time the International gave
Walker letters (written authority) to put Local 601 under su-
pervision. Walker decided and/or knew then that he would
put Local 601 under supervision on March 20.
Walker took over the administration of the Local from its
business manager, Johnny Phillips. On March 20, Walker ter-
minated Phillips and all the Local’s officers, including Phillip
Lee, who was then a member of the Local Union’s executive
board. Walker asserts he terminated Phillips because Phillips
wasn’t working out as an elected business manager.
Starting on March 20, Walker brought in Scott Lapman
from outside the Local to serve as a temporary business
agent. However, Walker had Phillips remain briefly. Thus,
Walker related he kept Phillips on a week or 10 days to help
Walker get orientated with what was going on, though Walk-
er added there was never a doubt that Phillips was going to
leave. Walker explained otherwise that he gave Phillips a
week’s vacation, allowing Phillips in that period to effec-
tively work there a few hours a day. When after about 6
weeks (thus by early May), Lapman in turn didn’t work out,
under circumstances to be discussed further below, Walker
appointed Phillip Lee as business manager (about a month
later) on June 18.
In the interim, Brown was generally aware of the initial
changes being effected in union leadership at the Local.
Brown confirms the Local Union’s business manager at the
time was Phillips; and, Brown recalled that before Phillips,
it had been Herman McMahan, with whom Brown had ear-
lier experienced the above referral difficulties while engaging
in protected conduct as a union dissident. Certain restraints
placed on that protected activity resulted in the Local
Union’s determined violation of the Act in Brown’s account
above, principally by discriminatory and/or coercive conduct
of (former) Business Manager McMahan, and Respondent
Union’s (then) president, Simmons, who acted as business
agent when McMahan left in January 1985.
On one occasion, Brown had (erroneously) related that
McMahan was probably the last elected business agent. On
later occasion Brown then recalled more accurately that Phil-
lips was initially appointed as business manager (by whom,
he did not know) in late 1986, and had served under that ap-
pointment until later elected in 1987 to a full term of office
as business manager of Local 601. Phillips was (during some
undisclosed time) McMahan’s brother-in-law.
Lapman, who was out of Local 808 in Orlando, Florida,
served as temporary business agent for Local 601 starting on
March 20, but for only about 6 weeks. There was a lot of
hard feelings from members about the appointment of
Lapman as business agent of Local 601, because Lapman
was not one of them, i.e., not a member of Local 601. When
Lapman realized it just didn’t work out, he quit.
Walker next questioned members in the Local (including
Brown) before he appointed Phillip Lee as the Local’s busi-
ness manager. Lee had worked as a call-in ironworker for
about 18 years, during which period he has tied rods, done
connecting work, some welding, finishing, and miscellaneous
ironworker work. In short, Lee has done just about all of an
ironworker’s work.
Lee had also been president of the Local for 3 years in
the early 1980s, during which latter period he was paid as
a dispatcher for 9 months. Lee later served as a member of
the executive Board for an undisclosed period of time. As
noted, Lee was such (apparently) at the time of Walker’s
takeover. In some unspecified period Lee had also served as
recording secretary of Local 601.
Walker didn’t get any negative from Brown, or a number
of other Local 601 members he questioned about an appoint-
ment of Lee as business manager. Indeed, Lee’s father had
been business manager of Local 601 on three different elect-
ed occasions stretching over a period of 28–30 years, and
through 1978, when McMahan ran against him, and was
elected. Everyone liked the idea of Walker’s appointment of
Phillip Lee as the business manager of Local 601.
Brown relates that he has known Phillip Lee for over 20
years; and Brown confirmed he told Walker that Lee would
be the guy he would appoint. Brown specifically told Walker
that Brown would like to see Lee, who had gone to work
in a Navy yard, to once again get involved in the operations
of the Local.
The parties stipulated Lee testified on Brown’s behalf in
a previous NLRB case. Lee later testified more precisely that
he was a material government witness in regard to an assault
charge that Brown filed against then Business Manager
McMahan. However, Lee’s own view was that his testimony
had nothing to do with an alleged failure of the Union to
refer Brown to Papco, though Lee had heard of it; and, he
was at some point aware there was a Board case on it. In
any event, noting he did not take office as business manager
until June 18, Lee initially said he never told Walker about
the Board case. On cross-examination Lee did qualify that it
was possible that he had discussed the Board’s case with
Walker at the time of Walker’s direction to him in July to
contact Martin, but he didn’t recall the details. Lee had also
said on direct that he did not recall being present at any time
when Phillips and Walker had discussed it. On cross-exam-
ination Lee related that it was very likely, adding imme-
850 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
diately, possible that Lee was present during a discussion
about the Labor Board case where Phillips was present, but
he also really didn’t recall that.
b. Status of the Local; applicable agreements
On March 20, there were approximately 500 active and in-
active members of Local 601, though some 400 of them
were employed elsewhere in major cities throughout the
country. Indeed, a survey Walker then conducted established
there were only 47 people that lived close enough to be re-
ferred out of the hall to work. Even more notably, there was
then only 1 union contractor with a job in the area; and,
there were only 12 employees actually working at this time.
(There are now about 550 active and inactive members of
Local 601.)
When Walker took over, a master agreement existed be-
tween the District Council of Ironworkers of the South-
eastern States District Council (District Council) of Inter-
national, and the Union Contractors and Subcontractors As-
sociation, Inc. The District Council was (apparently) then
composed of six local unions, including Local 601. The mas-
ter agreement’s duration extended from October 1, 1987,
through September 30, 1990. The master agreement provides
(in general) for a four-(or five)-group referral system (basi-
cally) designed around length of time worked in the area; du-
ration and area of claimed work specialty; and journeyman
and apprenticeship status (and others). For the actual use of
material lists in practice thereunder, see below.
Walker relates there was a lot of work in the area, the
problem was there weren’t any union contractors to bid the
work. As administrator, Walker’s job was to come in and run
the local Union; get it squared away; get some union fair
contractors reestablished to bid the work there; to get the
men back to work; and finally, to pay off the debt that the
Local owed the International.
When Walker took over as administrator of Local 601 on
March 20, Brown was working as a foreman for Hudco, as
he did through the last day of March when that job ended.
Brown recalled that he had first met Walker back in the late
1960s, early 1970s when Walker was business agent for
Local 5 in Washington, D.C., and Brown was working there
at the time. Walker did not recall knowing Brown pre-
viously, but he conceded that it was very possible that he
had (first) met Brown there, as they had a lot of work in
Washington.
The first time Brown met Walker in 1989 was when
Walker came on a Hudco job in Harleyville, South Carolina,
as Brown recalled it, some time after March 20 and prior to
March 30. Brown was foreman on the Hudco Harleyville
job; and Glenn Corby was steward. Seemingly, Brown re-
calls Walker had (first) told Brown at that time of an upcom-
ing Papco job at Georgetown (paper mill); and Walker was
enthusiastic that there would be a lot of work available.
Though Brown asserts he already knew about it, Brown ac-
knowledged that Walker had (initially) told Brown about
Papco’s upcoming Georgetown job.
Walker’s understanding is that International Paper owns
Papco; and, that Papco had worked in the area under contract
years ago at International paper’s paper Mill in Georgetown,
South Carolina, but not currently. Though Walker undoubt-
edly knew of a prospect of it beforehand (I find) Walker first
learned on March 30 (Thursday), that a Papco union job was
(actually) going to start up when he attended a meeting with
the president of Papco, and a project agreement was actually
put together, i.e., signed, that day.
The NKR Project, International Paper, Georgetown agree-
ment (G.C. Exh. 5) is a wage (apparently not benefit) con-
cessionary project agreement that was executed by Walker
on behalf of International (as well as by other building trades
representatives, on behalf of their respective craft Inter-
national Unions). The agreement is singularly applicable to
this project to enable a union contractor (Papco) to get cer-
tain construction (plant maintenance, repair, and renovation)
work at Georgetown. While under the Papco project agree-
ment the Employer maintains certain rights in manning the
job, the project agreement otherwise provides, ‘‘the Con-
tractor is bound by the hiring practices in the local area not
inconsistent with the terms of this Agreement.’’
Though the project agreement recites an entry date of
March 1, it bears a signature page date of March 30, along
with an executed signature of James R. Martin as Papco’s
president and general manager. Though there is confusion of
record, weight of more consistent and credible evidence
would indicate that after the project agreement was signed at
the March 30 meeting, Papco’s superintendent, Glenn Faulk
(Faulk), had then made his first request for men. (Walker’s
first referral thereon was made, I find, some time early the
next week, on April 3 or 4, but more probably on April 3,
Monday, with the requested men to report to the job on April
4 or 5, but more probably April 4.)
Walker testified, without contradiction, that at the project
meeting, the Company had also asked for Phillips to be their
foreman/supervisor. Walker related that Phillips in turn had
later asked for two men by name, which Walker wrote down
on the pad on the same day Phillips made the request.
In the interim, on March 30, on his way home, Brown had
stopped by the union hall to drop Hudco steward reports off
at the request of Union Steward Corby. On that occasion
Brown talked to Walker about the Papco job out in the hall
between the conference room and the office. Brown was sure
there were other people present, but didn’t recall who, since,
as he asserted, he hadn’t been introduced to all the people
in the hall because he had been working, probably 12 hours
a day, from the time the International took over.
Walker informed Brown (at least) then, if he had not also
earlier on the Hudco jobsite, that Papco’s International Paper
job at Georgetown was going to start; and, Walker told
Brown that as soon as Brown finished up in Harleyville, to
let Walker know, because he needed people down there (at
Papco). Brown’s job at Hudco ended the very next day,
March 31 (Friday). On March 31, Brown came by the union
hall. Brown signed the 30-day book, one of (at least) 2 reg-
ister out-of-work logs, or lists then in actual use.
2. The hiring hall system in local operation in April
At this time (at least materially) the Union used both a 30-
day book and a daily work log, or list, in making its refer-
rals. The practice was that on becoming out of work, a mem-
ber-employee-applicant (employee) could sign and then re-
main on the 30-day book for 30 days until the employee
went to work. (At that time the practice also was that an em-
ployee was required to sign this 30-day log every 30 days
to remain on it.) The Union additionally used a daily work
log that an employee signed each day to show the employee
851IRON WORKERS LOCAL 601 (PAPCO, INC.)
went to the hall that morning/day for a referral. (The daily
work log was readily accessible to all. It was kept on a little
shelf, right by the office as the employee walked in the
door.)
Brown credibly summarized his understanding of the sys-
tem at this time to be: if you went into the hall and you
signed the daily work log, and you were in the hall when
a job call came in and they needed men, they went (the
Union referred) from this daily log. If there were no men in
the hall, they then went to the 30-day book and called people
to fill the job order. Use of the daily work log and 30-day
book in this manner continued until May 23, 1989.
Under existing contract (whether it be the Papco project
agreement or the otherwise applicable master agreement),
and hiring hall rules and/or practices that were in effect when
Walker became administrator (and as have remained in effect
thereafter), an employer has a right to request that an em-
ployee be referred by name. Thus, while the project agree-
ment provided that the Union would be a source of employ-
ment referrals (at least for 48 hours), and that the Union
‘‘will be contacted and shall refer all applicants for employ-
ment to this project according to the standards of criteria uni-
formly applied to any project in the area.’’ (G.C. Exh. 5, p.
5, art. III,A.) It otherwise states simply, ‘‘The contractor may
hire employees by name who have special skills or have pre-
vious working experience.’’ (Id. at art. II,1,C.) There is no
stated ceiling in the employment right; and, there is no ex-
plicit requirement that an employer give the Union a written
letter when requesting an employee by name.
In comparison, the master agreement, apart from providing
an employer a right to hire its key supervisory personnel,
provides (materially, i.e., on coming into a Local’s jurisdic-
tion) that the employer may bring in employees to man up
to 40 percent of a job. The master agreement otherwise
states, ‘‘the employer shall have the right, on any job, to re-
quest by name any applicant for employment in Group A
only, as defined below, regardless of such employee’s posi-
tion on the Referral List.’’ (G.C. Exh. 4, p. 3, LL. 2–5). Es-
sentially group A, one of five contractual groups (or lists)
covered tradesmen working in the Local’s geographic area
for 4 years as a journeyman or apprentice; and, if claiming
specialty/classification, also working with 6 months such ex-
perience in the same period. However, an apprentice did not
sign group A list. (The apprentice did not sign this list until
the apprentice became a journeyman.)
The related general practice is an employer just calls the
hall, and asks for men. When the contractor calls in the
union records on a yellow pad: the contractor’s name, the job
location, how many men the employer has asked for, and
who actually made the call. If an employer requests a person
by name, the Union also puts that person’s name on the pad,
and writes requested behind it.
The Union does not require a written letter from an em-
ployer before it will send a man out that is requested by
name. Though Walker thought they possibly could require it
under the contract; Walker felt that would alienate contrac-
tors, some of whom call in for 20 men for 1 day. Walker
relates he has been a business manager or acting business
manager for almost 20 years and to his knowledge it’s never
been done. Walker testified (at least) that his practice was
they just called by name. Under hiring hall provisions in
both agreements the Employer (I find) has the right to reject
people that the Union sends. (Compare clear statement there-
of in master agreement, G.C. Exh. 4, p. 2, LL. 23–24, and
Papco general management right to hire in project agreement,
G.C. Exh. 5, p. 3, art. II,1,C.)
The changes that Walker later made in hiring hall rules
and/or practices, on May 23, did not affect the practice of
the Union’s acceptance of an employer’s (oral) call for an
employee by name, nor the employer’s contractual right to
reject an individual that the Union might refer. If not imme-
diately, at least with implementation of Walker’s changes in
the hiring hall system imposed on May 23, Walker also im-
posed his longtime view and practice that a member had pre-
rogative to refuse a job without sacrifice of his position on
an out-of-work list. Although after May 23, there was no 30-
day book in use, when a daily work list was exhausted, the
next preceding such list was successively used, until all the
job requests were filled.
3. The early April referrals to Papco
Brown went to the hall on the following Monday, April
3, at which time he signed the daily log. On April 4 (Tues-
day), Brown again came to the union hall. On that occasion,
Brown found out from word of mouth (and Walker later
verified it), that Local 601 members Johnny Phillips, Danny
Steff, and several others had (in the interim) been referred
to the Papco Georgetown job.
At one point, Walker asserted that on March 30 or 31, he
had made the decision who would be referred, though it
would appear more likely that the actual referrals were made
on April 3 or (at latest) 4, as found above. In any event, in
making the referrals, Walker started from the top of the daily
log, and he has acknowledged that he did not refer Brown
to Papco.
Walker explained that on (I find) the prior March 30,
Thursday evening, after he had just come back from the
(project agreement) meeting, Brown was in the office. Walk-
er was excited about Papco’s Georgetown job getting ready
to start. Walker told Brown that they were going to get 30
or 40 men (employed) up there. Walker testified credibly that
he had full intention at that time of sending Brown out on
that job. When Walker finished talking to Brown, Walker
then went back into his office.
Former Business Manager Phillips was still on Union’s
payroll, though Papco’s superintendent, Faulk, had just asked
Walker to send Phillips as Papco’s foreman on the job. Phil-
lips was in the Union’s office; and, on Walker’s entry, Phil-
lips told Walker you better look at Brown’s file before you
send him out to Papco. (In November 1984, Phillips was re-
ferred to Papco at a time when Brown was not, though un-
like Brown, that Phillips was not on either list, 276 NLRB
at 1276.)
On March 30, Walker asked former Business Manager
Phillips was there a problem. Phillips said yes, ‘‘Brown’s not
eligible for rehire up there; and, if you send him up there,
you’re going to create some big problems.’’ With that Walk-
er got Brown’s file out, and he reviewed it. Walker has testi-
fied (and I am persuaded on weight of evidence) credibly
that to his (then) knowledge he saw everything that there was
to be seen in Brown’s file. While all counsel were unwilling
to stipulate to it as such, noting content of the December 22,
1984 Martin letter had not been actually set forth in earlier
decision, what purported to be the Martin letter earlier re-
852 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The General Counsel offered the relevant Judge, Board, and (un-
published) court decisions and orders which were received in evi-
dence as G.C. Exh. 6. As stated at hearing, in deference to that
court’s presumed wishes in classifying its decision as one to be un-
published, I do not cite from nor otherwise rely on its contents here-
in. However, I do rely on the evidenced date of filing of that court’s
related order, for its likely relevance to the Respondent’s posting of
notices as previously ordered by the Board and then enforced. (In
passing, I note however that G.C. Exh. 6 as it appears in the General
Counsel’s Exhibit file does not contain the underlying Judge and
Board decisions. I have thus taken official notice of those decisions
as they appear in the above-referenced Board’s bound volume.)
ferred to in 276 NLRB at 1276 was offered and received in
evidence without objection. (On the General Counsel’s objec-
tion thereto, a Walker memo addendum on the letter was not
offered.)
The letter received in evidence bears purported James R.
Martin’s signature on letterhead of Papco, general contractor.
It also bears date of December 22, 1984; and, it is addressed
to Herman McMahan, with copy to H. S. Kelly, who was
Papco’s project manager at the time in 1984. Weight of evi-
dence, such as has been presented of record herein, warrants
further present finding that on March 30 Walker found Mar-
tin’s letter of December 22, 1984 (R. Exh. 2), previously ad-
dressed and considered by the Board, still in Brown’s file;
and Walker read it at that time. That statement (letter), as
previously found, said that Brown was not eligible for rehire
for Papco; and that he was not allowed to be on International
Paper Co.’s property.
However, it had also been previously found that on De-
cember 12, 1984 (then), Papco Project Manager Kelly had
earlier verified: that Brown had worked for Papco in 1978,
and again in 1979–1980; that Brown ‘‘was terminated on
both occasions in a reduction in force’’; and that Kelly had
‘‘concluded that in view of that, Papco had no objection to
Brown’s referral by the Union and that Brown should not be
on a not-for-hire list.’’ Id. at 1276.
Moreover, the December 22, 1984 Martin letter was pre-
viously determined to have resulted from McMahan’s contact
of higher Papco official after Respondent Union’s then coun-
sel had been informed of Kelly’s above statement of Papco’s
position. It is clear enough that the December 22, 1984 letter
was found to be a result of McMahan’s contact of Papco of-
ficial, with a previously found persistent McMahan purpose
to discriminate against Brown. Id. at 1279.
Walker recounts that he had also reviewed a file entitled
‘‘International Association of Bridge, Structural and Orna-
mental Ironworkers, Local 601 vs James L. Brown’’ which
had detailed what had happened on the job. However, Walk-
er has testified that he never at any time saw any related de-
cision from a court, or by the NLRB, saying that that thing
(in this context, clearly the McMahan solicited December 22,
1984 letter of Martin) had been overturned. Walker has oth-
erwise asserted that it was not unusual that that (Board or
court decision) was not in Brown’s file, because there were
a lot of things that were missing from files that the Union
had (maintained) on most of the employees. Walker noted
that McMahan had (maintained) the files back in 1984–1985,
until McMahan went out (of office) in 1985 when he went
to jail.
In rebuttal, Brown then testified that the decision rulings
and notices in the above decisions, and particularly the last
decision were posted on two bulletin board locations in the
hall for years beyond any normal 60-day notice posting time.
Although Brown indicated that one (notice) may have been
taken down after Phillips came into office, Brown testified
that over his repeated objections, both McMahan and Phil-
lips had left Board notices on the Union’s bulletin board in
the meeting hall (beyond normal posting times) as a con-
tinuing discriminatory measure against Brown, namely, so
that all of the Union’s members on appearing at the hall
could see Brown had brought charges against the Union.
Brown asserted that the (last) decision was posted on the hall
board as late as on March 8, but he didn’t know whether it
was on the board on March 20, when Walker took over.
Walker testified in rebuttal, it wasn’t posted, reaffirming
he had never seen the decision, and asserting specifically,
that there was no decision on the union bulletin board when
he took over. Lee corroborated Walker, in that Lee testified
that he didn’t recall a decision ever being posted; but, Lee
also confirmed Brown that rulings (I find) notices, naming
Brown were posted. Lee didn’t specifically recall when he
had last seen them up. Lee related that he may have seen
them in 1988, but couldn’t recall as to 1989. However, Lee
then testified significantly, he knew that they were up for a
long period of time.
In regard to likely timing of initial posting of the most re-
cently posted notices, I take official notice that the Board’s
decision in the above (last) case against Respondent Union
reported at 276 NLRB 1273, issued on September 30, 1985;
and (only) that an Order of the Fourth Circuit Court of Ap-
peals enforcing the said Board’s Order was filed on May 27,
1986.2
Walker relates otherwise that he had also reviewed another
letter from a different company barring Brown from unre-
lated other jobs. Brown asserts that he had had no knowledge
of there being any other letter in Brown’s file barring Brown
from a job. Walker testified that a G&R Plant Maintenance,
Inc. (G&R) letter (R. Exh. 3) by Hubert Gray to Phillips,
dated March 2, 1989 (apparently received while Phillips was
still business manager) was also found in Brown’s file.
The G&R letter in evidence states in pertinent part that
due to past experience with the named member, that G&R
requests that Brown not be referred to G&R’s Gifford Hill
jobsite. Brown did not know G&R Maintenance, but Brown
acknowledged he was injured in the past on a Gifford Hill
jobsite. Otherwise Brown asserts he did not know that a
G&R Maintenance had barred Brown from working for
them.
a. The April 5 Brown–Walker conversation
Walker asserts that he called Papco the same day that he
turned Brown down in sending him out there (at best) the
more likely at the time of issuing the referrals, but he didn’t
get (contact) anyone that day because Papco’s office still
hadn’t been set up yet. On April 5 (Wednesday), Brown
came to the hall and talked to Walker in his office about the
Papco referrals. Brown recalled that he initiated the con-
versation. Brown asked Walker why he was not referred to
Georgetown, and why Phillips and Danny Steff and certain
named others had been referred to the Georgetown job ahead
of Brown.
853IRON WORKERS LOCAL 601 (PAPCO, INC.)
Testifying from memory, Brown seemed to concede on
Phillips, in explaining he thought Phillips had probably
signed the book before Brown did, but that Steff had signed
it after Brown did. Brown otherwise recalled one of the Bur-
rows boys was on the list. Brown was not sure about wheth-
er Larry Simpson had also signed the book or not; but he
did not believe that Jean McMahan (whom he thought was
one of the original ones that went down there) was on the
book. Be that as it may, Respondent Union in any event does
not contest that Brown was not referred to Papco’s George-
town jobsite, or, that others with less chronological (list)
placement were. (Indeed, since 1984, Brown has never been
referred by Local 601 to a Papco job.)
In their April 5 conversation, Walker told Brown that the
Company (Papco) had requested Phillips and Steff by name.
Brown asked Walker if he had a letter requesting them.
Brown told Walker that was the procedure. Walker told
Brown that he didn’t have a letter, but if need be, he could
get a letter from Papco requesting that, as Papco had called
for Phillips and Steff by name.
Brown testified relatedly it is not a practice that he is
aware of that the Union will accept a request for referral of
individuals by name without it being in writing; but Brown
further related that such was his understanding stemming
from the 1985 decision where (so he understood) the NLRB
had ruled a name request had to be requested by letter. Nei-
ther as evidenced practice, nor any such Board-stated re-
quirement appears in that case. Moreover, certain Brown tes-
timony regarding his own referral to a job where an em-
ployer (Huber) had called him at home, more supports con-
clusion the Union gave Brown referrals without the Union’s
requirement of a letter in writing from Huber as a requesting
employer; and, even though in that instance there was some
dispute over the employer’s direct call of Brown.
Brown’s version of the April 5 conversation continues that
Walker had then explicitly told Brown that Brown was not
referred because they (the Local) had a letter from Papco
stating Brown was not for rehire on the Papco job. Brown
was firm (and is credited) that Walker was the first to men-
tion that letter. Brown relates that at that point he tried to
explain to Walker that that letter had already been brought
up and ruled upon in a previous case before the NLRB, that
it had been there considered and proven that McMahan had
solicited the letter from Papco. Brown is sure that he had
mentioned that there had been a previous NLRB hearing that
involved that letter. When Brown did so, Brown’s version is
that Walker had then informed Brown that he knew all about
it; that when he took over Phillips had alerted or told Walker
about it; that Walker said he had seen all the paperwork or
all the papers on it, and the letter in the file; and, Brown was
not for rehire at Georgetown.
On cross-examination, Brown acknowledged that he didn’t
know which papers Walker saw, or what documents Walker
had read; nor did Walker tell Brown which paperwork he
had seen, and which he hadn’t. However, Brown was sure
Walker did say he saw a letter from Papco, and it had said,
Brown was not very high (but in context, and clear else-
where, not for hire). Brown knew of only the one letter,
McMahan’s solicited December 22, 1984 letter; and, Brown
also believed he had told Walker that letter had been re-
versed or nullified, or words to that effect, but didn’t remem-
ber his exact words. Brown acknowledged that he had never
told Walker Papco had changed its position and reversed the
letter or withdrawn it.
Walker has categorically denied that he ever discriminated
against Brown. Walker notably testified, that Phillips had
never told him that there had been a Board decision which
issued involving Brown; and also (though not without some
strain in credulity in this respect), that nobody, other than
Brown, had told him about a Board decision involving
Brown. Walker asserts he didn’t talk to members about
Brown’s reputation, nor his work, or anything else.
b. Walker’s efforts to get Brown on the Papco job
Walker does relate, and in general more convincingly, that
he subsequently put forth a great deal of effort in terms of
attempts to get Brown back on, or employed at the Papco
job, which included personally talking to, and having others
talk to Faulk, and to Martin (though in the latter regard, I
do have certain reservations as to timing of an initial con-
versation as Walker recalled occurred between Walker and
Martin, discussed further below). Walker otherwise states he
made all his efforts because he represented Brown as an
ironworker.
Walker’s recollection is that Brown came in the next
morning (I find), April 5. At that time Walker told Brown
that Walker wasn’t going to be able to send Brown to the
Papco job. When Brown asked Walker why, Walker told
Brown of the letter Walker had found in Brown’s file. Walk-
er’s (at least) initial recollection was that Brown had told
Walker that there was a court decision that overturns that let-
ter. Walker initially related that Brown never said anything
about the NLRB, though he guesses Brown had meant the
NLRB. Walker said fine, bring me a copy of it in the morn-
ing. I don’t have that. According to Walker Brown said he
had it at home; and he would bring it to Walker, but Brown
did not bring it the next day, nor did Brown ever bring any
decision in thereafter.
Contrary to Brown’s assertion that it (the decision) wasn’t
again brought up, Walker testified that they had talked about
it again; that he knew that at least three times he had asked
Brown to bring it to the hall; and, Brown had said he would.
Indeed, Walker then related his recollections of some rather
persuasive supportive details, viz., that Brown was staying in
Charleston, but that he had another home in Darlington; and,
that Brown had told Walker he couldn’t find it there
(Charleston), and, that it was probably in his home in Dar-
lington. Walker related that Brown went there, but Walker
never got it.
Finally, Walker recounts that he had also asked the
Union’s general counsel, had he ever seen anything like that
(a court decision overturning the letter), and that (different)
counsel said no. So Walker asserts (at the time) he took it
that there wasn’t anything; that Brown was pulling his leg.
At some point during this general period of time,
McMahan was in town, but Walker had a hard time con-
tacting him. Walker explained McMahan had a car that was
in his name but that belonged to the Local, and they (only)
got that turned around 3 weeks ago. Walker had called
McMahan 5–6 times; and McMahan would never return
Walker’s calls. One day, when Walker finally did get to talk
to McMahan, he questioned McMahan about it. Walker re-
calls that McMahan’s answer was, I don’t know, its not my
job, a real smart answer.
854 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Brown affirmed that when he spoke with Walker on April
5 about the Papco referrals, Walker probably had asked
Brown to bring in some documentation; and, that Walker did
ask if Brown had any documentation to show that it (the let-
ter) had been overturned. However, Brown was sure he men-
tioned that there had been a previous NLRB hearing that had
involved that letter.
Brown also confirmed that Walker may have asked Brown
to bring in the NLRB decision; but contrary to Walker,
Brown asserts he didn’t say he would bring it in. Rather,
Brown relates that he told Walker there should be a copy of
it in the Local Union; and, that they would get a copy of
the same thing he would have gotten from the NLRB. Brown
further relates that Walker did not at either that time or any
other time ask Brown for any other documentation. Finally,
Brown asserts that Walker never asked Brown for the Board
decision again. Indeed, Brown states (generally) that he
never tried to get Walker a copy.
However, Brown has also related on occasion, at best
confusedly, if not disjointedly, that at the time that Walker
had asked him for the decision, he didn’t have the decision
anymore; that it was several years since, and he didn’t think
he even had a copy; thought he had discarded all that stuff;
but, then repeated he had never tried to get Walker a copy.
I credit Walker’s recollection that on more than one occasion
they had discussed Brown bringing in his copy of the
Board’s decision for Walker’s review.
Walker recalled that (in their April 5 conversation) Walker
otherwise told Brown to let Walker see what he can do with
this thing; that he was going to call the Company and try
to get Brown back up there; that Walker had asked Brown
to promise him Brown will go up there and not create any
problems; and, that Walker would do everything he can to
get Brown back up there. Walker asserts he not only did that,
but he went out of his way to try to get Brown on that job.
Brown later did recall (though not sure about any exact
date) that Walker in either that conversation or in another
conversation had told Brown that Walker had checked with
Papco to see whether or not they had lifted the ban on em-
ploying Brown. Brown didn’t know anything (more) other
than maybe on one occasion Walker told Brown that Walker
or maybe Lee or (acting business agent) Scott Lapman had
either gone down there or sent someone down there to try
to talk to them about it. Though unclear as to exactly when,
Brown did recall there was some union notice from Walker
and/or others reporting that Papco would not hire him.
(Brown added he didn’t remember whether Walker said that
Lapman had gone down there, or Lapman told Brown that
he had gone down there to see if he could reverse the deci-
sion.) Brown notably testified in any event, that if Lapman
went, it went on Walker’s record (in context, Lapman went
on Walker direction). So, Brown was fairly sure in his mind
that they did try. In the end, Brown summarized, Brown
thought Walker had done everything within his power to try
to get it okay; and Walker had tried to do everything he
should to get Brown back.
Otherwise lead to subject, Brown related that he had al-
ready looked at the 30-day list; and that he requested copies
of page 60, 61, and 62 of the 30-day book which would have
indicated that he was on the out-of-work list and ahead of
some of the people that were (sent) on the job. Walker told
Brown that Brown could look at the 30-day list, but refused
to give Brown copies, though Brown asserts he had offered
to pay for the copies. However, as noted, Walker does not
contest that Union did not refer Brown, but rather defends
its action in not doing so.
Moreover, it is notable that Brown has also testified that
Brown had no reason in this period to believe that Walker
had any grudge against Brown or was out to harm Brown;
adding significantly, that he never did, and still don’t. Brown
even more revealingly later explained that this was not a hos-
tile situation. Summarizing that he thought there was a mess
to begin with, Brown significantly stated his observation that
he thought that they (clearly Walker) were listening to peo-
ple that had some things against Brown.
Brown has also readily acknowledged that he has indicated
to Walker that Walker’s trusteeship in running the Union had
led to improvements that Brown approved of personally,
though also at this time apparently not wholly, as is indicated
by nonmeritorious assertions Brown had made in affidavit on
changes Walker had made in the referral system on May 23,
below.
Brown’s testimony vacillated however, and otherwise was
unsure on whether or not Walker had also told Brown on
April 5, or later, that Walker had already spoken by phone
with the Company and that the Company was still adhering
to the December 22, 1984 letter; and, they were refusing to
take Brown back.
Anything of record to the contrary notwithstanding, it was
(I find) more likely after April 5 that Walker had first been
able to contact Faulk by phone about Papco’s employment
of Brown. According to Walker, Faulk told Walker he had
strict instructions from his boss, James Martin, president of
the Company, that Brown was not to be back on this job.
At the time of first referral of men on April 4 or 5, Walk-
er knew that there were going to be subsequent referrals,
with Papco adding men in the days that followed. Walker
testified relatedly that he didn’t just send Brown out at that
time because he was in a hostile situation. He had taken over
a Local Union from members that didn’t want Walker there
to start with. When he took over, there were (only) 10–12
(of 47 available) people working (locally); and, Walker’s am-
bition was to get them all to work, as soon as possible.
Walker, in a self-described judgment call, recounts that he
just felt from everything he had heard and read that he would
be rocking the boat and creating big problems if he sent
Brown to that job. In that respect, other Walker testimony
then takes on added significance, that during his 15 years as
business manager of Local 5 in Washington, D.C., there
never had been a time that he had tried to get an ineligible
guy back on and had failed to get him back on—until this
time.
Following the Faulk conversation above, and recalled as
occurring within 5 days of his (initial) refusal to send Brown,
Walker asserted that he first called Martin, Papco’s president.
Walker’s recollection is that he then asked Martin if there
was any possibility, or anything Walker could say for Martin
to give Brown another chance to be on that job. Walker re-
counts that Martin told Walker on that occasion, hell, no;
and, evidently you don’t know the guy. Walker said he met
Brown a couple days ago, and, he didn’t really know him.
Walker relates that Martin then said, ‘‘Well, I know him,
and there ain’t no freaking sic way, that Brown’s going back
on that job.’’ Walker relates that he then stated to Martin,
855IRON WORKERS LOCAL 601 (PAPCO, INC.)
‘‘there’s talk that there’s a court decision or an NLRB hear-
ing decision that that thing (letter) was overturned.’’ Walker
also has Martin reply at this time, ‘‘I don’t give a damn what
court decisions there are, they don’t apply to Papco, and that
guy is not coming back on this job.’’ Thus, according to
Walker, at this early time, Martin was very emphatic about
not employing Brown.
In contrast, Walker has also related that he subsequently
pursued a Brown hire locally. I also note presently that
Walker had a later conversation with Martin, that he then re-
lated (only) as being the same thing. However, certain state-
ments attributed to Martin in the first reported conversation,
which would be a conversation placed as occurring in the
early part of the week beginning April 10, are both incon-
sistent with Walker’s continuing efforts locally at that time
(below); and are (at best) in some respects, far more con-
sistent with later events.
The General Counsel has also introduced in evidence
Walker’s letter of May 24 to International’s counsel (G.C.
Exh. 7) wherein Walker marshaled certain relevant observa-
tions, including report of a Walker conversation with Faulk
on April 25, below, but in which Walker makes no mention
of any prior conversation held with Martin. Moreover, as we
shall see, Lee’s recollection of his first background substan-
tially inconsistent with Walker’s above account of his
claimed early April contact of Martin. Martin was not called
as a corroborative witness in this (or prior) proceeding. For
the above reasons and other reason’s appearing hereinafter,
I simply am not persuaded by, and do not credit Walker’s
account of an early approach to Martin on Brown’s employ-
ment. Nonetheless, it is clear that Walker had both pursued
trying to get Brown back on the Papco job; and, in the in-
terim that he had referred Brown out to other jobs.
Walker thus relates more consistently and credibly that he
had next sent temporary Business Agent Scott Lapman out
there within 10 days of Papco hiring their first people, thus
about mid-April. Walker instructed Lapman that he was to
do everything he could to get Brown rehired. After Lapman
contacted Faulk directly, Walker recalls Lapman reported
back to Walker that in Lapman’s opinion it wasn’t going to
happen, that it was impossible; and, that Walker was not
going to get Brown back on the Papco job. (Lapman did not
testify in this proceeding.)
On April 26, Walker (next) personally drove to the paper-
mill jobsite in Georgetown, South Carolina. Walker talked
directly to Papco’s superintendent, Faulk, on that occasion,
but (again) to no avail. Walker recounts this time he tried
to play on Faulk’s mercy. Walker said of Brown, ‘‘you
know, the guy’s a nice enough guy—what the hell—why
don’t you give him a shot; and, I’ll explain to Brown that
if he comes out here he’s to keep his mouth shut and work;
and, if he messes up, then, you have the right to fire him,
and that’ll be the end of it.’’ Walker asked Faulk, ‘‘why
don’t you give him one more chance.’’ Walker said Faulk
simply replied, ‘‘I’ve got a boss and he’s instructed me what
to do, and that’s the way it’s going to be.’’ (Faulk did not
testify in this proceeding.)
After April the Union referred Brown periodically to 1-day
shutdowns with Huber Construction Company (Huber) out at
MacAlloy, South Carolina, where Huber made slag. (Every
Wednesday Huber would have a shutdown, which could last
10–12 hours.) Initially, Brown didn’t think that he was re-
ferred to any other contractor except Huber before referral
(allegedly belatedly) to Beasley on August 14, below. How-
ever, on cross-examination Brown acknowledged he was re-
ferred to Combustion Engineering (I find) on April 26.
Brown was referred to Combustion Engineering through
the Boilermakers. Thus, the Boilermakers’ business manager
called Walker and asked for six or eight men. Lapman and
Walker got the men together, and included Brown; and they
sent the men over to the Boilermakers. Walker has testified
(without contradiction) that Brown stayed on the job only 1
night and a day, before he quit. On April 27, Brown filed
the instant charge against the Union for its failure to refer
him to Papco.
Walker recalls that on May 25 he again spoke to Martin
about Brown. Walker relates simply that there was no change
in Martin’s position. Walker’s recollection was that at this
point Walker told Martin the Union would need a new letter.
Walker recalled he later instructed Lee to call Papco and tell
them that if they weren’t going to hire Brown, the Local
Union needed another, updated letter since that (December
22, 1984) letter was so old. Walker recalls that (union re-
quest) went on for probably 4 months, maybe longer.
Lee however contrarily related it must have been in July
that Walker instructed Lee to call Martin and clear the air
on this old not for rehire letter that was in Brown’s file, to
determine if Martin’s intentions were still as they were in the
past. Lee recounts he placed several calls with Martin’s sec-
retary, requesting unsuccessfully that Martin call Lee back.
Walker would explain any delay in his following up on a
request for a new letter in large measure because at this point
Walker was not only running Local 601, but International
had appointed him the president of District Council of South-
eastern States, with responsibility for the care of (then) 10
locals, including Local 601, and an area that covered the
States of Florida, Georgia, South Carolina, and Alabama.
Walker’s version of what happened thereafter is that after
being reminded of it by Lee, Walker had instructed Lee to
call Martin and to tell him that if he didn’t have a letter in
the hall’s office in 10 days, that Brown would be one of the
people (referred) in their next call. Lee reported back to
Walker that Martin very emphatically told Lee that there’s
no way you’re going to get him back on. When Walker in-
quired of Lee whether Lee had told Martin that the Union
had to have the (updated) letter, Lee said he did, and that
Martin said he would have the letter to them within a few
days; and the letter did come in then.
In contrast however, Lee’s recollection was that after a pe-
riod of several weeks or so Walker had again called Lee, and
Walker told Lee that they had to do something about this.
Lee also recalled (again consistent with Lee’s first recall, and
not Walker), that Walker instructed Lee to tell Martin that
he had to make up his mind to clarify the situation, or that
they were going to send Brown to work. Lee recounts that
he again tried to reach Martin, and this time left the message
with Martin’s secretary that he was going to have to tell ‘‘us
(Union) what he wanted to do.’’
Martin got back to Lee by phone. Lee relates (this time)
that Lee then told Martin just what he had been instructed
to say, namely, that by Walker’s efforts to get Brown on the
job and by talking to his personnel on the job, ‘‘we [Union]
realized what Martin’s wishes were, but that we felt like we
were in a position that we needed some clarification.’’ Lee
856 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
continued, without objection, that Martin then got irate. Lee
couldn’t remember verbatim exactly what Martin said, but
recalled he was very loud; and that there were several
expletives and colorful language involved.
Lee summarized, Martin was emphatic that under no cir-
cumstances as long as he drew breath and was president of
Papco should Brown be allowed to set foot on International
Paper Company property. Lee relates that Martin went into
an alleged Brown assault against Max Manasco (seemingly
the supervisor involved) back in the late 1970. Martin then
said he very definitely would not allow Brown on the prop-
erty; and ‘‘if we [Union] sent Brown, Martin [Papco] would
not hire him.’’
Lee recounts that he didn’t have an opportunity to say too
much in the conversation because Martin was really off the
handle. Lee also recalled that during the conversation Martin
told Lee several times that he had written this (December 22,
1984) letter; that it wasn’t for a year or for 5 years or any-
thing like that; the letter was for life.
Lee recalls he then said, ‘‘well, I don’t know’’; and he
then just told Martin what Lee’s orders were and ‘‘what we
[Union] had to have to clarify the situation so that we knew
without any shadow of a doubt what his position was.’’ In
the end, Martin agreed he would put a new (union-requested)
letter in the mail.
The new Martin letter to Lee (R. Exh. 4) is dated August
15, and provides:
Please be advised that [Papco] Inc. does not intend to
employ the above-named individual at our Georgetown
project, or any other job. Because of gross insubordina-
tion during which time the above person struck a
[Papco] salaried supervisor, we request that he not be
referred to our project.
The complaint does not allege there was any further un-
lawful failure of the Union to refer Brown before July 24.
4. Interim changes in the referral system
Walker sent a letter dated May 23 (G.C. Exh. 3) to Brown
(and all members) which set forth certain newly instituted re-
ferral procedures as follows:
This letter is to advise you that effective imme-
diately, you will be required to come into the hall every
Monday morning at 7:00 a.m. for job call. The ‘‘Out
of Work’’ list will be based on those who show up. If
you live 30 or more miles from the Iron Workers Local
Union No. 601 hiring hall, you may call in. If you are
working, please call and advise what company you are
with and the job location.
You are further advised that the Local is to have a
current address and phone number so that you may be
contacted for work.
. . . .
The above detailed information will be strictly ad-
hered to and if phone numbers and addresses are not
correct, and you don’t either come into the hall or
phone, your name will be removed from the ‘‘Out of
Work’’ list.
Walker’s understanding was that Local 601’s prior (log)
referral system had its origins in a court or Board pro-
ceeding. When Walker took over he had just gone through
a similar (hiring hall) situation with Local 272 in Miami; and
he had put a court-approved hiring hall system in place there.
After inquiring of International’s general counsel, whether he
could implement the same hiring procedures in Local 601,
Walker did so about 4–6 weeks later.
Brown relates and the Union accedes that as a result of
the May 23 letter the Local Union effectively did away with
the 30-day log, and used only a daily log. Thus under the
new rules that were then implemented the old 30-day book
was wholly eliminated. Local 601 continued to essentially
have a daily sign-in sheet for the members to come in and
sign as before; and, when the day’s log was exhausted, a
prior day’s log was (successively) used, as needed, to fill all
referrals. However, to accommodate complaints of member-
workers living in Columbia, South Carolina, that they
couldn’t get there to sign the daily sheet, the new system
provided that anyone living 30 miles or beyond could call in
and get their name on the list. (The time the employee called
in was recorded.) Brown lived in Charleston, within 30 miles
of the hall; and, he did not qualify to call in.
The time the hall opened for issuance of referrals was also
changed from 8 a.m. to 7 a.m. Walker explained that this
was done in order to thereafter get those referred on Monday
morning onto the job at starting time.
Brown compatibly recounts that the Local thereafter used
45 loose-leaf sheets of mimeographed paper (in place of
prior daily worklist) that provided a place for columnar data
entry of (I find) an applicant’s name, phone number, but also
columns for remarks and designation of four different quali-
fications for ironworker jobs. The list made provision for an
employee’s entry of any remark desired; and, for the employ-
ee’s designation of his individual qualifications in R, S, F,
and W, or as is more definitively revealed by the record pro-
vided for the individual’s check of qualification in Rebar
(rods); Structural (which included connector work); Finish;
and Welder (including specialized and/or rare heli-arc weld-
ing).
The above Walker initiated rules also explicitly stated that
an iron worker had to indicate his qualifications on the
sheet; and, that an employee would be referred only accord-
ing to his journeyman classification and his designated quali-
fications. Walker explained that a journeyman ironworker
supposedly does it all, but that’s not always the case. (Gen-
eral Counsel’s witness Kent’s experience has essentially cor-
roborated Walker in more material regard, namely, as to
bridge work, below.)
In contrast, Brown relates he felt he could do it all. Brown
asserts that he would usually just draw a line through it (all
the classification columns) asserting he did so to check all
of them, as he felt he was qualified to do any phase of it.
However, in that regard, Brown had alleged the changes ef-
fected in the referral system were illegal.
Walker relates (seemingly) that under prior hiring hall
rules if you declined a job you were supposed to go to the
bottom of the list. However, he also testified that he had al-
ways been of the view that a man’s refusal of a job was the
man’s prerogative. Walker testified that he has never done
that (dropped a man to the bottom of the list when he re-
fused a job) in the 18 or 20 years that he has been referring
people.
857IRON WORKERS LOCAL 601 (PAPCO, INC.)
The General Counsel concedes Brown’s charge (or affi-
davit), to the extent it raised allegation of changes being ille-
gal, on investigation, was determined to be without merit;
and, that the changes made in the referral system are not
subject of any allegation in the present complaint. Thus, the
recent changes that Walker made in Union’s referral system
are not presently an issue before me or the Board.
5. Case 11–CB–1793; the Beasley bridge job
a. Background
CRC, a nonunion general contractor, was awarded a con-
tract to construct the Mark Clark Expressway Bridge (bridge)
over the Cooper River (apparently) as a continuing, but sepa-
rate, part of an ongoing highway construction job. In any
event, Beasley initially bid to erect the steel on the Bridge,
but CRC elected to try to erect the steel themselves. Walker
concluded after seeing them try that CRC didn’t have the
necessary expertise to get the job done.
Walker relates that the Union had watched the Bridge job
real close. CRC set the first piece of steel up, which involved
balancing some 200–300 tons of steel on a 12-by-12 foot 18-
inch pier, about 150 feet in the air. As Walker described it,
CRC put the first piece of steel up on top of that pier; and,
then it just seemed like everything stopped. Though Walker
could only observe the job from a distance, Walker con-
cluded CRC had problems. Walker researched the records
and found out that Beasley had bid the job originally. Walker
then contacted Beasley, and two other union contractors; told
them that CRC had problems; and, urged the union contrac-
tors to contact CRC immediately. After 4–6 weeks (and at
least by July) CRC had subcontracted the Bridge steel erec-
tion to Beasley.
Called as a witness by the General Counsel, Joe E. Kent,
Beasley bridge project superintendent, confirmed that he felt
there was poor management in erecting the steel, as CRC
had started back in April–May, and CRC had only one stage
of a couple hundred tons of steel up in that length of time.
Kent has been in the business for 31 years; and, he has
been working on bridges for the last 10, 11 years. Kent is
a journeyman ironworker; and he is a member of Savannah
Ironworkers Local 709. Kent confirmed Beasley contracted
with CRC to provide the labor to erect the steel; and, that
he laid out the job to use union labor, to which he is com-
mitted.
Kent also confirmed CRC had kind of messed the job up
(on the ground). They had some of the iron loaded, i.e.,
made up on the ground in sections, in parts of sections; and
in pieces. Kent knew he would have to straighten that mess
out, raise it, and get it connected first.
Kent planned from the start to use union labor; and, he
knew he would get all his men through Ironworkers Local
601. In that regard, Kent knew (under the master agreement)
he could bring in regular Beasley employees for up to 40
percent of the required work force, though he also knew he
would have to have those he brought in referred to the job
through the hall. The remainder were to be referred from the
Local hall.
(1) The prejob conference
Kent attended a prejob meeting in mid-July with Lee and
John Shelet (but not Walker, as Lee and Walker confirm,
below), at the Holiday Inn, in North Charleston. Shelet is
employed as a deputy director of the Institute of the Iron-
worker Industry, or ‘‘Triple I’’ as it is known, a joint union-
management organization that (seemingly) promotes Iron-
workers (trade or industry). Kent otherwise recalled credibly
that they mainly discussed in general the type of people that
Beasley would be needing; how many; and the (anticipated)
length of the job.
Thus Kent informed the group that the contract was for a
year; that he worked four 10-hour days; and, that he hoped
to be out in 9 months. (Kent explained at hearing that Hurri-
cane Hugo had set them back to the point the job was only
about home, or done at time of present hearing.) Kent re-
called that he also informed Lee that he would be bringing
in Ellis and Fair as his key people; and, Kent testified ini-
tially that he had said the others best be connectors.
On other occasion Kent related that when he called the
hall, he called for connectors and bolt-up people; that he may
not have then specifically said or stipulated to Lee, that he
needed four or five or six connectors; and, that he might
have told Lee he needed some ironworkers, but Kent then re-
iterated that in a roundabout way he had said he needed
some men that’s going to have to be connectors. Kent other-
wise testified that Kent had figured the Union would know
he needed connectors, because on this job, that was the first
thing that he would start doing, more or less.
Walker relates in general that he had constant conversation
with Beasley’s president about Beasley’s hiring needs for the
job. However, Walker was out of town at the time the
Beasley prejob meeting was held. Thus Walker relates that
he did not attend the prejob conference as had been (erro-
neously) recalled by Beasley’s superintendent, Kent. How-
ever, Lee reported on the meeting to Walker that very same
night.
Lee confirmed that at the time the Beasley job came into
town, Lee was business manager and responsible for the
Union’s dispatch of men. Lee recalled he had first learned
of the Beasley job in late June, early July, right after Lee
had come into office by Walker appointment; and, that the
Local Union had probably received the call from Jay Rollins,
president or vice president of Beasley’s bridge division. In
any event, Lee confirms that he represented the Union at the
prejob conference that was held before the first dispatch of
men to the job. Apart from confirming that Shelet was also
present, Lee has more definitively recalled that Rollins, and
Superintendent Kent were there for Beasley, as was Gill Bai-
ley, the timekeeper and engineer on site.
Lee essentially corroborated Kent that at the prejob con-
ference, they had discussed more the quantities (of men
needed), than specific type. Lee thus recalled that Rollins
was concerned with the Union’s ability to man the job; and,
they said basically, that this is a different sort of work; that
it’s not every day that a bridge comes to town; though there
was some concern generally stated also as to whether Local
601 would be able to supply the type individual that would
be needed to man the job.
(2) Walker’s meeting with Kent
Walker recounted credibly that when he got back in town
a day or so later he went by the job and spoke directly to
Kent. Walker recalled that at that meeting Kent had told
Walker that Kent wanted five connectors. Kent’s request
858 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
wasn’t deemed unusual by Walker, as, from his own experi-
ence, Walker would have done the same thing, for reasons
that are more conveniently to be addressed further below.
(3) Kent’s first phone call for men placed with Lee
Lee supports Kent and Walker recollections above that
Kent had initially wanted all or five connectors. However,
Lee does so on the basis of certain Kent statements made to
Lee that Lee has recalled were made in a first call (for men)
phone conversation that Kent later had with Lee. Lee recalls
that the first call for sending people out to the job came in
over the phone on or about July 24.
Lee is sure he took the call from Kent; and, Lee confirmed
that it was for (all) connectors. Thus Lee recalled (credibly)
that he had questioned Kent on this because ordinarily Lee
did not receive a call for all connectors; and Lee relates that
Kent had then explained to Lee the reason why he was call-
ing for nothing but connectors. Thus Lee relates Kent had
told Lee that the (initial) work that they had to do was clean-
ing up behind CRC; and, from time to time, it would involve
sending the whole crew up to do connector type work. Kent
told Lee that he wanted every man in that gang (clarifying)
just to start with, to be able-bodied to go up and down as
needed. From his own experience, Lee knew that they
(Beasley) would also be needing quite a few bolt-up hands,
and a yard crew (later).
(4) The connector work
In explaining why he had readily understood Kent’s initial
request for five connectors, Walker related that connectors
are generally young and agile; and (when Walker managed
a job), he felt that he could always get the hook-on man and
the bolt-up man, but that if he (initially) got five connectors,
then if one guy misses time and lays out for a problem, he
had another connector he could send up there. (Kent con-
firmed generally that he preferred younger, quicker men to
work around the steel when connecting.) Moreover, Walker
also recalled that Kent had said (of this job) in their con-
versation that in a lot of cases with the 100, 150-ton lifts (to
be made) that all the men might hook on the barge, but then
he would send them all to the top; and that Kent had said
he wanted people that could get up there.
Kent confirmed first generally, we have some awful big
steel and we put it together in sections that can go as much
as 175 tons. Once that piece of iron leaves the barge hooked
onto this big floating rig out there in the river, it goes top-
side to make a part of the bridge. Connectors are men work-
ing up on top and on the bottom to make (connect) the bot-
tom and the top cords of that bridge together. The bottom
cord of the bridge was roughly 165 feet high, give or take
a foot or two with tide and what not, with roughly another
60 feet to the top cord. The men (working) on the top stood
on the bridge itself.
The (raising gang) men working on the bottom were on
a barge, hooking on, and running a tag line on the piece of
iron (to be raised). A tag line is a 1-inch manilla rope tied
onto the end of the piece of iron. The tag line is secured to
a part of the barge, and it is gradually fed off to keep the
piece of iron straight, to guide it, and to keep it from spin-
ning in the air. In general, once that iron gets in the top, it’s
up to the (raising gang) foreman what the bottom men then
do. If a foreman doesn’t have anything else on the barge for
them to do (e.g., further assembly or making ready of iron),
the foreman can send them to the top to help as connectors,
to help bolt up, or to work with a yard crew (below).
Walker had personally worked as a connector for 10 years.
Walker has testified categorically that there is a practice in
the industry on connectors’ work; and it is, ‘‘It’s a young
man’s game.’’ Walker compared the connector work in
building and bridge work as follows: (a) In a building you
might put up a column, an H beam that’s 8 or 10 inches
square, and the connector might have to climb 60 feet to the
top, to make, or connect, another beam going from that col-
umn across to another. (b) In general the structure of a
bridge is composed of a top, bottom, and a diagonal cord.
Walker recounts that in a bridge the top cord is put in and
you hand (in context hang) a diagonal down from the top
cord.
Walker then testified a connector might have to get on that
diagonal and slide down to the bottom of it to make the bot-
tom cord with nothing stopping him when he gets to the bot-
tom other than his strength; and then maybe put a plug
wrench in the hole and stand on the plug wrench to make
that bottom cord. Walker repeated, with a firmness evidenc-
ing both his own personal experience and his conviction (at
least on the described connector work) that it’s a young
man’s game.
Walker continued that on this particular bridge job they
also had to install 128,000-inch-and-a-quarter body bound
(no tolerance) bolts. Connector (part of such) work involved
driving a pin in almost every hole in order to get the bolt
in. Walker relates the connector used either a 10-pound mal-
let, or ‘‘hell dog’’ (riveting gun) to first drive pins to align
the steel. Walker otherwise described the particular work in
question as involving driving an inch and a quarter pin in
structural steel that’s like 9 inches thick, in temperature
(then) of 100 degrees, and the steel even hotter. However,
not all such pin and bolt work on high is done by connec-
tors. Some is done by a separate bolt-up crew as described
by Lee; and in different manner as related by Kent.
Lee confirmed that connectors work in a raising gang; and,
the raising gang erects the structure in sections or pieces. Lee
recounts a bolt-up crew comes behind the raising gang, and
sticks the bolts. Though they may also drive pins to align
pieces and stick the bolts; they use impacts to torque the
bolts to a specific torque. Not only is bolt-up work distin-
guished from the connector work, but bolt-up work may be
done on the ground as well as on top. The raising gang fore-
man, typically, will send a list of what he wants next to a
yard crew, which may be to put several pieces together (on
the ground) into a section, or it just may be (a call for) so
many pieces.
On this job Lee thought that the majority of the steel came
in on trucks; and, that it was unloaded at the MacAlloy Steel
Mill location, where Beasley’s (eventual) yard crew worked
and where the office is located. A yard crew has responsi-
bility of unloading trucks as they come in, sorting the iron
(pieces), putting it in locations and/or assembling it (in sec-
tions) as needed. They are responsible for filling the (raising
gang’s) lists. From there the iron in pieces and/or assembled
section is loaded on a barge and transported to the bridgesite
for raising and connection.
859IRON WORKERS LOCAL 601 (PAPCO, INC.)
Kent has also seemingly differentiated connector pin and
bolt work with the (high) pin and bolt work of bolters. Thus,
Kent described that bolters, more or less, have a float (which
is a 4-foot by 6-foot OSHA standard piece of plywood with
slats nailed around it) to work off of. A float is large enough
for two people, one to stick a bolt, and one to put the nut
and washer on. Materially, Kent otherwise confirmed that
during that first period he wanted every man to be able to
go up and connect.
Moreover, any issue of the number of certain requested
key personnel aside, Kent has confirmed materially that all
the other ironworkers referred and employed during the first
10 days all did connector work because Beasley didn’t have
anything else but connecting work to do at that time. Kent
thus testified that during that first week connectors were up
on the top and bottom cord connecting the side of the bridge
which consisted of a top, bottom, and a diagonal cord.
Walker testified compatibly, that he knew that there were
going to be other ironworker referrals on the Beasley bridge
job because Kent had also told Walker to give him a little
chance to get the problems straightened out, and Kent would
be hiring people right along to do bolt-up and yard work.
Walker testified that yard work is viewed as somewhat easier
work; and they always tried to save that for older members,
that’s pulled their time. In any event, Walker, Lee, and Kent
(I find) have fairly and credibly described the initial bridge
work required on this job, particularly because of the status
of the job when Beasley took over, as at first primarily in-
volving harder connector work.
b. Lee’s July 24 referrals
It is uncontested that on July 24 Brown went to the union
hall and signed the daily out-of-work list (U. Exh. 1) in
fourth position, behind Tommy Steam, Zander Burrows, and
Bill Luther. The daily referral list then in use stated explic-
itly, ‘‘You must indicate your card classification on sheet.
You will be referred only according to your Journeyman
classification and or qualification.’’ The daily work list for
that day provided the R, S, F, and W columns for checking,
which the parties stipulated stand for: rebar, structural (which
I have found materially includes connector), finish, and weld-
ing. Though Brown asserts he can do all that work (at least)
on July 24, Brown did not check or even draw a line through
any of them, as Brown otherwise asserts he did regularly.
At that time, Brown knew that Beasley had obtained the
bridge job over the Cooper River. Insofar as bearing on re-
quired connecting, Brown vacillated somewhat in stated un-
derstanding of the arrangement. Initially Brown related that
Beasley was a subcontractor for CRC. Brown then stated he
knew Beasley wasn’t really starting new, that they were tak-
ing over from another (nonunion) contractor (CRC) who had
started the work. Brown later acknowledged Beasley took
over on the contract following CRC; and, that Beasley was
using their (CRC’s) equipment. In material time, Brown
knew that Beasley was going to be calling the hall for men;
and (I find) he reasonably knew that Beasley was going to
immediately need (at least) some ironworkers to do the phys-
ically hard and dangerous connecting work described herein.
Brown was fourth in chronological placement on the July
24 daily out-of-work list. Apart from two men (James A.
Ellis and Charles E. Fair) who were brought (permissibly
under the contract) from outside the area by Beasley’s job
superintendent, Kent, and referred out that day, the Union
also referred five men out that same day (Friday, July 24)
to the Beasley jobsite, four of whom Beasley hired on July
26 (Monday), and one on July 27 (Tuesday). (I find that it
is most likely from credible evidence of record that Curtis
W. Barnette was referred and was to report at the same time,
but reported a day later.) The five, with actual hire date
shown are:
July 26 July 27
William R. Burrows Curtis W. Barnett
David A. Bush
Laurice W. Martin
Elwood Wayne Mills
Walker relates that Lee, who knew the local men’s capa-
bilities better than Walker, had actually made all the initial
referrals to the Beasley job. Walker added that he supported
what Lee did 100 percent.
Walker otherwise candidly conceded that Walker had also
wanted young men to be referred initially for that job. Walk-
er testified that though he didn’t make the final decision the
guy he appointed did, and Walker had approved of it. Walker
also testified that he still thinks Lee made the right decision.
Walker explained that the union company had just taken
over a nonunion job that was in a mess; and, they needed
the job to go out there. They needed the initially referred
men to act like professionals on that job; they needed them
to not miss a stroke; they needed young people to make it
happen; and that’s why those young guys were picked.
Lee confirmed that he decided on July 24 which people
to send out. Lee recalled that he first dispatched all the peo-
ple that were requested by the company. Shown the daily
work (referral) list of July 24 (R. Exh. 1), and those referred
that day (G.C. Exh. 2), Lee confirmed that Ellis was re-
quested to work in the raising gang. Notably, Lee considered
Ellis a connector. Kent confirmed, in that he identified Ellis
(with hire date of August 25, 1983) as an ironworker out of
New Orleans Local 58 who had worked for him in other
jobs, and who worked as his regular signalman. As such,
Ellis talked (signaled) from the top of the bridge to the oper-
ator of the floating rig on the water that raised the steel.
Although Ed Cross does not appear on Beasley weekly
employment list of July 31, as best Lee could recall, Ellis
and Cross were the first key men that Lee had referred out.
Notably, Cross is a Local 601 member and a Beasley hand
(employee) who regularly travels with Beasley. Lee couldn’t
recall if Charles E. ‘‘Eddie’’ Fair also came in at first, or
later, but Lee otherwise confirmed that Fair (on the list with
hire date of July 27) was requested, and Fair worked as rais-
ing gang foreman to start with. Kent confirmed that Fair, an
ironworker out of Birmingham Local 92, had similarly
worked for Kent before, was brought in as supervisor fore-
man on the 4600 that was used to raise the steel, and (later)
to load steel (at nearby yard) on a barge for transport back
to bridge location for (similar) rig raising of steel and con-
nection. Lee had recollection of another individual who was
not on the employment list that he nonetheless recalled he
had initially referred at the Company’s request, namely Floyd
McNeese out of Nashville.
Be that as it may, Lee then initially referred five other in-
dividuals on July 24, for reasons stated below. Four were
journeymen (and connectors), and one an apprentice. None of
860 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the five referred appeared on the daily list before Brown.
The next referral on that job did not occur until August 14.
Kent testified that he knew the age and qualifications of
Fair and Ellis, and knew they could do the work. Kent con-
firmed that the remainder of the employees (referred) were
all relatively young men, who were qualified and did the job
for him.
Kent more specifically relates that with the men the Union
referred he first erected the pieces that CRC had made up
(in sections). Then, what CRC had loaded in single pieces,
he put up a piece at a time on the south half of the bridge.
Next, he loaded other (seemingly) CRC assembled steel at
the yard on a barge and brought it up there and finished up
the other half of the Bridge. At that point Kent effectively
had the ground mess straightened out; and, he then started
his yard crew at MacAlloy and, more or less, got his job
started rolling in.
(1) Observations of Lee’s July 24 referrals to Beasley
Of the five (nonkey) personnel referred, only two, Martin
and Bush, appear on the daily work list of July 24. It is un-
disputed that even they had less chronological eligibility on
the list than did Brown. (Brown was the fourth individual to
sign the daily out-of-work list for July 24 (U. Exh. 1); Mar-
tin was sixth; and Bush, ninth.) The names of the three oth-
ers referred, namely, Barnette, William Burrows, and Mills
do not appear on the July 24 list at all.
Although Barnett’s name did not appear on the July 24
list, Brown knew Barnette; and, Brown knew that Barnette
was both a qualified connector and younger than Brown.
Barnette had worked with Brown before. Brown had Barnette
do connecting work, acknowledging that Barnette was a pret-
ty good hand; and conceding that Barnette could do just
about anything. Indeed, in the end, Brown has related that
Barnette had worked on different jobs with Brown, who at
times had Barnette do all phases of connector work.
Brown also knew (the referred) William Burrows, who had
worked with Brown before, but it was more in a welding sit-
uation and a repair job. David Bush had never worked with
(under) Brown as foreman, but Brown thought Bush had
worked on a Huber job with him, prior to this (last Huber)
job, probably in 1989, though also only on welding work.
Brown relates that on jobs Brown worked with them (Bur-
rows and Bush), they had not done connector work. It further
appears that Brown didn’t know whether Burrows and Bush
could do connector work. Brown knew that the three
(Barnette, Burrows, and Bush) were each younger than
Brown. Though Brown didn’t know Barnette’s or Burrows’
exact age, Brown knew that (William) Burrows was really
young, probably in his mid to late twenties. Brown didn’t
personally know Martin and Mills at all.
Shown the out-of-work list, Brown otherwise acknowl-
edged that there were other people on the list besides Brown
who didn’t get referred to the Beasley job that day. Indeed,
there were three who signed the list even before Brown,
none of whom were immediately sent out to the job. Brown
didn’t know whether any of them could do connector work.
Brown knew Steam, who was the first to sign the July 24
list, and had checked himself as qualified under S, was as-
signed as the steward, but referred out there at a later date.
Brown didn’t know whether (Z) Burrows, who had signed in
second position before him and checked all columns, and
Bill Luther, who had also signed before Brown in third posi-
tion, but had not checked any column (or even if any of the
10 of 12 others who signed after Brown and were not re-
ferred out) were passed over. Brown explained he didn’t
know whether it was their own choice not to go, or what.
Walker testified generally that the three individuals who
had a superior position on the list to Brown, were not re-
ferred to the Beasley job for similar reasons, asserting relat-
edly that each of the three names above Brown were as
qualified as Brown, though (only) the first two (Steam and
Z. Burrows) had placed a check in the S column that could
indicate connector.
Walker recalled specifically, and Lee corroborated that
they had wanted to send Steam out initially as Local 601’s
steward representative for the job (on Lee’s recommenda-
tion), but felt they couldn’t send him until 1–2 weeks later,
because Steam, though checking Structural, wasn’t a con-
nector.
In that very regard, though Steam had signed in first on
July 24, and, unlike in the case of Brown, there appears a
check in the Structural column that includes connector, Lee
has testified unequivocally that Steam was not a connector,
and that he did not want to be considered a connector. Simi-
larly, Lee identified Z. Burrows, in second position and who
had also checked the S column, as approaching retirement
age. Lee testified specifically, and without contradiction, that
he felt Z. Burrows would have been upset with Lee if Lee
had referred him to the Beasley job as a connector. Walker
personally knew the third, Luther, was in his late fifties or
was even 60; and, that Luther had emphysema real bad, and,
couldn’t be sent. (Brown confirmed (Z) Burrows as probably
about his age; and, Luther, probably 7 years older than
Brown, which Lee confirmed.) Walker didn’t know the par-
ticulars of most of the others.
Of those names appearing on the July 24 list after Brown,
there were only three others (David Bush, Cleeve Cooper,
and Gene McMahan) who had placed a check in the S col-
umn on the July 24 out-of-work list. Lee referred Bush, but
not Cooper or McMahan. Lee explained that Cooper was
also approaching retirement age; and, that McMahan, a
young man who was a qualified connector, whom Lee
thought would want the connector job at Beasley, didn’t
want it.
In general summary otherwise, Lee has essentially testified
(without any apparent contradiction, and in any event
credibly) that the others (on the July 24 list) were passed
over either because Lee knew they were not connectors; or
they had told Lee they didn’t want to connect anymore; or
because (at least) one, David McCracken, who was a con-
nector, but hadn’t checked in that day in column S (or other-
wise as a connector) had said he didn’t want to go to the
Beasley job as a connector. Under hiring hall practice, al-
though each day brought a new out-of-work list, an em-
ployee declining a referral did not lose his position on that
(or earlier) list, e.g., for referral to the Beasley job on iron-
worker work other than connecting, when it became avail-
able. Lee has confirmed relatedly that any number of those
on the list(s) not initially sent were later sent to jobs that
they felt they could do.
Lee testified, again without apparent contradiction that the
names of those referred out to the job, which did not appear
on the July 24 list, would have appeared on a prior list that
861IRON WORKERS LOCAL 601 (PAPCO, INC.)
he used after exhausting the names on the list of July 24.
Brown didn’t remember if he had personally indicated on the
July 24 daily out-of-work list that he was qualified for con-
nector work. In point of fact, Brown had not by check, nor
even (arguably) by drawn line, indicated on the July 24 list
that he was qualified for connector work. The General Coun-
sel would then have it observed that Martin, who (like
Brown), was on the July 24 list and who had not checked
any qualification column (unlike Brown) was referred, a con-
sideration that is to be addressed further below. In passing
however, I note the above uncontested testimony of Lee that
McCracken, who also hadn’t checked off the S column that
day, and who was also known by Lee to be a connector,
when asked, specifically told Lee he didn’t want to be re-
ferred to the Beasley job as a connector.
In passing I otherwise presently note and find that al-
though Brown appears to have specifically questioned the
Union’s referral of Mills because Mills name was not on the
list Brown acknowledged that he did not know Mills; and
Lee’s credible testimony of record reveals convincingly that
Mills at the time was an apprentice, who was not required
to sign that list.
The nonreferral of Brown as a connector presently aside,
it appears uncontested of record from credited Lee testimony,
that the names of Barnette (whom Brown personally knew to
be a capable connector, above) and William Burrows ap-
peared on an earlier list and were reached by Lee as a quali-
fied connector for referral upon Lee’s exhaustion of the July
24 list, with (at best) only the situation of the last name on
the July 24 list, that of Okie Wells, that would appear other-
wise not to have been definitively addressed.
(2) The issues of Brown’s and others’
connector qualifications
On July 26 (Monday) Brown went to the union hall and
talked to Walker in his office about the Beasley referral.
Brown asked Walker why Brown wasn’t referred out to the
Beasley job. Brown relates Walker told Brown that they
called for five connectors; and, Walker thought Brown was
too old to be a connector on that job. Brown acknowledged
that at the time the Beasley job came in and/or when the
calls were made on July 24, Brown didn’t know that Beasley
was requesting (all) connectors; and he probably first learned
of that during his conversation with Walker when Brown
asked why he wasn’t referred.
Lee referred young men who were connectors whom Kent
confirms did the job. In material time, Brown was 56,
claimed to be in perfect condition, and asserts he thought he
was able to do all ironworker work, including connector
work. Brown asserts that he thought Lee knew Brown could
do connector work.
Lee acknowledged that he passed over Brown, and that he
did not ask Brown before he did so. However, Lee testified
that it was not because Brown hadn’t checked in under the
structural connector column, but rather, that he passed over
Brown because, based on Lee’s experience, Lee didn’t con-
sider that Brown had ever been a connector. Thus, Lee has
testified that he has known Brown for better than 20 years;
that Lee had never known Brown to do any connecting work;
that Brown had never worked on any connector jobs where
Lee had referred him; and, that to his knowledge, Brown had
never worked on any connector jobs out of this Union. There
was much testimony then elicited as to when and where
Brown had worked as a connector, not without some confu-
sion, particularly in regard to jobs on which there was con-
necting work, though Brown did no connecting work on the
job or such jobs where Brown was a raising gang foreman
(or as a general foreman pushed a raising gang), as opposed
to general foreman or miscellaneous foreman (where he did
not); and, what Lee reasonably knew thereof.
(3) Brown’s connector experience; and Lee’s
reasonable knowledge
Initially Brown recalled that the last big job that Brown
worked on as a full-time connector was in 1971, on a power-
house in Mastonia on a job out of Savannah, Georgia (Local
709). Brown also then related generally that he had done
some other small connector jobs for a day or two. Brown
then recalled, again (apparently) both out of Savannah: (a)
working on a six-story chemical plant for Porter-Huggins in
probably 1975–1976, though Brown has later recalled that he
had worked on the job (seemingly, in all) probably for sev-
eral weeks to its completion; and (b) in the seventies, had
worked as a connector on a powerhouse for Georgia Power
and Light at Baxter, Georgia. However, Brown then later ad-
ditionally recalled that in the early seventies he had left the
above full time Mastonia connecting job, to go to work as
a connector for American Bridge Co., on a bridge being con-
structed between Philadelphia, Pennsylvania, and an
(unnamed town in New Jersey), where Brown related he had
worked on the bridge for 2–3 months, and as a connector (al-
beit somewhat ambiguously as to time worked as a con-
nector).
Nonetheless, Brown has testified that in 1989, though he
was 56 years of age, he thought he was able to do connector
work; and, Brown believed that Lee, whom Brown had
worked with, and known for 20 years, knew Brown did con-
nector work. Indeed Brown then asserted that the last time
he was referred by Lee out to a connector job where he did
connector work was just a month ago, on an 1800-foot TV
tower for Structural Steel Technology (SST), where Brown
asserts he put a wave guide on Channel 24.
Brown impressed me as being a generally credible witness.
However, in this instance, Brown’s later testimony proved to
be not very convincing. Brown initially related, e.g., that he
worked on that (recent) job for a couple of weeks, though
on cross-examination Brown less surely recounted he was
there the better part of 2 weeks, 6–10 days, then adding he
was not sure. Brown acknowledged that Lee had referred
him out to that job as a union steward.
Brown otherwise related generally that some of the con-
nector work on that job was on the top and some on the
ground. However, Brown then appeared at best confused to
point of not recalling (if not both evasive and inconsistent in
responses) when Brown was directly questioned about the
amount of connector work that Brown had actually done on
that job. Apart from the strained or imprecise recollection of
what connector work he had purportedly only recently done
on this job, Brown initially related that for at least a week
of it (the job) he was on the ground, only to later assert he
had worked mostly in the air. I did not, and do not in re-
view, find this testimony of Brown’s claim of a recent refer-
ral to a connecting job and doing connector work on it, per-
suasive; especially in the face of Lee’s more consistent, cred-
862 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ible testimony that it was not a connector job, and other fac-
tors considered below.
In confirming that he has known Brown for better than 20
years, in regard to Brown’s qualification to do any perform-
ance of connector work, Lee has testified in contrast, sever-
ally, that: Lee has never known Brown to do any connector
work; to Lee’s knowledge, Brown had never worked on any
connector jobs (in context, as a connector) out of this union;
Lee had never heard of Brown working as a connector in this
or any other area; and Lee had referred Brown to none (as
a connector).
In regard specifically to Lee’s referral of Brown to the TV
tower job, Lee testified specifically that the recent SST job
was not a connector job; and that on the three occasions that
Lee was on that job conducting business Brown was always
on the ground. Lee related of that job, and without any sub-
sequent controversion, that he received a call from Brown,
requesting that he (Brown) be replaced on the job as steward.
Lee recounted that Brown had told him on that occasion that
a pre-existing foot injury was giving him some problems;
that they (seemingly, SST) had to ask him to go in and do
a little work; and Brown wasn’t able to do that, as he didn’t
trust that foot.
Lee otherwise testified that he had worked on several jobs
with Brown that required connector work. Indeed, Lee re-
called working as a apprentice in 1969 on a C/A–5 airplane
hanger at an Air Force base where Brown was general fore-
man. However, Lee testified that it was not Brown’s respon-
sibility on that job to do any connector work; and, that if a
problem came up, that Brown would not necessarily have to
go up; and relatedly, Lee didn’t recall Brown climbing any
rigging on that job.
Lee then recalled (volunteered) an occasion that Lee had
worked more recently for Sound Steel Erectors (SSE) in
1984 as a connector in the construction of certain cranes for
Camron Corp. (CC), where Lee (first) related Brown was the
general foreman or foreman. However (again), Lee testified
that it was not Brown’s job (as whatever foreman) to do any
connecting on that job. Lee added generally that there were
still more jobs on which he had worked with Brown, but on
none did Brown do connecting.
While sequence and identification of jobs worked by
Brown in the period of 1980–1984 are anything but clear and
precise in record reference, nonetheless, it appears that in re-
buttal Brown had then recalled and related that Brown had
left the Papco job in April 1980 for the CC container crane
job, which (if not including another earlier crane job) in-
volved SSE construction of 10 cranes. In any event Brown
then recalled that later in 1982–1983, after SSE had come in,
Brown (seemingly) asserted he had worked on a raising gang
for SSE until the job finished. Brown further related that in
the fall of 1983 and through mid-1984 he worked (I find) as
general foreman for SSE in construction of a 500-ton crane
in (apparently) the (Charleston) navy yard. (Though on cross-
examination Brown, on one occasion asserted he was a rais-
ing gang foreman in 1984, on direct Brown had stated, and
on further cross-examination confirmed that he was a general
foreman for SSE in 1984.) Brown also confirmed that Lee
had worked with Brown on the navy yard crane job, and on
earlier crane jobs.
Brown otherwise asserts generally that he has worked rais-
ing gangs before. In that regard, Brown testified that the ma-
jority of a raising gang foreman’s work is on the ground, and
that it involves getting the iron laid out and sending it to the
top. However, Brown also relates that occasionally the holes
are off, or the iron won’t fit. According to Brown’s view of
the raising gang foreman’s responsibility, and in any event
the way Brown has testified that he always worked such a
job, it is necessary for the foreman to go to the top to see
what the problem is (especially when the connector men get
high to the point they can’t be heard on the ground).
Brown testified specifically that in 1984, but as (I have
found) a general foreman, there were numerous times that he
had to go high to correct problems (on the navy yard crane
job), e.g., trouble with the pins; and, that he had climbed
steel (initially to do so) though he had also used the elevators
and stairs when constructed and available.
Lee subsequently testified in rebuttal that there were two
different SSE jobs, namely, the navy yard job and the earlier
crane jobs. Lee confirmed that on the SSE navy yard job,
Brown (as general foreman) did push the raising gang. How-
ever, Lee testified in apparent rebuttal of any claim of Brown
to the contrary being advanced, that on the other (earlier)
SSE crane jobs Brown was a miscellaneous foreman, and as
such did not have responsibility to push the raising gang. I
credit Lee’s recollections generally in these matters; and, I
further find that if Brown had done any earlier pushing of
connector work on cranes it was reasonably unknown to Lee.
On rebuttal cross-examination Brown acknowledged that
he had never worked on connector work on a job where Lee
had (also) worked; and, that on occasions when Brown and
Lee had worked the same job, Brown had always worked in
supervision. Equally significantly, Brown acknowledged on
cross-examination that as a general foreman (after viewing a
problem) he then had someone else do the required con-
necting work.
Weight of the above and other similar evidence of record
warrants finding I now make that on the record before me
Brown had not worked as a regular full-time connector for
well over 15 years; and then not out of his own local, nor
within the knowledge of Lee. Moreover, Brown had not
worked in supervision involving connector work for about 5
years, and even then Brown was not involved in doing actual
connector work himself.
Brown later acknowledged, and in light of the above find-
ings thus only the more revealingly, that at the time of the
Union’s July 24 referrals to Beasley he didn’t understand or
believe the Beasley call was for five or for all connectors on
this job. Relatedly, Brown admitted that he probably did say
something to Walker to the effect that you didn’t start a job
off with five connectors and there had to be others (in con-
text, work other than actual connecting work).
Moreover, Brown has related that he believed his specific
statement made to Walker on that occasion was that calling
for five connectors was just a Beasley gimmick or ruse to
get around hiring older people, to get around to hire who
they wanted on the job, or to get certain people (out) on the
job. (The applicable master agreement provides the parties
will not discriminate against workers on the basis of age.)
Though not recalling he had actually said it, Brown in the
end testified no less significantly that he believed some of
the Beasley work didn’t involve being connectors, asserting
that there were people working on the ground, on the barge,
and what have you.
863IRON WORKERS LOCAL 601 (PAPCO, INC.)
Walker’s version of their conversation on July 26 is that
when Brown had asked Walker why they were not sending
him to that job, Walker had told Brown, ‘‘We’ll get you out
there, hang tight.’’ Walker also told Brown, You know
they’re calling for all connectors until they get this thing
straightened out’’; and that Walker then jokingly had said to
Brown ‘‘you’re just like myself, you’re getting too old to
connect and you know that.’’ Walker repeated, ‘‘Hang tight;
and we’ll get you out there.’’ Walker also told Brown, ‘‘The
next [time] they call, you’ll be in that crew’’; and, Walker
has testified that Brown was offered the job on the very next
call, on August 14, but Brown didn’t accept the referral.
(4) The July 26 incident involving fatalities
On the same day, July 26, there was an accident on or
near the bridge. Three men who worked for CRC went down
through apparently one of the piers. Two were killed and a
third was (at least) injured seriously. (Lee confirmed relat-
edly the two men who were killed and one who was injured
were working for CRC within several hundred yards of
where Beasley’s men were working, but not on the bridge.
Lee knew they were not ironworkers, and assumed that they
were carpenters, who were working in the air on forms,
pouring concrete and placing reinforcing bars.)
The news media promptly picked the incident up, and
there was an ongoing daily coverage of it on television and
in the newspapers. Brown recalled there was also coverage
about safety violations and certain investigations that were
going on, including later on the circumstances under which
one inspector had mysteriously disappeared.
c. Brown’s subsequent refusals of referrals to the
Beasley bridge job
(1) Related contentions
The General Counsel has understandably conceded that the
theory of a prior union responsibility with regard to the al-
leged improper nonreferral to the Beasley jobsite on July 24
ends with Brown’s rejection of Respondent Union’s two re-
ferrals (below) made on August 14 and 15, because at that
point Brown had clearly rejected a referral to the job (as a
bolter). Nonetheless, the General Counsel would have it ob-
served that in the interim and before the Union’s offered re-
ferral on August 14, namely, on August 4, Brown had filed
the instant charge in Case 11–CB–1793 alleging that the
Union had unlawfully failed to refer him to the Beasley job.
TheUnion primarily defends the earlier nonreferral of
Brown on the basis that Beasley needed, wanted, and had
called for (only) connectors to begin this job; and, Brown
was not qualified to do the indicated connector work that
was to be immediately required of every man initially re-
ferred to that job. Union has additionally asserted that Brown
would have as immediately lost interest in a referral to the
Beasley job, essentially by his own admission, from the time
when the troubled job gained additional notoriety momentum
from the untimely deaths of construction workers first pub-
licly announced about midday July 26.
Contrary to the Union’s contention that Brown wouldn’t
have taken a referral from almost the start, Brown asserts he
didn’t become frightened for his safety right after the acci-
dent happened, but only (sometime) in the days after that
when it came up that an involved highway inspector was
missing under suspicious circumstances; and, when he had
observed others (ironworkers) back in the union hall talking
about how dangerous the job was, and saying that they didn’t
care for safety, including Barnette. Barnette, who had worked
under Brown before, had been referred to the Beasley job
early, but only stayed on the job a day or two.
In this regard I presently credit Brown that at least in gen-
eral, he would have taken a referral on July 24, though I has-
ten to add I do not wholly credit him otherwise as to his as-
serted reasons for later being afraid for his own safety on the
Beasley job in explanation of his repeatedly refusing refer-
rals.
(2) The Union’s referrals of Brown; and
Brown’s refusals
It was unquestionably after Brown had filed his charge,
that the Union offered Brown a referral to the Beasley bridge
job (notably) twice in mid-August (consistently, as a bolter,
not as a connector). Otherwise (at first) Brown didn’t think
the Union had offered him any referral after July 24 until
August 14, though Brown recalled generally that there were
occasions during August that the Union had dispatched
Brown to Huber.
Walker first called Brown on a referral to Beasley on Au-
gust 14, at about 11:10 a.m. Brown had been at the union
hall earlier that morning. Brown had gone to the hall and
signed the out-of-work list for that day; and, he probably
stayed around the hall till close to 9 a.m., waiting on a job
call. Brown then went home.
It is undisputed that the next Beasley call for men was on
or about August 14. Walker testified relatedly that the Local
had received a Beasley call at about 9 or 10 a.m. for some
men for the next day. Walker then called Brown, and he told
Brown they had a call for bolt up people to go to work in
the morning; and, for Brown to come to the hall, and they
would refer him out. Candidly acknowledging that Brown
had sounded like Walker had awakened him, Walker other-
wise relates that Brown said, ‘‘No, I’ve changed my mind,
and I don’t think I want to go out there.’’ Walker’s version
is that Walker then asked Brown, ‘‘Are you sure because it’s
going to be a good long job. Brown said, no, I don’t want
it.’’
Brown’s version of the conversation is essentially compat-
ible with that of Walker. Brown recounts that when he ar-
rived home, he went to sleep on the couch. Brown asserts
he wasn’t feeling well, explaining, he thought it was because
of some seafood he ate the night before. Be that as it may,
Brown recounts (as Walker has effectively conceded) he was
asleep on the couch when Walker called and woke him up.
Brown acknowledged that he turned down a first referrral to
the Beasley jobsite that day. In refusing the referral, Brown
told Walker that he didn’t feel well, though Brown then ac-
knowledged the late morning referral was probably for the
following day. Brown states he was confused when he an-
swered the phone.
Any issue of confusion as to Brown’s stated reason for de-
clining referral on this occasion aside, it is clear and undis-
puted that on August 14 Walker had first offered Brown a
referral on the very next Beasley call for men (bolters) to the
Beasley job, which Brown for whatever reason of his own,
refused, see related discussion below on the interim events.
864 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Moreover, Lee called Brown the very next day, on August
15. Lee (again) offered Brown a referral to Beasley. Though
Brown wasn’t home at the time, Brown confirmed remem-
brance that Lee had called sometime during the morning of
the next day, and that his wife took the message. It is undis-
puted that Brown turned down Lee’s (the Union’s second)
referral of Brown to the Beasley job made on August 15.
Brown asserts that it was probably on August 15 that he
decided the job was too unsafe for him. Whether August 14
or 15, The General Counsel continues to relatedly contend
that until then the Union had violated the Act in its initial
failure to refer Brown earlier on July 24, 1989, as at that
time Brown would have accepted referral to the Beasley
bridge job. While the General Counsel has declined to con-
cede Lee had not passed over Brown because of some con-
tended hostility, General Counsel otherwise acknowledged
that he did not have any specific instance of (Lee) hostility
that he would point to.
Nothing more had happened between August 14 and 15 to
make Brown believe the job was unsafe. Though Brown as-
serts he discussed the job with his wife the night before (in
the interim), Brown admits that he had reservations about the
job even before he had talked to his wife, on the evening of
August 14.
Finally, Lee has testified that he continued to offer Brown
referrals to the Beasley job, as many as 8–10 overall, includ-
ing again on August 18 and 28, none of which Brown ac-
cepted. Lee thus testified relatedly that on different occasions
Brown gave Lee different reasons for refusing Lee’s referrals
to the Beasley jobsite; namely, that he was ill and didn’t feel
good; that he had heard too much about the job and he was
afraid of the job; that he was waiting on another job that he
had heard about and wouldn’t be interested in it; and that
several times Brown just said, ‘‘I don’t want that job, you
know I don’t.’’
(3) Other considerations
Brown related that somebody had given his phone number
to a State senator in Charleston who had private investigators
investigating the matter. Brown relates that investigators
called Brown on several different occasions about stuff going
on that bridge. Brown told them he didn’t know anything.
Brown relates that with all of the above going on he was ac-
tually afraid to go out on that job at this time, and stated ex-
plicitly that the main reason he rejected the job was because
he was feared for his own safety for going on the job.
At hearing, Brown related that he did not believe that
there was foul play on the part of the Union in connection
with the Beasley job in any way. Brown also affirmed at
hearing that nobody on television, press, his friends, his wife,
or anyone else, had ever indicated to him that foul play on
the part of the Union was suspected in connection with the
Beasley job. In contrast, Union established that in an other-
wise typed affidavit given on August 28 during the investiga-
tion of this matter, Brown had initialed an underlined hand-
written statement that explicitly stated, ‘‘I was called on Au-
gust 15, 1989, by Business Manager Phillip Lee with a refer-
ral to that job. I rejected the referral not because I was sick,
but because of the allegations of foul play by the Union;
people turning up missing and the ongoing FBI investiga-
tion.’’
At that point Brown acknowledged, the apparently he did
tell the Labor Board in that statement that he had rejected
the job in part because of allegations of foul play by the
Union, but added, ‘‘I wasn’t aware of that; I don’t think that
was the intent; and, I probably wasn’t paying enough atten-
tion about what was written down there about the Union.’’
I credit the related and mutually consistent and corroborative
testimony of Walker and Kent, that the reported injury/deaths
had occurred on adjoining areas of the bridge job that were
unconnected to the Beasley bridge work, Beasley work force,
or the Union.
Brown has otherwise said at the hearing that after he had
filed the charge against the Local on August 4, knowing that
International and Local brought the contract (Beasley work)
in here, Brown figured that he might be putting himself in
jeopardy going out there on that job in view of having filed
the charge and everything.
a. Age considerations
Brown acknowledged (generally) that usually younger
ironworkers only want to work on top. Indeed, Brown has
as much as conceded a (Walker) stated practice in the indus-
try to use younger ironworkers up high or on top. Though
Brown has continued to reserve that older ironworkers could
do connector work too, it is clear enough to me of record
that it is a practice that younger ironworkers regularly do
high connecting work, and thus (apart from raising and/or
nonconnecting bolt-up work) the work materially applicable
initially to this bridge connector work. Brown confirmed
generally, ‘‘That’s all them young fellows want to do; I
mean they like the excitement and want to get up there.’’
While Brown continued the claim Brown had been on jobs
where both older men and younger fellows worked as con-
nectors, Brown broke off in still further acknowledgement—
usually younger fellows that’s the only category they’ll
check. They like that excitement of getting the thing going.
When later questioned specifically as to awareness of any
ironworkers of his age working on the connecting work on
that bridge, Brown stated only, that he didn’t even know
who’s out there now, he didn’t know any of them.
Lee expressed having trouble with the use of the term
practice, but Lee then otherwise testified in general, that in
connectors you look for someone that is able to do a hard,
dangerous, and physical job, hopefully with enough experi-
ence that they won’t hurt themselves, or some one below
them. Lee also related that in the 9 months that he has been
business manager, he hadn’t sent out any connector that was
over his thirties. Though Brown maintained older iron-
workers do connector work, and Lee confirmed that you may
see a connector in his late forties or early fifties, Lee also
testified that is the one in a hundred exception. Lee related
that the last time he personally worked as a connector was
in 1986. Lee has otherwise more specifically testified that
Brown and certain others were not passed over because of
their age as such, but because Lee didn’t think that they
could do the connector work required on the bridge, though
age was also unquestionably a factor in that regard.
865IRON WORKERS LOCAL 601 (PAPCO, INC.)
Analysis, Conclusions, and Findings
1. The Union’s failure to refer Brown to Papco’s
Georgetown jobsite
It is apparent from the evidence above that Walker did
make a real and continued local effort to try to get Brown
employed on the Papco jobsite, though I also conclude and
find only after Walker had already refused to refer Brown in
chronological order to the job; and, after Walker’s conversa-
tion with Brown, in which Brown had given Walker full rea-
son to question efficacy of the December 22, 1984 letter that
had recently been brought to Walker’s attention, and, which
had formed the basis for Walker’s initial failure to refer
Brown to the Papco jobsite at Georgetown. While I do not
credit Walker’s account of an immediate contact of Martin
over this matter, primarily because of its apparent incon-
gruity with other more credible evidence of local contact, I
do credit Walker that he did make efforts to amicably get
Brown on the job.
Thus I credit Walker’s subsequent initial phone conversa-
tion with Faulk about the subject; Walker’s then direction to
Lapman to do all he could to get Brown accepted on the job;
Walker’s own personal visit to the Papco jobsite on April 26,
and his related conversation and plea made with Faulk that
day; his inclusion of Brown in a substantial referral the same
day to a boilermaker job; and Walker’s subsequent directions
made to Lee to contact Martin. However, in that regard I
credit Lee: (a) that the thrust of Walker direct instructions to
Lee made as late as in July was to determine if Martin’s in-
tentions were still as they were in the past, in which efforts,
despite repeated attempted contact, Lee continued unsuccess-
fully; and, (b) that it was after a few weeks or so, that Walk-
er had again called Lee and told him that they had to do
something about this.
Moreover, I have credited Lee’s account that he had there-
after again tried to reach Martin, and this time left the mes-
sage with Martin’s secretary that he was going to have to tell
us (Union) what he wanted to do, or Brown would be re-
ferred out to the job. I am persuaded that any contact of
Martin on the subject made by Walker would have more
likely occurred after the report by Lee of his own inability
to make contact with Martin, if not after Lee left the latter
directed message for Martin.
In any event, I conclude and find that it was likely a con-
sequence of some such recent Walker phone contact with
Martin, and Walker’s further contact of Lee, that Lee, when
eventually contacted by Martin, told Martin just what Lee
had then been instructed to say, namely, by Walker’s efforts
to get Brown on the job and by talking to Martin’s personnel
on the job, ‘‘We realized what Martin’s wishes were, but we
felt like we were [now] in a position that we needed some
clarification.’’ The short of it is however, that once again,
much after the fact, it was the Union’s demand for a new,
updated letter that has resulted (again) in a union solicited
letter barring Brown from the job and property, this time
with the date of August 14, 1989.
It thus bears recalling the latest letter, though succeeding
the December 22, 1984 letter, is based on a 1975 fight be-
tween Brown and a supervisor that had occurred 14 years
earlier, and that apparently had also occurred away from the
Employer’s jobsite, at the supervisor’s house party; and,
which had been followed by two periods of interim success-
ful and satisfactory employment, before a previously deter-
mined discriminatory failure to refer Brown. In that regard,
I further note that despite Lee’s report of recent Martin vehe-
mence that his prior letter to bar Brown from the Papco job-
site was one he had intended to be for life, no such assertion
or any reference thereto appears in the new letter. Only a bar
is stated, as before. The Union’s belatedly solicited letter of
August 14, 1989, remains as suspect and inefficacious in re-
solving the instant dispute, as the prior letter of December
22, 1984, was found to be.
Nonetheless, in the light of Walker’s earlier apparent
good-faith efforts to amicably get Brown back on the Papco
job, it is thus not without some degree of reluctance that I
have concluded and found that Respondent Local Union 601
must be held responsible for the continued discrimination
that I am in the end convinced was effectively practiced
against Brown in Walker’s failure to refer Brown to the
Papco jobsite at Georgetown on April 3, 1989.
Whatever might be the case as to the identity of the Phil-
lips who was sent to the Papco jobsite at Georgetown in No-
vember 1984 on an occasion when Brown was found earlier
to have been discriminatorily denied such referral, there can
be no question that it was Johnny Phillips, as subsequently
appointed and then elected business manager of Respondent
Local 601, who has been shown on this record to have also
harbored intent to actively discriminate against Brown in
more recent years. That animus is convincingly evidenced by
Business Manager Phillips’ (uncontroverted) willing part in
keeping the related Board notice to members (naming
Brown) up on a union bulletin board in the Union’s meeting
hall, over Brown’s explicit and repeated objections, for well
over a year, if not for years beyond any normal required
posting period. The only purpose to appear reasonably of
record therefor is that Phillips, as the current Local Union’s
business manager, had continued in that period to
discriminatorily intend that those in attendance at the Union
hall would be aware that Brown had brought charges suc-
cessfully before the Board against Respondent Local 601.
Moreover, it then takes on added significance that, at a
time when Walker had expressed full intent to send Brown
to the Papco jobsite, it was that very same Johnny Phillips:
who (a) had first brought to Walker’s attention the above let-
ter of December 22, 1984, barring Brown from Papco prop-
erty though the letter had resulted from McMahon’s earlier
discriminatorily motivated contact of a high Papco official,
and (b) did not bring to Walker’s attention the Board’s re-
lated decision (or court order of enforcement) that necessarily
had considered it, and concluded that the December 22, 1984
letter was one wholly ineffectual to serve as a defense to the
Union in the alleged and determined discriminatory failure to
refer Brown to Papco at that time.
While I am disposed to credit Walker’s denial that Phillips
had mentioned the Board or court-related decision (at least)
initially to him and, to even credit Walker’s further denial
of ever having personally seen the decisions in Brown’s file
elsewhere, I have much greater difficulty with any such full
acceptance that once being so early apprised by Brown of the
existence of such decisions, that Walker did not shortly come
to have knowledge of its (their) basic contents, even if he
had also unsuccessfully waited some interim period for
Brown to bring in his copy.
866 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In any event, Respondent Local 601 cannot now be heard
to successfully defend on even credited limited Walker
knowledge on the December 22, 1984 letter as initially
brought to his attention by Phillips. Phillips was a union
agent who is shown on this record to have willingly engaged
previously in a continued discrimination against Brown.
Whether Phillips officially retained his titled union position
at the material time (March 30) or not, he had then unques-
tionably been retained as union agent for purposes of advis-
ing Walker on just such ongoing union matters. To the con-
trary then, like Brown, I conclude and find that this dispute
far more likely had initially arisen because Walker had ini-
tially listened to someone who had something against Brown,
namely Phillips; and that the conduct of Phillips in that re-
gard involved a renewed use of a previously proven ineffec-
tual solicited company letter, if not one itself tainted because
effected by prior union discrimination, below.
Thus, I further conclude and find that by Phillips’ act of
bringing the December 22, 1984 letter to Walker’s attention,
that on its face barred Brown from the Papco jobsite, but not
the Board’s (or court’s) related decision and order thereon
that had fully considered the circumstances of that letter’s
issuance, and had necessarily concluded the letter did not ab-
solve the Union’s prior determined discriminatory nonreferral
of Brown to Papco; and in Walker’s reliance thereon, and
subsequently proceeding on that basis to (again) not refer
Brown to Papco employment on April 3, Respondent Local
601, by the conduct of its above agents has effectively (once
again) discriminated against Brown in violation of Section
8(b)(1)(A) and (2) of the Act.
Just as the December 22, 1984 letter had produced no sal-
utary effect, or served as no defense to the Local’s prior dis-
criminatory failure to refer Brown to the Papco jobsite, nei-
ther can it be reasonably viewed presently to do so some 5
years later. Furthermore, in my view, the Board has nec-
essarily already held in substance and effect, if not explicitly,
that the production of the December 22, 1984 letter was one
inextricably tainted by Union Business Manager McMahon’s
earlier contact of the higher Papco officials, because of
McMahon’s heretofore clearly determined discriminatory
purpose in contacting the high Papco official before the let-
ter’s issuance.
Moreover, and contrary to Respondent Union’s present
contention in that regard, Local 601 cannot now be heard to
raise for the first time a contrary claim that the December
22, 1984 letter had some continued vitality on its own or be-
cause the letter was not previously ordered expunged, that it
could be revived and safely used to support future refusal of
the Local Union to refer Brown to Papco, e.g., once Union
Business Manager McMahon, whose discriminatory contact
the Employer had pursued its issuance, had left.
The same considerations can as surely then serve as no
offset to the additional circumstance that Phillips, a former
brother-in-law of the same McMahon, has been evidenced,
while serving as appointed and (later) elected business man-
ager of Local 601, to have now in his own right continued
to discriminate against Brown in an extended posting period
of related notices; or, discount the fact that Phillips was also
the very one to bring the letter to the attention of Walker,
but not any of the Board and court decisions from which it
is made clear the letter was an ineffectual base on which the
Union could even at that time refuse to refer Brown. There
can be no question that Phillips knew of the Board’s prior
decision (and the court’s order) that had resulted in the post-
ing of the notices to members that Phillips in his official ca-
pacity had kept up beyond normal posting period and over
repeated objections of Brown.
It is no answer then for the Union to relatedly observe the
fact the letter was not ordered expunged and to then seek to
singularly rely on the good faith of Walker, where Phillips,
who had continued willingly to discriminate against Brown,
had brought it alone to Walker’s attention and occasioned
and urged Walker to initially proceed on it alone, which
Walker then did. The resulting discriminatory effect on
Brown in consequence is clear. Thus, Respondent Local 601,
by the conduct of its agents Phillips and Walker, has under
all the circumstances shown presented herein, in substance
and effect continued to make discriminatory use of the De-
cember 22, 1984 letter that was initially solicited by the
Union out of a discriminatory motive against Brown. As
there is no charge or allegation herein brought against the
Employer, I need not address the additional effect, if any, of
Phillips part, as then designated supervisor of Papco for hire,
in the presently determined discrimination that was practiced
against Brown.
However, I do note in that regard the probable consider-
able concern that was subsequently raised in Walker, as re-
vealed by Walker’s concession of Phillips’ expressed view
that a Brown referral to Papco was likely to cause a big
problem on the Papco jobsite; especially after Walker’s con-
versation with Brown on April 5 that had (at least) served
reasonable notice on Walker at that time that the very letter
on which Phillips had caused him to recently rely, may have
been one substantially undercut by a subsequent Board (or
court) decision. Thus, even if Walker remained unknowing
of Phillips’ part in recent discriminatory posting of notices,
Walker was fully aware of Phillips recently expressed view
that a referral of Brown to Papco would cause a lot of prob-
lems on the job, as well as the fact that Phillips was by then
Papco’s designated supervisor on the job. The degree of
Walker’s likely concern is then only rendered the more sig-
nificant, with Walker’s additional acknowledgment that he
knew some Local Union members did not want Walker there
to begin with, which no doubt would have included elected
and now removed Business Manager Phillips.
Finally, in regard to this new Papco jobsite that Walker
(and the other unions) had obtained only through negotiation
of a special wage concessionary project agreement in order
to provide needed job opportunities for employment to mem-
bers of his (and other building trade) union I additionally
have no doubt Walker was strongly motivated and personally
committed to have that project run smoothly. While I be-
lieve, on the weight of evidence presented before me, that
Walker subsequently tried to obtain an accommodation for
an amicable return of Brown to the Papco jobsite (as I have
found) on an ever advancing higher level that circumstance
does not justify or exonerate the Union for its agents’ earlier
discriminatory nonreferral of Brown to the Papco jobsite, as
has been determined above.
It is therefore concluded and found that by the acts of
former Business Manager Phillips, who has otherwise been
established to have harbored animus against Brown in mate-
rial times, in bringing the union solicited letter of December
22, 1984, to Walker’s attention, at a time when Walker had
867IRON WORKERS LOCAL 601 (PAPCO, INC.)
otherwise planned to refer Brown to Papco’s Georgetown
jobsite, and by Phillips’ telling Walker at the time only that
a referral of Brown would cause big problems on the job be-
cause of the Papco letter of December 22, 1984, that stated
on its face it barred Brown from the property, without also
informing Walker of the related Board (or court) decision in
which the origin and content of the letter was fully consid-
ered, and despite its issuance, the Local Union there found
to have discriminatorily failed to refer Brown to the Papco
jobsite; and by Walker’s consequent reliance on the letter,
and his related refusal to refer Brown to Papco initially on
or about April 3, 1989, Respondent Local 601 has continued
to discriminate against Brown in violation of Section
8(b)(1)(A) and (2) of the Act, as the complaint alleges, and
the General Counsel has contended.
2. The Union’s failure to refer Brown to the
Beasley bridge job
Brown has centrally testified that he can do all iron-
worker’s work and that if Brown goes on other jobs out of
his jurisdiction, he is expected to go where the work is, re-
gardless of the heights (involved) or what it (the job) is.
However, Brown concedes generally that like most iron-
workers he is more proficient at certain ironworker work
than other such work. More materially, Brown’s testimony
has otherwise revealed essentially his own basic agreement
with Walker central observation that connecting work is a
young man’s game, in Brown’s own acknowledgment that
younger ironworkers always want to do that high connecting
work, and that they love the excitement of it, and regularly
do the required connecting work on the top to get the job
started.
Other Brown testimony has more candidly revealed
Brown’s real interest in the Beasley job lay not with a refer-
ral to do the bridge’s high connecting work, but rather
Brown’s interest rested in his belief there were ground jobs
available with the raising gang, to which he had not been re-
ferred in order, and which work he felt he could do. Indeed,
it is apparent that even when Brown later learned the initial
Beasley call was for all connectors, the raising gang ground
work was work that Brown still sought to claim as available
for his referral, because Brown essentially didn’t believe that
the Employer needed all connectors at first, as he then
thought it was nothing but a ruse to serve other Employer
intended purpose, that improperly worked to his disadvan-
tage.
Preliminarily, I presently conclude therefrom, in a basic
refinement of the real disputed issues, that only Brown’s
ability to do the described high connecting work on the top
and bottom of the bridge has been centrally joined in issue
here, or the reasonableness of Lee’s view of his qualification
in the classification, though the issue involves resolution of
the underlying factual question whether Beasley had actually
and properly wanted all first referred ironworkers to be able
to go to the top to help do the connecting work there.
The record makes very clear that not joined in issue is
Brown’s general ability to do bolt-up work, for that is the
work for which he received repeated referrals in August as
soon as that full-time work opened up. Nor has Brown’s spe-
cific interest in, and thus claimed ability to work limitedly
on the ground in a raising gang been questioned. It is not
the issue. Certainly also not in issue is Brown’s ability to
perform any of the remaining job related yard work, which
on this record is work that is usually reserved for (seem-
ingly) the older ironworkers that have pulled their time.
Neither is Brown’s ability to work on connecting jobs as
a general or other foreman (pushing) a raising gang (with,
or without required ability to go to the top to observe any
developed problem in connecting, but without actual required
performance of any connecting work) what is here joined in
issue. Beasley’s Kent had unquestionably already selected
and brought in his own key supervisory people to perform
those tasks. It is Brown’s ability if called on to do the high
connecting work with any degree of regularity under the
claimed unique circumstances of this job that is in issue,
and/or Lee’s reasonable belief Brown wasn’t qualified as a
connector; although the General Counsel does additionally
relatedly raise question whether Lee’s actions and methods
that were utilized in making initial referrals on a required
connector basis, have sufficiently followed existing hiring
hall rules, procedures, or established practices, or were such
as to meet considerations of objectivity that are required of
operative hiring hall personnel when they make such refer-
rals.
On the basis of the mutually consistent and corroborative
testimony of Walker, Lee, and Beasley’s project super-
intendent, Kent, I credit the above described circumstances
which support and warrant conclusion that there was a need
for all connectors at first. On this record I find that there was
poor management in the initial CRC effort at erection of the
steel for the bridge job; that in Kent’s view CRC’s assembly
and location of the iron in sections and pieces had also re-
sulted in a mess on the ground; that on being awarded the
subcontract to erect the steel, Kent knew Beasley’s initial
work force would have to first straighten out the ground
mess, which reasonably meant they would have to first raise
and connect a lot of the already prepared iron on the ground.
It is further found that Kent thus knew that the work at
first would primarily involve the physically hard and dan-
gerous task of connecting the heavy iron pieces at substantial
heights to the top and bottom of the bridge; and Kent reason-
ably concluded as a matter of efficiency in job recovery, that
all the ironworkers that Beasley at first would employ,
should be able to go to the top and connect, as often as
needed. Resultingly, and any good-faith belief of Brown to
the contrary notwithstanding, I further conclude and find that
Kent had discussed with the Union Beasley’s immediate con-
nector needs to resume the job in orderly fashion; and, to
that end, subsequently called the hall requesting the Union
to refer all connectors at first, for that reason.
Though Kent recollections of when and how he had asked
for all connectors, as General Counsel points out, vacillated
somewhat, Kent no less continued to variously recount
credibly his actual need and requests made of the Union that
the ironworkers referred at first best be connectors, or would
have to be connectors; and, that the Union knew he needed
the connectors at first, because (they knew) that was pri-
marily what had to be done first. Moreover, I credit consist-
ent and corroborative testimony of Walker that in their meet-
ing, Kent had told Walker that he wanted five connectors;
and, I credit Lee’s like and confirming testimony that Kent
in his first call had specifically called for all connectors; and,
that Kent had explained to Lee that he had to clean up be-
hind CRC as his reason for doing so. I credit Lee that he
868 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
had referred all connectors as requested by the Company.
(Dispatch of the apprentice appears on this record covered by
other agreement.) In any event, I further credit Kent that the
men that the Union referred did the job for him, albeit appar-
ently (at least) one (Barnette) left the bridge job shortly after
referral, for perceived job safety reasons.
In general, the record reveals that all ironworkers do not
always do all ironworkers’ work, and/or do not do some
ironworkers’ work as well as others. I am also persuaded on
this record that some ironworkers’ work, e.g., connector
work and particularly bridge connector work, material herein,
is (at least) generally performed in a pragmatic practice, by
younger ironworkers.
Certainly a central factor for initial discernment is whether
under that guise the Union has in fact discriminated against
Brown, Plumbers Local 136 (Shaw Co.), 280 NLRB 847 fn.
1, 861 (1986); though specific evidence of discriminatory
motivation toward an alleged discriminatee is not a pre-
requisite for establishing a violation, e.g., where a business
agent uses unfettered or unbridled discretion in departing
from a contract’s provided objective criteria, Plumbers Local
619 (Bechtel Power), 268 NLRB 766 (1984); Painters Local
1178, 265 NLRB 1341 (1982). Here, legality of compara-
tively recent hiring hall changes instituted on May 23 are not
in issue. The changes in the hiring hall system remained es-
sentially compatible with contractually authorized use of spe-
cialized classifications, and individually declared qualifica-
tion thereunder as objective criteria for the running of the re-
ferral system. An operative business manager is not pre-
cluded from having and using personal knowledge thereof,
nondiscriminatorily, Laborers Local 1334 (Western Sign),
281 NLRB 185, 196–197 (1986). It is no advance of alleged
unlawful act to assert such practice may lead to abuse, if the
evidence presented does not prove actual unlawful abuse,
Morrison-Knudsen Co., 291 NLRB 250 (1988).
Under recently established hiring hall rules and proce-
dures, an ironworker was directed to indicate his (presumably
contractual) recent work (time and classification) qualifica-
tions on the daily out-of-work list then in use. At this time
(at least in practice) an ironworker on registering did not lose
his position on the out-of-work lists by refusing a job refer-
ral. Lee has testified that he used the daily out-of-work list
for July 24, and only upon exhausting it, went on, in accord-
ance with established procedure, to use the last prior out-of-
work list (as necessary) in making up the July 24 referrals.
Contrary to the General Counsel’s broad urging, I presently
conclude and find that Lee has essentially followed the re-
cently established hiring hall rules and procedures, including
the practices related to the procedures under which applicants
for employment were directed to sign a daily out-of-work list
and, if they qualified, identify themselves as qualified in cer-
tain areas, e.g., Structural, which, also under established
practice, could include refined claim of connector qualifica-
tion, though Lee has also followed a practice of acting on
what he otherwise knew of an applicant’s qualifications
and/or wishes in regard to connector work.
On this record, Lee is not shown to have acted disparately
in referring qualified connectors. Thus, Lee acted (I find)
reasonably and not arbitrarily in referring Martin whom Lee
knew was a qualified connector, though Martin had not
signed the daily list that day expressly as a connector; and,
Lee acted reasonably as well in asking McCracken whom he
knew was a qualified connector, because McCracken also
had not registered as a connector that day. Moreover, Lee
acted reasonably in not referring McCracken, because
McCracken, on being asked by Lee about a referral to the
job as a connector, had then told Lee that he did not want
to be referred to the Beasley bridge job as a connector.
In general, there is no convincing evidence presented oth-
erwise that Lee has misrepresented the nonqualification
and/or stated wishes not to be considered a connector of any
of those (whether appearing before or after Brown on the
out-of-work list) whom Lee has reported had told him, or
whom he had knowledge were not connectors or were no
longer interested in referral as a connector to that or any job,
e.g., because reaching retirement age; or just simply didn’t
wish to be referred to the Beasley job as a connector.
The remaining question then is whether Lee has acted rea-
sonably in not referring Brown to the bridge job that Lee
knew would involve regular performance of (at least) some
connecting work on top, especially without having asked
Brown, as he did some others he knew were connectors; or,
whether Lee has acted in Brown instance, disparately and
discriminatorily. There is simply no evidence appearing of
record to support the conclusion that Lee has ever discrimi-
nated against Brown, certainly not in prior Brown dissident
years when Lee was called as a government witness to give
testimony against the Union; and, in regard to a matter of
Lee harboring animus against Brown, not only is the record
void of any suggestion thereof, animus on the part of Lee
to Brown on this record is substantially contraindicated.
Under all of the above determined circumstances, given
then the additional circumstances shown of Brown’s non-
performance of connector work full time for 15 years, and
(at best) limited and not very recent performance of con-
nector work otherwise; and Brown performance of actual
connector work shown never accomplished within Lee’s 20-
year knowledge of Brown working within or without Local
601’s jurisdiction; and given the traditional performance of
major or substantial connecting work as usually performed
by younger ironworkers (as here), coupled with Brown’s age
being (at least) generally known to Lee and Brown’s own
failure to designate himself as a connector that day, I con-
clude and find in the end that Lee acted reasonably and law-
fully.
Thus Respondent Local 601 has met any burden the Union
had of showing that there was in fact no substantial deviation
from the procedures and practices existing under the com-
paratively recently established hiring hall rules under the
contract; or, if it is to be viewed there was some deviation,
the deviation itself was neither discriminatorily motivated or
shown exercised in breach of any duty of fair representation,
because Lee (at the very least) is shown to have at all times
acted reasonably, in good faith, and neither arbitrarily, nor
disparately towards Brown in not initially referring Brown on
July 24 to the Beasley bridge job as a connector, even
though Lee did so without having first asked Brown if he
had connector qualifications, cf. Iron Workers Local 601
(Papco, Inc.), 276 NLRB 1273 (1985); and see Pipe Fitters
Local 392 v. NLRB, 712 F.2d 225 (6th Cir. 1983), cited
therein, id. at 1277.
In the latter regard, I credit Lee’s testimony that he didn’t
ask Brown because he didn’t feel he needed to; and, under
all of the above circumstances, Lee had reasonable basis to
869IRON WORKERS LOCAL 601 (PAPCO, INC.)
3 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.
hold the view that Brown was not qualified to do the con-
necting work that was physically hard and dangerous that
Lee reasonably knew was to be regularly required of all
members of the raising gang on this particular bridge job. Fi-
nally, I note in that regard the significance of Brown’s own
testimony that reveals his real interest lay in a referral to a
ground job that he erroneously viewed would not require
high connecting work of everyone. There is no evidence pre-
sented that any ironworker working on the ground in the ini-
tial raising gang did not regularly go on top to do the con-
necting work described herein as required.
Accordingly, for all the above reasons, I recommend that
the complaint’s allegation that Respondent has violated Sec-
tion 8(b)(1)(A) and (2) of the Act by its failure to refer
Brown to the Beasley bridge jobsite on July 24 be dismissed.
CONCLUSIONS OF LAW
1. Papco, Incorporated (Papco), and John F. Beasley Con-
struction Company (Beasley), are each, respectively, an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Association of Bridge, Structural and Or-
namental Ironworkers, AFL–CIO, Local 601 is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. By its agents’ failure and refusal to refer James L.
Brown to employment with Papco on April 3, 1989, Re-
spondent Local 601 has violated Section 8(b)(1)(A) and (2)
of the Act as alleged in the complaint; and, the Respondent
Union has thereby engaged in unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
4. Respondent has not otherwise engaged in unfair labor
practices in failing and refusing to refer James L. Brown to
employment with Beasley on July 24, 1989, as alleged in the
complaint.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
A broad order has already issued directing that Respondent
Union cease and desist from in any other manner restraining
or coercing employees or applicants for employment in the
exercise of rights guaranteed to them in Section 7. While
there may be mitigating factors present in the violation found
herein, since this is the third time that Respondent Local 601
has engaged in unlawful conduct against James L. Brown, it
has demonstrated a continued proclivity to violate the Act in
that respect, and a broad order is again warranted that will
specifically take that into account. Hickmott Foods, 242
NLRB 1357 (1979).
Having found that Respondent has unlawfully refused to
refer Brown to employment with Papco beginning April 3,
1989, it will be recommended that Respondent Local 601
make Brown whole for any loss of earnings suffered by him
as a result of Respondent’s unlawful failure and refusal to
refer Brown to employment with Papco, Iron Workers Local
601 (Papco, Inc.), supra, at 1281; and Boilermakers Local 27
(Daniel Construction), 271 NLRB 1038 fn. 1 (1984). Back-
pay is to be computed in the manner as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987). The effect on the amount of backpay due Brown
from the Union’s failure to refer Brown to the Papco job, if
any, of Brown’s termination of employment on certain jobs,
e.g., the Boilermaker job referral on April 26, or the August
Beasley referral rejections, etc. may all await determination
in compliance.
Finally, this is the second occasion that a belated union so-
licited letter from Papco has been found tainted and/or ineffi-
cacious to support Respondent Local 601’s refusal to refer
Brown to Papco. The continuing suspicion and/or taint resid-
ing in such union solicited letters under the circumstances
determined herein needs to be cleared with some degree of
remedial finality. Accordingly, it will be recommended that
Respondent Local 601 be now ordered to expunge all union
solicited Papco letters purporting on their face to bar Brown
from referral to Papco’s jobsites and/or premises from the
file of James L. Brown, and that it notify Brown in writing
when it has done so. It is further recommended that Re-
spondent be ordered to notify Papco in writing that Iron
Workers Local 601 has no objection to Papco’s employment
of James L. Brown in the future; that it has removed all
union solicited Papco letters purporting on their face to bar
Brown from Papco jobsites and/or premises; and that it will
refer Brown in the future to Papco employment, absent re-
ceiving an unsolicited letter to the contrary.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, International Association of Bridge,
Structural and Ornamental Ironworkers, AFL–CIO, Local
601, Charleston, South Carolina, its officers, agents, and rep-
resentatives, shall
1. Cease and desist from
(a) Discriminatorily failing and refusing to refer James L.
Brown to employment with Papco, Incorporated, or any other
employer with whom it has an employment referral system.
(b) In any other manner restraining or coercing James L.
Brown or any other employees or applicants for employment
in the exercise of rights guaranteed to them in Section 7 of
the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make James L. Brown whole for any loss of earnings
that Brown may have sustained because of Respondent’s un-
lawful failure to refer him to employment with Papco on
April 3, 1989, by paying Brown a sum equal to what he
would have earned absent the unlawful conduct, plus interest,
as provided above in the remedy section of this decision.
(b) Expunge all union solicited Papco letters purporting on
their face to bar Brown from referral to Papco’s jobsites
and/or premises from the file of James L. Brown; notify
Brown in writing when Respondent has done so; and, also
notify Papco in writing that Respondent Iron Workers Local
870 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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
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.’’
601 has no objection to Papco’s employment of James L.
Brown in the future; that it has removed all prior union solic-
ited Papco letters barring Brown from Papco jobsites and/or
premises; and that it will refer Brown in the future to Papco
employment, absent an unsolicited letter of Papco to the
Union that requests the contrary.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all records per-
taining to employment through its hiring hall, and all records
relevant and necessary for compliance with this Order.
(d) Post at its business offices, meeting halls, and dispatch
halls in Charleston South Carolina, copies of the attached no-
tice marked ‘‘Appendix.’’4 Copies of the notice, on forms
provided by the Regional Director for Region 11, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to members are customarily
posted. Reasonable steps shall be taken by Respondent to en-
sure that the notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.