Laborers Local 423 (Dugan & Meyers)

National Labor Relations Board - Board Decisions

Aug 31, 1992

308 N.L.R.B. 635 (N.L.R.B. 1992)

635
308 NLRB No. 87
LABORERS LOCAL 423 (DUGAN & MEYERS)
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.
There are no exceptions to the judge’s dismissal of any complaint
allegations.
Laborers’ International Union of North America,
Local Union No. 423, AFL–CIO (Dugan &
Meyers Interest, Inc., et al.) and Michael A.
Mayle
Laborers’ International Union of North America,
Local Union No. 423, AFL–CIO
(Rudolph/Libbe, Inc.) and James E. Matheny.
Cases 9–CB–7741, 9–CB–7846, 9–CB–7868, 9–
CB–7905, and 9–CB–7954
August 31, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On March 13, 1992, Administrative Law Judge Wal-
lace H. Nations issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Laborers’ International
Union of North America, Local No. 423, its officers,
agents, and representatives, shall take the action set
forth in the Order, except that the attached notice is
substituted for that of the administrative 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.
WE WILL NOT refuse to comply with an employee’s
request to view our job referral records.
WE WILL NOT threaten an employee with a lawsuit
for signing an unfair labor practice charge filed against
us.
WE WILL NOT, in the operation of our hiring hall,
make referrals for employment that deviate from and
violate our established and posted referral rules and
procedures.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL operate our hiring hall in the manner de-
scribed in the established and posted rules and in ac-
cordance with objective criteria.
WE WILL make whole Michael Mayle and James E.
Matheny for any losses they may have suffered by vir-
tue of our unlawful deviation from and violation of our
established and posted referral rules, with interest.
WE WILL establish a written attendance procedure
for our hiring hall which will record the date and hour
of the physical presence of job applicants, and record
the names of those applicants who refuse employment
on a given date.
WE WILL post notices to our members and appli-
cants that we rely on their application forms in making
referrals and WE WILL establish a procedure whereby
applicants can regularly update their application forms.
LABORERS’ INTERNATIONAL UNION OF
NORTH AMERICA, LOCAL UNION NO.
423, AFL–CIO
Damon W. Harrison Jr., Esq., for the General Counsel.
Lawrence M. Oberdank, Esq., of Columbus, Ohio, for the
Respondent.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. Be-
tween October 15, 1990, and August 8, 1991, Michael A.
Mayle (Mayle) filed charges and amended charges in Cases
9–CB–7741, 9–CB–7846, 9–CB–7905, and 9–CB–7954, al-
leging that Laborers’ International Union of North America,
Local Union No. 423, AFL–CIO (Union or Respondent)
committed certain unfair labor practices. On February 13,
1991, James E. Matheny filed a charge alleging that the
Union had committed unfair labor practices. Based on these
charges and amended charges, the Regional Director for Re-
gion 9 issued a series of complaints, culminating in an order
consolidating cases, fourth consolidated complaint and notice
of hearing dated August 22, 1991. The consolidated com-
plaint, alleges that Respondent Union has engaged in activity
in violation of Section 8(b)(1)(A) and (2) of the National
Labor Relations Act (the Act). Respondent filed timely an-
swers to the complaints in which it admits, together with ad-
missions made at the hearing, the jurisdictional allegations of
the consolidated complaint, the supervisory or agency status
of certain union officials, the fact that it operates an exclu-
sive hiring hall for referral of individuals for employment,
636 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The spelling of the name of this company varies throughout the
record. The spelling shown here will be used in this decision.
that the hiring hall is open from 6 until 10 a.m., Monday
through Friday, and referrals are made by 10 a.m., at which
time the hall is closed.
Hearing was held in these cases in Columbus, Ohio, on
November 14 and 15, and December 2, 1991. Briefs were re-
ceived from the parties on or about February 3, 1992. Based
on the entire record, including my observation of the de-
meanor of the witnesses, and after consideration of the briefs,
I make the following
FINDINGS OF FACT
I. JURISDICTION
It was admitted by the Respondent and the following
named employers, that at all times material:
(a) Dugan & Meyers Interest, Inc. (Dugan), a corporation,
has been engaged as a contractor in the building and con-
struction industry out of its Cincinnati, Ohio facility.
(b) Field and Associates, Inc. (Field), a corporation, has
been engaged as a contractor in the roofing, sheet metal sid-
ing, HVAC, and interior systems business out of its Spring-
field, Ohio facility.
(c) G.F.C. Inc. (G.F.C.), a corporation, has been engaged
as a contractor in the building and construction industry out
of its Sylvania, Ohio facility.
(d) The Sherman R. Smoot Company (Smoot), a corpora-
tion, has been engaged as a contractor in the building and
construction industry out of its Columbus, Ohio facility.
(e) Sasco Brick Contractors, Inc. (Sasco), a corporation,
has been engaged as a contractor in the building and con-
struction industry, including a job at Marysville, Ohio.
(f) Teco Glass, Inc.1 (Teco Glass), a corporation, has been
engaged as a contractor in the building and construction in-
dustry out of its Toledo, Ohio facility.
(g) Cleveland Cement Contractors, Inc. (Cleveland Ce-
ment), a corporation, has been engaged as a contractor in the
building and construction industry.
(h) Ro-Dan Mechanical Services, Inc. (Ro-Dan), a cor-
poration, has been engaged as a contractor in the building
and construction industry out of its Columbus, Ohio facility.
(i) Rudolph/Libbe, Inc. (Rudolph), a corporation, has been
engaged as a contractor in the building and construction in-
dustry out of its Columbus, Ohio facility.
It was further admitted and I find that each of the above-
named employers is employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE INVOLVED LABOR ORGANIZATION
It was admitted and I find that the Respondent Union is
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues Presented for Determination
The consolidated complaint raises the following issues for
decision:
l. Whether Respondent violated Section 8(b)(1)(A) of the
Act on or about October 2, 1990, by Vice President and
Business Agent Walter Boffman threatening that an em-
ployee would not be referred to future employment because
he questioned Respondent’s operation of its hiring hall and
referral procedures.
2. Whether Respondent violated Section 8(b)(1)(A) of the
Act on or about July 11, 1991, by Business Agent Howard
Woods refusing an employee’s request to view Respondent’s
job referral records.
3. Whether Respondent violated Section 8(b)(1)(A) of the
Act on or about July 15, 1991, by Business Manager Fred
Boffman threatening an employee with a lawsuit for signing
the charge filed against Respondent in Case 9–CB–7954.
4. Whether Respondent violated Section 8(b)(1)(A) and (2)
of the Act by violating its hiring hall rules on or about Au-
gust 16, 1990, by making referrals to Rudolph to the det-
riment of Matheny and other employee applicants who were
ahead of those referred on Respondent’s out-of-work list.
5. Whether Respondent violated Section 8(b)(1)(A) and (2)
of the Act by violating its hiring hall rules on or about De-
cember 11, 1990, by making referrals to Field after 10:30
a.m. to the detriment of employee applicants who had de-
parted Respondent’s hall after it closed at 10:30 a.m.
6. Whether Respondent violated Section 8(b)(1)(A) and (2)
of the Act on or about January 28, February 14, May 6 and
22, and June 3 and 26, 1991, and at other dates, by making
referrals to G.F.C., Smoot, Sasco, Teco Glass, Cleveland Ce-
ment, Ro-Dan, Rudolph, and other employers to the det-
riment of Mayle and other employee applicants who were
ahead of those referred on Respondent’s out-of-work list.
B. Background Facts About the Operation of the
Hiring Hall
Much of the evidence about the hiring hall procedures and
operation is uncontested and thus, I will rely on the General
Counsel’s recitation of this evidence as fact. Respondent op-
erates a hiring hall pursuant to provisions of the collective-
bargaining agreement it has with the Central Ohio Division,
Ohio Building Chapter, Associated General Contractors of
America, Inc. This agreement requires Respondent to be the
exclusive source of referrals of employees to employment
and Respondent is required to maintain a facility at which it
establishes and maintains employment lists for use by appli-
cants for employment in its geographic area pursuant to cer-
tain terms and conditions contained in that agreement. Re-
spondent also has a contract with the Ohio Contractors Asso-
ciation known as the Heavy Highway Agreement and in
making referrals to employers signatory to or bound by ei-
ther contract, Respondent utilizes the same referral proce-
dure. The Board in Laborers Local 423 (Great Lakes Con-
struction), 298 NLRB 498 (1990), found that the rules and
procedures under which the hiring hall is operated were law-
ful and did not violate Section 8(b)(1)(A) of the Act. Since
the issuance of the decision in that case, the Respondent has
modified the hiring hall procedures in limited respects. Spe-
cifically, the hiring hall is now open from 6 through 10 a.m.,
Monday through Friday, at which time the hall is closed and
referral applicants are required to leave the hall. Previously,
the hall remained open until 1 p.m. Otherwise, the operation
of the hiring hall apparently remains as found in the Board’s
decision referred to above.
As noted in the Board’s earlier decision, an individual
must initially appear in person at the union hall in order to
637LABORERS LOCAL 423 (DUGAN & MEYERS)
2 Respondent’s business agent, Howard Woods, normally calls the
names on the referral list, though Business Manager Fred Boffman,
and perhaps other union officials, have called the list on occasion.
I believe the record is clear that when jobs are available, Woods
does normally and routinely call the list beginning at about 7 a.m.
3 He has previously been a member in the early 1970s, but moved
away from the area for a number of years.
4 Charging Party Matheny is also a member of this group, which
has about 12 members. The Respondent local has about 1700 mem-
bers.
have his name placed on the hiring hall list. For some period
of time predating the Board’s earlier decision, individuals
have been required to complete an application which indi-
cates, among other things, the applicant’s skills, experience
and past work record, particularly in the laborers’ construc-
tion industry field. However, employees who have utilized
the hiring hall for many years have not completed such ap-
plications. On initially signing up for referral, the applicant’s
name is placed on the out-of-work or referral list by a union
agent or employee and the applicant is advised of his number
or position on the list. The referral list does not include the
telephone number of the applicant or any indication of the
skills, abilities, experience, or qualifications of the applicant.
Respondent does not, in the regular course of business, ob-
tain or maintain telephone numbers of individuals utilizing
the services of the hiring hall.
On subsequent Mondays, applicants for referral are re-
quired to either telephone or appear in person at the union
hall in order to be checked off to remain current on the refer-
ral list. On Mondays which are holidays, an automatic check-
off is given to everyone on the list for the week.
In order to fill job requests from employers, Respondent’s
agents are supposed to call out the names from the out-of
work list, beginning with the first person on the A list each
morning when jobs are available and continuing down that
list until the job is filled.2 Applicants are required to be
present at the hall in order to be referred to employment. If
an applicant is not present at the hall at the time his name
is called out, he loses his position on the referral list. Al-
though under the established procedures in effect at the time
of the prior Board hearing, an applicant did not lose his posi-
tion on the list if he turned down a job while present at the
hall, under current procedures if an applicant is present at the
hall and turns down a regular job which is scheduled to last
for more than 7 days, he loses his position on the list and
his name is placed at the end of the list. If an applicant turns
down or refuses a job which is scheduled to last less than
7 days, he does not lose his position on the list. If individ-
uals are referred to employment which lasts more than 7
days, then their name is removed from the out-of-work list
and they must later reregister if they desire referral. If em-
ployment to which they are referred, in fact, lasts less than
7 days, then the individual is permitted to retain the same
position on the out-of-work list which he had prior to the re-
ferral to employment. Although the written rules contained in
the collective-bargaining agreement provide that employment
of more than 3 days would result in removal from the out-
of-work or referral list, in actual practice this is applied to
jobs of more than 7 days and not 3 days in duration.
Individuals may be recalled by an employer if they have
worked for that employer in the past year. Employers may
contact individuals directly without going through the union
hall and, on occasion, may contact the union hall in order
to locate the individual if that person is present.
The rules for the operation of the referral hall are con-
tained in the collective-bargaining agreement with the Asso-
ciated General Contractors of America, Inc., referred to
above, at article 2 and in signs posted on the walls and on
the bulletin board at the union hall. Otherwise, there are no
written rules with regard to the operation of the hiring hall.
There are several signs posted at the union hall which relate
to the operation of the hiring hall. One provides, among
other things, that the hiring hall hours are from 6 through 10
a.m. Monday through Friday and that the hiring hall will
close promptly at 10 a.m. daily. Another such sign which has
been regularly posted notifies that not checking off on roll-
call days will automatically result in the dropping of the
name from the out-of-work list. Another sign on a white
piece of paper approximately 11 inches by 14 inches pro-
vides, ‘‘Notice, all persons refusing regular jobs will be put
to the back of the out-of-work roster. Business Manager’’
and has been posted for only a few weeks prior to this hear-
ing on November 14, 1991. In addition, there is a sign which
indicates that effective July 15, 1991, no applications will be
taken until further notice. This sign has been posted since the
date mentioned therein.
Respondent does not keep daily attendance of people
present who show up for referral at the hiring hall. Normally,
quite a few people show up for referral. Attendance varies
from as few as 10 or 15 people to as many as 70 present
seeking referral. On any given day there are people who
have been at the hall who are not referred out to employ-
ment.
Respondent does not keep any complete or systematic
record of referrals to employment which have been made.
Customarily, individuals referred to employment are given
work orders; however, work orders are not given for every
job. In addition, Respondent maintains cards for each referral
hall applicant or user on which notations are made of job re-
ferrals. There are referrals, however, which do not show up
on the cards. In addition, notations are made sometimes on
the out-of-work or referral list of jobs or employers to which
individuals are referred. As with all of Respondent’s record
keeping as to the operation of the hiring hall, this is not con-
sistently done and thus, there are jobs for which referrals
were made and for which there are no records indicating
such referrals.
C. Did Respondent Threaten Mayle Because He
Questioned the Operation of the Hiring Hall
Charging Party Michael Mayle is a member of the Re-
spondent Local Union, and most recently has been a member
since 1987.3 He is the organizer of a dissident group of
members which is attempting to unseat the current power
structure of the Local, headed by Business Manager Fred
Boffman and his brother, Vice President and Business Agent
Walter Boffman.4 On August 16, 1990, Mayle was referred
by the hall to a job at Ross Laboratories on Seltzer Road in
Columbus, Ohio. This job lasted until Thanksgiving of that
year. On October 2, 1990, Mayle was working on this jobsite
when he was approached by Walter Boffman. Fellow union
member Earnest Walton was also present. According to
638 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The reference to the window bucket evidently relates to some
window cleaning Mayle did when he was not employed in construc-
tion.
6 Mayle testified that he spoke with Cobb, the Union’s janitor,
about seeing the referral books.
7 Boffman’s testimony in this regard is corroborated by Walton,
Cobb, and even Mayle.
Mayle, Boffman initiated a conversation, stating that he un-
derstood Mayle was dissatisfied with the way the hall was
run. Mayle said he was and Boffman asked why. Mayle said
it was because of the way some of the older members were
being treated and because some of the younger members
could not get jobs. Boffman told him that was none of his
business and Mayle disagreed. Boffman then told him to
mind his own business and showed Mayle a list of jobs to
which he had been referred, telling him that he had not done
so badly since he came back to the Union.
Mayle responded that many of the jobs were only 2 or 3
days in duration. According to Mayle, Boffman then said,
‘‘Well, you don’t know what you’re doing and you better
watch your ass. You better keep that window bucket with
you cause you won’t be working anymore.’’5 Mayle said to
Boffman, ‘‘you people keep all your family and friends
working all the time.’’ Boffman said he did not know about
that. Mayle then said that there was a man working down in
Circleville who didn’t even know where the union hall was
located. Boffman said that the man may have called in on
the phone, to which Mayle responded that an application
could not be filled out over the phone. Boffman then said
that job was not in his district and he did not know anything
about it.
Boffman then accused Mayle of talking to union hall em-
ployee Eddie Cobb, warning Mayle that if caught Cobb talk-
ing to him that he would fire both him.6 According to Mayle,
Boffman then said he would take Mayle’s union book away
from him and he had better watch his ass, adding that Mayle
did not know anything about unions. Mayle responded that
he had worked in larger and better unions. Boffman then said
he had beat some other members and he would beat Mayle
too. Mayle started to say something to Earnest Walton, but
Boffman cut him off telling him that he could not speak to
Walton.
Earnest Walton testified about this conversation. He testi-
fied that Boffman asked Mayle about what he wanted to do
with the Union. Shortly thereafter, both Mayle and Boffman
became angry. Boffman asked Mayle why he wanted the jan-
itor to get him union bills, mailing lists, and other records.
Boffman asked why Mayle did not ask Fred Boffman for this
information. According to Walton, Mayle began hollering
that he did not like the way Boffman was treating the mem-
bers. He denied hearing Boffman threaten Mayle.
Walter Boffman testified that he went to see Mayle at the
jobsite because Cobb had complained that Mayle was calling
him and attempting to get him to take union records from
the hall. Boffman said he went to the jobsite and told Mayle
that if he wanted records, he should see Fred Boffman or Re-
spondent’s secretary/treasurer, George Churchill. He pointed
out that telephone numbers and addresses of members were
not given out and must stay in the office unless their release
had been authorized by the membership. He asked Mayle
why he was trying to have Cobb get the records, to which
Mayle responded that he did not like the way the Union was
being run. Boffman said that if he had a problem he should
bring it up in a union meeting or talk about it with Fred
Boffman. Mayle then said that he did not like Boffman and
Boffman responded that he should not ask union employees
to steal records. Boffman told him not to do that. Boffman
denied threatening Mayle.
Ed Cobb, who is also an elected auditor in the Union, tes-
tified that for about a month during the time Mayle was
working at the Ross Laboratories job, Mayle would call him
to discuss the Union and express his dissatisfaction with the
way it was being run. Mayle would also encourage Cobb to
join his dissident group. According to Cobb, Mayle asked
him to make copies of records of union expenditures and a
membership mailing list and bring them to him. Cobb re-
ported this request to Fred and Walter Boffman.
I do not credit Mayle’s assertion that he was threatened
with loss of work by Walter Boffman. It is not supported by
the testimony of Earnest Walton, who Mayle characterized as
a friend of some 20 years. It is not supported by the facts,
as he was referred to jobs subsequent to the alleged threat.
Mayle is also not in the position of an ordinary member in
making allegations of discrimination. He is at the head of a
small group of members seeking to oust Fred Boffman and
Walter Boffman from their leadership positions and thus is
seeking to embarrass the Boffmans. I do credit the testimony
of Walter Boffman and Walton that Boffman did not threaten
Mayle with loss of work. I credit Boffman’s testimony that
he went to see Mayle because he believed that Mayle was
attempting to have Cobb copy and take from the union office
union records and mailing lists, contrary to hall rules.7 I do
not find his admonition to Mayle that he cease making such
requests of Cobb to be violative of the Act. He pointed out
to Mayle that if he wanted to see records, he should ask Fred
Boffman or Churchill, which is apparently the correct proce-
dure for seeking access to the records. I will recommend that
this complaint allegation be dismissed.
D. Did Respondent Violate the Act by Refusing to Allow
Mayle to View the Job Referral Lists on July 11, 1991
Mayle testified that he was at the union hall on July 11,
1991, and asked Business Agent Howard Woods if he could
see the referral lists for the week of June 10. Woods has pos-
session of the referral lists. According to Mayle, Woods re-
sponded to the request by saying that he did not have that
list. He had a referral list for June 25 with him. Mayle then
repeated his request, adding that he also wanted to see the
referral list for the week of June 17. Woods said he could
not see them.
Mayle testified that at a general membership meeting fol-
lowing this incident, Union Secretary/Treasurer George
Churchill told the membership that the union books were
open and available for inspection at the union hall during the
hours the hall was open. Mayle never thereafter asked
Churchill to see the books.
Woods acknowledged that Mayle asked to see certain re-
ferral lists and he refused to supply them. He explained that
if Mayle wanted to know about anything written in the lists
he would have verbally given him the information. He ex-
plained that he thought Mayle wanted to take the lists from
the union hall. However, nothing in the record would support
such a belief. In any event, if that was the reason for his re-
639LABORERS LOCAL 423 (DUGAN & MEYERS)
fusal, he could easily have allowed Mayle to inspect the lists
in his office and only refused their removal from the prem-
ises. Instead, he flatly refused to let Mayle see the lists.
Cindy Boffman, wife of Walter Boffman and a union em-
ployee, overheard the exchange between Mayle and Woods.
She testified that she heard Woods refuse to give the list to
Mayle and Wood’s offer to answer any questions Mayle
might have about the lists.
I believe it is clear that Woods’ refusal to let Mayle see
the referral lists requested violated the Act. The refusal was
an arbitrary refusal to comply with an employee’s reasonable
and manageable request for job referral information affecting
his employment. Mayle was not obligated to rely on Woods’
statement about what was in the lists, he had a right to see
them. I believe that Respondent recognized that Woods had
acted improperly as Secretary/Treasurer Churchill’s statement
that the Union’s records were open for inspection at a subse-
quent membership meeting appears to me to be a response
to Woods’ actions. I therefore find that Respondent violated
Section 8(b)(1)(A) of the Act by not allowing Mayle to view
the requested referral lists on July 11, 1991. Electrical Work-
ers IBEW Local 575 (Coleman Electric Co.), 270 NLRB 66,
70 (1984).
E. Did Respondent Unlawfully Threaten an Employee
with a Lawsuit in Response to His Signing an Unfair
Labor Practice Charge Against the Union
James Brown, a member of the Union off and on since
1969, testified that he signed an unfair labor practice charge
prepared by Mayle and filed on July 1, 1991, in Case 9–CB–
7954. He further testified that when he signed the charge it
was blank. It is clear from Brown’s testimony that he signed
the charge without having any idea whatsoever about what
it was about. At most, he was just doing a favor for Mayle.
After the filing of the charge, he was talking with some other
older members in the back of the union hall, when he was
summoned into Fred Boffman’s office. He met with Fred and
Walter Boffman. Fred Boffman asked him if he signed a
paper and Brown acknowledged that he had. Fred Boffman
then asked if he knew what was on the paper he signed and
Brown indicated that it had been blank. Fred Boffman then
asked him if he was involved in the suit they (presumably
Mayle’s dissident group) had against the Union, noting that
whoever was so involved was going to be countersued. Fred
Boffman then said he did not understand why Mayle was
causing so much trouble as the Union had been nice to him.
Both Fred and Walter Boffman gave testimony about this
incident. On direct examination neither denied Brown’s alle-
gation that he was threatened with a lawsuit for signing the
involved charge. On cross-examination, Fred Boffman did
deny the threat. I do not accept this denial. I instead credit
Brown’s version of the conversation. Brown had absolutely
no reason to lie about this incident and appeared to me to
be an entirely credible witness. On the other hand, Fred
Boffman, in his position as business manager of the Union,
was being repeatedly targeted by Mayle’s group in a series
of unfair labor practice charges. His frustration over these fil-
ings, which he took personally, was obvious at the hearing.
I find that the threat violates Section 8(b)(1)(A) of the Act.
It is obvious to me from the evidence that Fred Boffman was
not simply announcing his intention to protect his rights by
filing a lawsuit. The threat appeared to be intended to stifle
the protected activity of Brown, Mayle, and anyone else con-
nected with Mayle who had the temerity to file an unfair
labor practice charge against the Union. Operating Engineers
Local 450 (AGC of Houston), 267 NLRB 775 (1983).
F. Did Respondent Violate the Act By Violating Its
Hiring Hall Rules on or about August 16, 1990, by
Making Referrals to the Detriment of Matheny and
Other Employee Applicants Who Were Ahead of Those
Referred by the Union
On August 16, 1990, Mayle was at the hiring hall at about
7 a.m. and was referred to a job for Rudolph, which lasted
until Thanksgiving of that year. He testified that his name
was not called for this job, but rather, he was called into
Woods’ office and given the job referral by Woods and
Union Business Agent Sam McClain. Woods was also look-
ing for another employee to send to this job and asked Mayle
if he knew where employee Greg Porter could be reached as
he was not in the hall. Mayle told them that Porter was en-
gaged in putting a roof on his mother’s home in Dayton. At
about this time, employee Junior Phillips walked into the hall
and McClain announced that Phillips would be sent to the
job. Phillips was called into the office and given a referral
slip to the Rudolph job. Mayle testified that Matheny was in
the hiring hall at the time of these referrals as were a number
of other unidentified employees. Phillips could not recall
whether Matheny was there or not and could not recall
whether his name was called from the referral list in ref-
erence to this job.
Matheny testified that he was at the hall at the time of
these job referrals and did not hear any names called that
day. He verified that Mayle was summoned into Woods’ of-
fice and from his observation believed Woods was giving
Mayle a referral slip. He also testified that Junior Phillips
came into the hall and was motioned into Woods’ office.
When Mayle and Phillips came out of Wood’s office,
Matheny asked Mayle where he was going to work and
Mayle told him.
On the referral list utilized on this date, Mayle was num-
ber 14, Matheny was number 19, and Junior Phillips was
number 182. The evidence reflects that Phillips was not re-
quested by name by the employer Rudolph nor were any spe-
cial skills involved in the jobs which Mayle and Phillips
were asked to do for Rudolph. Woods denied that Matheny
was in the hiring hall on the date in question; however, it
is clear from his testimony that he was remembering a job
given to Mayle in August 1991, not 1990. Therefore, his de-
nial is virtually meaningless. Woods did not deny any of the
specific testimony given by Mayle with respect to this job
referral.
I find that Respondent clearly violated its hiring hall rules
with respect to the referral of Phillips on August 16, 1990,
to the detriment of Matheny and by so doing violated Section
8(b)(1)(A) and (2) of the Act.
G. Did Respondent Unlawfully Fail to Comply with Its
Rules Governing Referrals on a Number of Occasions
From December 11, 1990, through June 26, 1991
Aside from the referrals of Mayle and Phillips described
above, the remaining complaint allegations deal with alleged
unlawful variances from established rules governing referrals
640 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Fred Boffman testified that he looked after his family members.
Ken Boffman, Walter Boffman’s son, was fired as steward from Ro-
Dan in May 1991 and then was referred for a physical with Teco
Glass in early June 1991. Respondent’s auditor, Arrington, was con-
sistently referred to employment by Respondent. Thus, he was em-
ployed from January through at least August 1990 by Detzel Con-
struction for a significant number of hours each month, was referred
for employment with Rudolph in at least September and November
1990, was employed by Harris Masonry Company Construction for
a significant number of hours each month from November 1990
through March 1991, was referred to employment with Smoot for a
period of time in May 1991, was referred to and employed by Teco
Glass in June 1991, and was referred to employment with
Petroykorski Construction in June 1991. Thus, it is clear that
Arrington was employed almost consistently from at least January
1990 through June 1991, and had previously been employed for al-
most a year by Smoot from September 1988 through August 1989,
when he was terminated for unreported absences. A review of the
evidence also discloses that Marvin Barrett, Robert Bush, Eli Madi-
son, John Berry, and Charles Wiegand were all referred to employ-
ment frequently during periods of time when Mayle was unem-
ployed, and along with numerous other referral applicants, was avail-
able for referral and was usually in a position on the out-of-work
or referral list more favorable than these other workers.
9 Virtually every witness testified that Woods’ regularly called
names from the out-of-work list on days when there are jobs avail-
able. He normally called these names between the time the hall
opens at and 7 a.m., depending upon how distant the job is from
the union hall. Because Mayle rarely went to the hall before 8 a.m.,
his testimony that he did not hear names called does not establish
the fact that names were or were not called on a particular day. He
simply was not at the hall at the time the names would normally
be called. Similarly, because he was not at the hall at this time, the
fact that someone below him on the out-of-work list was referred to
a job on a given date does not prove that Mayle’s name was not
called and he simply was not in the hall to respond. Although I al-
lowed Mayle to give a substantial amount of hearsay evidence relat-
ing to what unidentified persons told him had happened at the hall
at times when he was not present, I will not rely on this evidence
alone to find a violation.
over an approximate 7-month period. To these allegations,
Respondent offers a number of defenses that are similar and
therefore these allegations will be discussed together. The
evidence presented by the General Counsel would indicate,
though not necessarily prove, that Respondent favors some
members, including officers of the Union and their relatives,
in the referral process. One of the problems with the proof
in this case, and in any case brought against this Local on
the question of referrals, is the lack of consistent record
keeping. Some referrals are evidenced by work orders and
others are not. There is no procedure by which a job appli-
cant can easily prove that he was at the hall on a given date
or at a given time. This lack of procedural safeguards gives
the opportunity to the leadership of the Union to exhibit fa-
voritism without real fear that such favoritism can be proven.
The Union also does not follow its contract in certain in-
stances. For example, it does not adhere to the contractual
limit of 1-year recall rights. Fred Boffman testified that the
Union will comply with a contractor’s request for a named
employee in almost any circumstance. However, this practice
is not consistently adhered to. On one major job discussed
in the record, the G.F.C. job, it was shown that the employ-
er’s foreman requested several employees by name, but Re-
spondent refused to dispatch these employees. Although this
practice is relied on by Respondent for some referrals, it
does not affect my ruling on the various complaint allega-
tions dealing with referrals. Its inconsistent application does,
however, support the General Counsel’s assertion that the op-
eration of the hiring hall is not always in accordance with
established procedures. Further, as it was not shown to be a
consistently followed past practice, I find that it is a separate
violation of Section 8(b)(1)(A) of the Act.
Respondent also follows the practice of naming stewards
to jobs apart from the ordinary referral process, though the
contract requires that a steward be named from the ranks of
employees referred to the job pursuant to the normal referral
procedures. It does appear to have consistently adhered to
this practice.
The Union also reserves the right to subjectively assess the
skills of job applicants to meet skill requests of employers.
I say subjectively because though the Union has required job
applicants for some time to fill out an application which lists
their skills, these application forms are not regularly updated
to reflect added experience or skills. Nor is the fact that the
applications may play a part in the referral process noticed
anywhere in the hiring hall, as are most of the other rules
regarding referrals. The referral lists do not reflect the skills
of the various applicants listed thereon. They are simply di-
vided into group A through D, dictated by experience. There
was no clear showing by specific example of referrals being
made on the basis of skill, though Fred Boffman indicated
they were. Woods testified that he, at least on occasion, will
announce special skills required in a job when announcing
the job before calling names. In response to such an an-
nouncement, he testified that some applicants come to his
window, say they possess the required skill, and are given
the referral. He evidently dispenses with the calling of the
out-of-work list in such a circumstance. I cannot find that
any job actually involved in this case required a skill that ei-
ther Matheny or Mayle did not possess.
I do not believe the evidence reflects widespread or perva-
sive abuse of the referral process. It does clearly establish
certain violations of that process and strongly hints at oth-
ers.8 In the remedy section of this decision, I will rec-
ommend certain procedures be instituted to help deter abuse
and make any abuse detectable. With this foreword, I will
discuss the specific instances in which the Respondent is al-
leged to have violated the Act.
1. The December 11, 1990 referral of Walton and Berry
The consolidated complaint alleges that Respondent re-
ferred men to a job with Field at about 10:30 a.m, after the
hall had closed at 10 a.m. Certainly, the facts would reflect
that Respondent referred Arthur Berry and Earnest Walton to
Field after the hall closed in response to what Respondent
calls an emergency situation. Mayle testified about this inci-
dent, and I find his testimony somewhat less than credible.
He testified that he was present at the union hall on Decem-
ber 11, 1990, from approximately 7:30 a.m. for about 1 to
1-1/2 hours. There were approximately 30 to 35 people in
the hall that day. No names were called aloud while Mayle
was at the hall.9 That day Mayle observed Earnest Walton
in Woods’ office through the glass which connects the hiring
hall room and Woods’ office. He saw Walton go to the glass
and motion for Arthur Berry to come into the office area.
641LABORERS LOCAL 423 (DUGAN & MEYERS)
10 It would appear that the referral of Raymond Price would also
fall into this category.
11 Mayle did not maintain records of his attendance at the hall. He
testified that during December 1990 and January and February 1991
he went to the hall almost every day. However, his attendance at the
hall was usually after 8 a.m.
Berry went to the window and then into the office. Mayle
saw nothing further of Berry or Walton that day.
Walton and Berry were employed by Field and Associates,
Inc. on December 11, 1990, at the Bureau of Worker Com-
pensation Building in Columbus, Ohio, for 2 days. They
worked 4 hours on December 11 and 8 hours on December
12. Walton and Berry were employed pursuant to an emer-
gency request by the project manager of the Union for mi-
nority employees. This is the only time that Walton and
Berry had worked for Field and Associates from January 1,
1989, to the present. Mayle, Walton, and Berry are all black.
Respondent does not have a referral book covering the period
including December 11, 1990. That book is missing.
With regard to this incident, Mayle agreed with Respond-
ent’s counsel that if the Union had not filled the employer’s
emergency request, the employer, whether authorized by the
contract or not, would have hired two employees off the
street. He also agreed that the procedure to be followed in
this circumstance would be to fill the request with the two
minority applicants present at the hiring hall who had the
lowest numbers on the referral list. This list was not avail-
able and thus, it cannot be said with certainty that Mayle had
a lower number than either Walton or Berry. The General
Counsel points to the fact that Walton had worked more re-
cently than Mayle, so one could assume that Mayle would
have a lower number than Mayle. However, this assumes that
Mayle had not refused a regular job in the interim and thus
lost his place on the list. It would also assume that Walton’s
employment was for more than 7 days because if it was for
less he would not lose his position on the referral list. The
record is silent on these points. Moreover, all the arguments
advanced by counsel on brief assume Mayle was in the hall
and in a position to accept a job referral. Everyone who testi-
fied about the incident, except Mayle, indicated that the re-
ferrals were made after the hall closed and not at a time
when Mayle was at the hall. How Mayle found out that Wal-
ton and Berry were referred on December 11, 1990, to the
Field job, I do not know. I do not, however, believe it was
as he testified. I do credit Fred and Walter Boffman’s ver-
sion of what happened and do not believe their response to
an emergency call for laborers after the hall closed violates
the Act. There are no written provisions covering emergency
situations because, as Woods testified, they are by their na-
ture very different for ordinary referals and different from
one another. Under these circumstances, I do not find a vio-
lation of the Act.
2. The January 1991 referrals to G.F.C.
Between January 17 and 28, 1991, employees Danny
VanCouren, Claude Dickerson, Hal Failrey, Tony Young, Eli
Madison, Marvin Barrett, and Charles Wiegand were referred
by the Union to employment with G.F.C. Marvin Barrett was
employed by G.F.C. for approximately 389.5 hours from
payroll period ending February 5 through payroll period end-
ing April 23, 1991. John Berry was employed by G.F.C. for
249 hours during the payroll period ending March 5, 1991.
Robert Bush was employed by G.F.C. for 417.5 hours from
payroll period ending February 12 through payroll period
ending April 28, 1991. Claude Dickerson was employed by
G.F.C. for 368 hours during the period from payroll period
ending February 5 through payroll period ending March 29,
1991. Eli Madison was employed by G.F.C. for 304 hours
during the period from payroll period ending February 5
through March 28, 1991. Raymond L. Price was employed
by G.F.C. for 346 hours during the period from payroll pe-
riod ending February 26 through payroll period ending April
9, 1991. Danny VanCouren was employed by G.F.C. for 375
hours during the period from payroll period ending January
29 through April 5, 1991. Charles A. Wiegand was employed
by G.F.C. for 360 hours during the period form payroll pe-
riod ending February through April 5, 1991. Anthony Young
was employed by G.F.C. for 303 hours during the period
from payroll period ending February 5 through March 29,
1991. These are the only times that these individuals were
employed with G.F.C. from January 1, 1989, to the present.
On the out-of-work or referral list in effect from January
14–28, 1991 (with an automatic checkoff for January 31,
1991), James Brown was number 30, Claude Dickerson—52,
Eli Madison—54, James Matheny and Charles Schaeffer—
77, Hal Fairley—106, Michael Mayle—128, Marvin Bar-
rett—132, and Raymond Price—226. This list did not con-
tain the names of Charles Wiegand or Robert Bush. On the
out-of-work list dated January 28 to February 4, 1991,
Claude Dickerson was number 6, Eli Madison—8, James
Matheny—28, Hal Fairley—49, Michael Mayle—68, Marvin
Barrett—72, and Raymond Price—152. The names of
Charles Wiegand and Robert Bush do not appear on this list.
On the out-of-work list dated from February 11–18, 1991,
Michael Mayle was number 69, and Raymond Price was 146.
The General Counsel contends that the referrals of
Weigand and Barrett were improper because Barrett had a
higher number than Mayle and Wiegand was not on the
list.10 He asserts on brief that Mayle was at the hiring hall
on the date or dates these men were referred to work for
G.F.C. I cannot find evidence showing that Mayle was at the
hall when these men were referred or if he were there, evi-
dence to establish that he was at the hall when names were
called to fill the job openings.11 He did not testify that he
was at the hall when the referrals were actually made and
had no independent knowledge that they were not made in
accordance with the hiring hall rules. Though Wiegand was
not on the list, there is no showing that he was not the only
person in the hall available to take the job when it was avail-
able. Again, because the hiring hall rules require the physical
presence of applicants when the referral list is called, I can-
not find that the mere fact that Mayle was not referred to
a job on a given date when other applicants lower on the re-
ferral list than he were so referred, establishes a deviation
from the hiring hall rules or a violation of the Act. Mayle’s
failure to go to the hall at times when jobs were normally
called severely hurts his case in this regard. I will rec-
ommend that this complaint allegation be dismissed.
3. The referral of Robert Bush to the G.F.C. project
Robert Bush was employed and served as steward on the
RCA job in Circleville, Ohio, with Rudolph and when that
job was completed, he was sent directly to work with G.F.C.
642 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 This referral evidently took place around the first week of Feb-
ruary 1991
G.F.C. needed employees at the time so Bush was referred
to G.F.C. Fred Boffman testified that the employer called the
hall stating that it had run short of help, so he just dispatched
Bush to the job.12 There is no showing that any emergency
existed or special skill required that was possessed by only
Bush that would justify bypassing the normal referral process
to fill the employer’s need. Woods testified that he referred
Bush to the G.F.C. job as steward by calling the out-of-work
list. Fred Boffman first testified that Bush was not a steward
on this job, then equivocated. Given the variance between the
two union officials testimony, and the lack of any written
document to indicate that Bush was a steward on this job,
I do not credit this portion of their testimony. I do credit
Fred Boffman’s description of how Bush was referred and
find it to be totally at odds with established referral proce-
dures. Therefore, I find that the Respondent violated its refer-
ral procedures in this instance and the Act as well.
4. The February 14, 1991 referral of Cleveland
Cunningham to the Limited project
On February 14, 1991, Mayle was at Respondent’s referral
hall for approximately 1 hour beginning at around 8 a.m. Ap-
proximately 50 to 60 people were at the hall at that time.
While Mayle was at the hall that day no names were called
out loud. Cleveland Cunningham was employed by Smoot
from February 15–22, 1991, at the Limited warehouse job in
Columbus, Ohio. Cunningham was not requested by name
for the Limited job and the Company had no right to request
him by name inasmuch as he had not worked for the Com-
pany prior to that time. Cunningham worked as a general la-
borer and did not serve as a steward or foreman on the Lim-
ited job.
On the out-of-work list dated February 11–18, 1991,
Mayle was number 69. Tom Cunningham’s name appears as
the last name on the list at 297. The General Counsel con-
tends this is a violation of the Respondent’s referral rules.
However, as Mayle was not shown to be at the hall when
names were normally called for jobs on this date, I cannot
be certain that Mayle’s name was not called and that
Cunningham was not properly referred. Cunningham was not
called as a witness. In the circumstances, I cannot find that
it has been proven that Respondent violated its hiring hall
rules in this instance.
5. The May 1991 referral of Willie Arrington to the
Limited project
Respondent’s auditor, Willie Arrington, was employed by
Smoot from May 7–21, 1991, at the Limited distribution cen-
ter in Columbus, Ohio. Arrington was not requested by name
in May 1991 for employment at the Limited warehouse inas-
much as Arrington had been terminated from his previous
employment with Smoot in August 1989 for three absences
without calling in. He served neither as steward nor foreman
on the Limited job.
On the out-of-work list dated May 6–13, 1991, Mayle was
number 20 and Arrington was number 145. There is no
showing with respect to what time Mayle arrived at the hall
on May 6, when the referral was made. The only evidence
on this point is his general testimony that he normally came
to the hall around 8 a.m. or later. Mayle testified that he did
not see Arrington at the hall on May 6, which would be con-
sistent with Arrington having been referred to a job an hour
or so earlier when names for referral were normally called.
Arrington was not called as a witness. In the circumstances,
I do not find that it has been proven that Respondent violated
its hiring hall rules by referring Arrington ahead of Mayle
on May 6, 1991.
6. The appointment of Robert Bush to Ro-Dan
as steward
Robert Bush was employed by Ro-Dan from May 29
though August 28, 1991, at a job at the Anheuser Busch
plant in Columbus, Ohio. While Ro-Dan Owner and Project
Manager Cleophus Roberson Jr. had known Bush as a pipe-
fitter working in the field for some 15 years and from em-
ployment on other jobs, Bush had never worked for Ro-Dan
prior to May 1991. Bush served as steward (replacing Ken
Boffman) on the Anheuser Busch job. At the time of Bush’s
hire by Ro-Dan, there were other laborers on the Anheuser
Busch job. Bush was also requested by the employer by
name.
On the out-of-work list dated May 20 through June 13,
1991, Mayle was number 12 and Robert Bush was number
201.
This is an instance in which Respondent’s practice of ap-
pointing stewards apart from the referral procedure comes
into play. The General Counsel notes that the Board allows
the appointment of stewards in this fashion where the con-
tract between the union and employer calls for this method
of selecting stewards. Therefore, the Board has found that
there is nothing inherently discriminatory about this practice.
The Board has heretofore, in its earlier decision involving
this Union, approved a deviation from the contract provisions
based on past practice. This deviation involves the Union’s
rule that accepting a 7-day job causes an employee to lose
his position on the out-of-work list rather than a 3-day job,
as specified in the contract. I believe the Union’s established
practice of appointing stewards should be similarly allowed.
The practice is obviously acceptable to involved employers
and though known to the Union’s membership, has not been
the subject of any widespread membership complaint. For
these reasons, I will not find that Respondent violated the
Act in its appointment of Bush as steward on the Ro-Dan
job.
7. The June 1991 referrals to Teco Glass
In June 1991, more than 60 employees were referred to
take physical examinations a prehiring condition for employ-
ment with Teco Glass. Those who passed the physicals were
to be employed by that company on a furnace job. Referral
applicants who were not referred to take the physical were
unable to be employed by Teco Glass, inasmuch as that was
a condition of employment.
On June 3, 1991, James K. Brown went to the union hall
at approximately 8 a.m. in order to renew his position on the
out-of-work list. At the referral hall window, Fred Boffman
asked him if he wanted to go to work at Teco Glass. He did
and was referred for a physical and evidently passed. Brown
was employed at Teco Glass for approximately 3 days at
643LABORERS LOCAL 423 (DUGAN & MEYERS)
13 As noted earlier, Respondent also makes referrals in emergency
situations without any established procedure. Emergency referrals,
based on this record, are fairly rare and by their very nature do not
appear to be subject to any rigid set of referral rules. Respondent
has not been shown to have discriminated against any applicant or
group of applicants in its referrals in emergency situations and I do
not find that it has violated the Act in its handling of such situations.
For reasons set forth earlier in this decision, I do not find Re-
spondent’s practice with respect to appointing stewards to violate the
Act.
which time he had a heart attack and thereafter was unable
to continue his employment with that company.
Mayle reported to the union hall on June 3, 1991, at ap-
proximately 8 or 8:30 a.m. in order to check off or renew
his name on the work list. There were quite a few people
present at the hall that day. No union agent asked Mayle
about employment with any company that day and nothing
was said to him about employment or taking a physical for
employment with Teco Glass. Mayle was at the union hall
every day during the week of June 3, 1991, and nothing was
ever said to him about Teco Glass or possible employment
with that company.
Numerous employees were referred to work with Teco
Glass who had been referred to other jobs more recently than
Mayle. Arrington was referred to work at Teco Glass and
had been referred to employment at numerous companies, in-
cluding, but not limited to Rudolph, Smoot, and Detzel Con-
struction. Danny VanCouren was employed at Teco Glass
and, among other places, had been referred to employment
with G.F.C. in February 1991. John Berry was referred to
Teco Glass for employment and had worked for numerous
employers in the past 2 years, including, but not limited to,
G.F.C. and Chet Baker and Company. Walter Boffman’s son
Ken Boffman was referred to Teco Glass, notwithstanding
having been employed, among other places, at Ro-Dan as re-
cently as May 1991. Marvin Barrett was referred to employ-
ment with Teco Glass and had been referred to employment
with numerous employers, including, but not limited to, Ru-
dolph and G.F.C. Eli Madison was referred to employment
with Teco Glass and had recently been employed by Ro-Dan
and G.F.C. Robert Bush was employed by Teco Glass and
had previously been employed by numerous employers, in-
cluding, but not limited to, Rudolph, G.F.C., and Ro-Dan.
On the out-of-work list dated June 3–17, 1991, Mayle was
position number 9, James Brown—43, Eramus Ragland—62,
Bill Arrington—107, Ken Boffman—247, Claude
Dickerson—253, and John Berry—274. Robert Bush’s name
did not appear on this list. All but Mayle were referred to
employment with Teco Glass.
In this instance, I find that Respondent did violate its re-
ferral rules and the Act by not referring Mayle to take a
physical for potential employment with Teco Glass. He was
certainly at the union hall on June 3, as he was checked off
and his name appears on the referral list for that week. He
was there at the same time as Brown who was referred
though his position on the referral list was higher than that
of Mayle. There was no credible showing that Mayle was
physically unqualified or lacked the necessary training or ex-
perience to work on the Teco Glass job. Thus, there appears
to be no legitimate reason for bypassing Mayle.
8. The June 1991 referral of John Berry to
Cleveland Cement
John Berry was employed by Cleveland Cement from June
26 through July 18, 1991, and from July 25 through Septem-
ber 17, 1989. During the pay period ending July 2, 1991,
Berry was employed 45.5 hours, during the pay period end-
ing July 9, 1991—26.5 hours, during the pay period ending
July 16, 1991—46 hours, and during the pay period ending
July 23, 1991—16 hours.
On the out-of-work list dated June 25, 1991 through July
1, 1991, Mayle was number 4, Eramus Ragland—46, Bill
Arrington—82, Hal Fairley—101, Tome Cunningham—126,
Marvin Barrett—136, Ken Boffman—196, Claude
Boffman—198, Claude Dickerson—200, and John Berry—
212. There is no copy of a work order referring John Berry
to Cleveland Cement in the book dated June 26, 1991, or the
book immediately covering the period before that.
Again, though it would appear that Berry was referred to
this job out of turn, there is no proof that this is so. There
is no evidence regarding what happened at the hall on the
day he was referred or whether Mayle or any other person
having a lower position on the referral list was physically
present to accept the involved referral. In the circumstances,
I do not find a violation of the Act.
9. Conclusions with regard to the referral process
Referrals made pursuant to an exclusive hiring or referral
hall arrangement must be based on objective criteria applied
in a nondiscriminatory manner. Iron Workers Local 505
(Snelson-Anvil), 275 NLRB 1113 (1985); Plumbers Local
619 (Bechtel Corp.), 268 NLRB 766 (1984); Operating Engi-
neers Local 406 (Ford, Bacon & Davis Construction), 262
NLRB 50 (1982); and Plumbers Local 392 (Kaiser Engi-
neers), 252 NLRB 417 (1980). Here, while Respondent has
established objective criteria by which it purports to operate
its exclusive hiring hall, it has failed to follow those proce-
dures consistently in making referrals. The record evidence
establishes that Respondent will refer individuals specifically
requested by name by a contractor even though that person
has never worked for the contractor before or has worked for
that contractor more than the 1-year recall period provided
for in the contract. Respondent relies on and makes it own
assessment of whether the referral applicants on the list have
specific job skills or experience which might be called for
in a job even though the hiring hall rules do not provide for
any reference to such job skills or experience and Respond-
ent does not, in any regular or orderly fashion, maintain
records relating to referral applicant’s abilities in this regard
or obtain any kind of updated or current status with regard
to such job skills, qualifications, or experience which referral
applicants may have. Respondent makes referrals, at least on
occasion, without calling out the names from the referral list
in accordance with its established procedures.13 The General
Counsel has established that Respondent has violated Section
8(b)(1)(A) and (2) of the Act by failing to comply with its
own established procedures with regard to the operation of
the hiring hall.
CONCLUSIONS OF LAW
1. Dugan & Meyers Interest, Inc., G.F.C. Inc., the Sher-
man R. Smoot Company, Field and Associates, Inc., Sasco
Brick Contractors, Inc., Teco Glass, Inc., Cleveland Cement
644 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 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.
15 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.’’
Contractors, Inc., Ro-Dan Mechanical Services, Inc., and
Rudolph/Libbe, Inc. are all employers engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has violated Section 8(b)(1)(A) of the Act
by:
(a) Refusing to comply with an employee’s request to
view Respondent’s job referral records.
(b) Threatening an employee with a lawsuit for signing an
unfair labor practice charge filed against Respondent.
4. Respondent has violated Section 8(b)(1)(A) and (2) of
the Act, by:
(a) Making referrals to Rudolph/Libbe, Inc. on August 16,
1990, in violation of its established and posted referral rules
and procedures.
(b) Referring employee Robert Bush to employment with
G.F.C. Inc. in February 1991, in violation of its established
and posted referral rules and procedures.
(c) Referring employees to employment with Teco Glass,
Inc., in June 1991, in violation of its established and posted
referral rules and procedures.
5. The above-unfair labor practices affect commerce within
the meaning of Section 2(6) of the Act.
6. The Respondent did not engage in the other unfair labor
practices alleged in the consolidated complaint.
REMEDY
Having found that Respondent has engaged in conduct in
violation of Section 8(b)(1)(A) and (2) of the Act, I will rec-
ommend that it cease and desist from such conduct and take
certain affirmative action to effectuate the policies of the
Act.
To remedy Respondent’s unlawful violation of its estab-
lished and posted referral rules and procedures, it is rec-
ommended that Respondent be ordered to make whole Mi-
chael Mayle and James Matheny for any loss of earnings
they may have suffered by reason of Respondent’s unlawful
conduct. Backpay shall be computed in the manner set forth
in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
thereon computed in accordance with New Horizons for the
Retarded, 283 NLRB 1173 (1987).
There may be other applicants who were likewise injured
by Respondent’s unlawful deviation from its established re-
ferral rules, though proving their existence is unlikely be-
cause of the lack of adequate recordkeeping by Respondent.
Thus, I would additionally recommend that Respondent be
ordered to establish a written attendance procedure for its
hiring hall which would record the date and hour of the
physical presence of job applicants. Similarly, I would rec-
ommend Respondent be ordered to record, perhaps on its re-
ferral lists, the names of those applicants who refuse employ-
ment on a given date. Lastly, I would recommend that Re-
spondent be ordered to post notice to its members and appli-
cants that it relies on their application forms in making refer-
rals and establish a procedure whereby applicants can regu-
larly update their application forms.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended14
ORDER
The Respondent, Laborers’ International Union of North
America, Local Union No. 423, AFL–CIO, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Refusing to comply with an employee’s request to
view Respondent’s job referral records.
(b) Threatening an employee with a lawsuit for signing an
unfair labor practice charge filed against Respondent.
(c) Operating its hiring hall by making referrals for em-
ployment that deviate from and violate its established and
posted referral rules and procedures.
(d) Failing and refusing to refer Michael Mayle to employ-
ment with Teco Glass, Inc. and G.F.C. Inc. or any other em-
ployer, and failing and refusing to refer James E. Matheny
to employment with Rudolph/Libbe, Inc., or any other em-
ployer, pursuant to the operation of an exclusive hiring or re-
ferral hall in a manner that deviates from and violates its es-
tablished and posted referral rules and procedures.
(e) In any like or related manner restraining or coercing
applicants for referral in the exercise of rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Operate its hiring hall in the manner described in the
established and posted rules and in accordance with objective
criteria.
(b) Make whole Michael Mayle and James E. Matheny for
any losses they may have suffered by virtue of Respondent’s
unlawful deviation from and violation of its established and
posted referral rules, in the manner described in the remedy
section of this decision.
(c) Establish a written attendance procedure for its hiring
hall which would record the date and hour of the physical
presence of job applicants, and record the names of those ap-
plicants who refuse employment on a given date.
(d) Post notices to its members and applicants that it relies
on their application forms in making referrals and establish
a procedure whereby applicants can regularly update their ap-
plication forms.
(e) Preserve and, on request, make available to the Board
or its agents for examination and copying, all referral records
and other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(f) Post at its business office and meeting places in Co-
lumbus, Ohio, copies of the attached notice marked ‘‘Appen-
dix.’’15 Copies of this notice, on forms provided by the Re-
gional Director for Region 9, after being signed by Respond-
ent’s authorized representative, shall be posted by Respond-
ent at its business office and meeting places immediately
upon receipt and be maintained by it for 60 consecutive days
in conspicuous places, including all places where notices to
members and applicants are customarily posted. Reasonable
645LABORERS LOCAL 423 (DUGAN & MEYERS)
steps shall be taken to ensure that the notices are not altered,
defaced, or covered by any other material.
(g) Notify the Regional Director in writing within 20 days
of the date of this Order what steps Respondent has taken
to comply.