Laborers Local 423 (G.F.C.)

National Labor Relations Board - Board Decisions

Feb 28, 1994

313 N.L.R.B. 807 (N.L.R.B. 1994)

807
313 NLRB No. 137
LABORERS LOCAL 423 (G.F.C.)
1 No exceptions were filed to the judge’s conclusion that the Re-
spondent violated Sec. 8(b)(1)(A) of the Act by making unspecified
threats of reprisal against members and applicants because they filed
charges with the Board or gave testimony under the Act.
2 The General Counsel and Charging Party Henderson have ex-
cepted to some of the judge’s credibility findings. The Board’s es-
tablished policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the rel-
evant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for
reversing the findings.
3 Charging Party Henderson’s motion for rehearing is denied. Con-
trary to his assertion, his testimony was not ignored; it was discred-
ited. We also find without merit any contentions of bias and preju-
dice on the part of the judge. We perceive no basis in the record
or the judge’s decision for finding that the judge prejudged the case,
made prejudicial rulings, or demonstrated bias against Henderson.
4 According to Respondent Business Agent Woods’ credited testi-
mony, he did not see Henderson in the hall during that period, even
though Woods was there every day from 5 or 5:30 a.m. to around
10:30 a.m.
Laborers’ International Union of North America,
Local 423, AFL–CIO (G.F.C., Inc., and The
Altman Company) and Lewis J. Henderson and
Michael A. Mayle. Cases 9–CB–8369 and 9–CB–
8472
February 28, 1994
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
On July 9, 1993, Administrative Law Judge Walter
H. Maloney issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and
Charging Party Henderson filed a motion for rehearing.
The National Labor Relations Board has considered
the decision and record in light of the exceptions,1
brief, and motion and has decided to affirm the judge’s
rulings, findings,2 and conclusions,3 and to adopt the
recommended Order.
1. We agree with the judge’s dismissal of the com-
plaint allegation that in February 1993 the Respondent
violated Section 8(b)(1)(A) and (2) of the Act by re-
moving Charging Parties Henderson and Mayle and
other applicants from their places on the hiring hall re-
ferral list to the bottom of the list. The Respondent
acted in accord with its rule that, if an applicant is ab-
sent from the hall when a regular job is called, his
name will be moved to the bottom of the list.
We agree with the judge that the rule is not a per
se violation of the Act; that the credited testimony es-
tablishes that the rule has been in effect, and that signs
disclosing the rule have been prominently posted in the
hiring hall since, at least, May 1992; and that there is
no evidence that any applicant whose name was moved
to the bottom of the list was in the hall on February
22, 1993, when the job was announced.
The record reveals that Henderson admitted that he
has not been to the hall to seek work since January 1,
1993, and that Mayle admitted that he has maintained
his practice of not arriving at the hall until 8:30 a.m.
despite his admitted awareness that job referrals are al-
most always completed by 7:30 a.m. Thus, by their
own admissions, both Henderson and Mayle were un-
available for that referral.
2. We also agree with the judge’s dismissal of the
complaint allegation that the Respondent violated Sec-
tion 8(b)(1)(A) and (2) of the Act by its July 1992 re-
ferral of applicants to G.F.C., Inc. in a manner that de-
layed Henderson’s actual dispatch to the job. The re-
ferral process was in two stages: the referral to take
tests to screen for lead levels and drugs, and the dis-
patch to the job itself. There is no evidence that the
referral to the tests was irregular or improper.
Dispatch to the job did not require separate work or-
ders; written work orders had already been submitted
for the tests. There is little credible evidence beyond
this use of oral dispatches as to how the dispatches
were actually made. Henderson, who was number 33
on the out-of-work list when the referrals for the blood
tests were made, was not among the first 46 applicants
who were dispatched to the job on Monday, July 13,
1992; he was dispatched a week later. There is, how-
ever, no credible evidence that Henderson (or any ap-
plicant seemingly dispatched out of order) made him-
self available for dispatch earlier by being present in
the hall or even by telephoning the hall.4 Conversely,
on Wednesday, July 15, 1992, during the first week of
the G.F.C. job, Woods did receive a phone call from
Henderson inquiring about a dispatch to G.F.C. Hen-
derson received the next available dispatch and re-
ported to work the following Monday, July 20, 1992.
For the above reasons, we agree with the judge that
the General Counsel has failed to establish that the Re-
spondent operated its hiring hall in a discriminatory or
otherwise unlawful manner. Accordingly, we agree
with the judge’s dismissal of these complaint allega-
tions.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders the Respondent, Laborers’ International Union
of North America, Local 423, AFL–CIO, Columbus,
Ohio, its officers, agents, and representatives, shall
take the action set forth in the Order.
Carol L. Shore, Esq., for the General Counsel.
Lawrence M. Oberdank, Esq., of Cleveland, Ohio, for the
Respondent.
808 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The principal docket entries in this case are as follows:
Charge filed against the Respondent in Case 9–CB–8369 by Lewis
J. Henderson on November 23, 1992; complaint issued by the Re-
gional Director, Region 9, against the Respondent on January 5,
1993; Respondent’s answer filed on January 28, 1993; charge filed
against the Respondent in Case 9–CB–8472 on March 12, 1993, by
Michael A. Mayle and amended on April 26, 1993; complaint issued
by Regional Director, Region 9, against the Respondent on April 27,
1993, and consolidated with the earlier complaint on that date; Re-
spondent’s answer filed at the hearing; hearing held in Columbus,
Ohio, on May 12 and 13, 1993; briefs filed with me by the General
Counsel and the Respondent on or before June 29, 1993.
2 Respondent admits, and I find, that, through the Associated Gen-
eral Contractors of America, Ohio Building Chapter, Central Ohio
Division, it is in contractual relationship with Glass Furnace Com-
pany, Inc. (G.F.C., Inc.), the Altman Company, and other employers,
each of whom are engaged in the building and construction industry.
G.F.C. and Altman, respectively, purchase annually at jobsites lo-
cated in the State of Ohio directly from points and places located
outside the State of Ohio goods and merchandise valued in excess
of $50,000, and are employers engaged in commerce within the
meaning of Sec. 2(2), (6), and (7) of the Act. The Respondent is
a labor organization within the meaning of Sec. 2(6) of the Act.
3 Certain transcript errors were noted and corrected.
4 Some laborers who are referred to jobs have only general skills
in the trade while others are classified as mason tenders and actively
assist bricklayers in laying brick and block. When mason tenders are
requested, the Union makes an effort to refer those who have reg-
istered as possessing those skills.
5 Laborers Local 423 (Great Lakes Construction), 298 NLRB 498
(1990) (Laborers I); Laborers Local 423 (Dugan & Meyers), 308
NLRB 635 (1992) (Laborers II).
6 Most referrals are made from the ‘‘A’’ list which contains the
names of applicants with 3 or more years of experience in the indus-
try. The contract makes provisions for B, C, and D lists for appli-
cants with less experience and for trainees with no experience. In
practice, there is only one list for these three classifications. The B-
C-D list is not used unless the contractor calls for a trainee or the
A list has been exhausted and unassigned jobs still remain.
7 The Respondent explained that it inaugurated this rule to prevent
applicants who were high on the register from avoiding difficult, un-
desirable, or onerous assignments and passing them on to lower
DECISION
STATEMENT OF THE CASE
WALTER H. MALONEY, Administrative Law Judge. This
case came on for hearing before me at Columbus, Ohio, on
a consolidated unfair labor practice complaint,1 issued by the
Regional Director for Region 9, which alleges that Respond-
ent Laborers’ InternationaI Union of North America, Local
423, AFL–CIO (Union)2 violated Section 8(b)(1)(A) and (2)
of the Act. More particularly, it alleges that the Respondent
threatened Lewis J. Henderson with a lawsuit and loss of his
union card because he filed charges under the Act, failed to
adhere to existing hiring hall procedures and thereby by-
passed Henderson and others for referral to a G.F.C. job, and
later failed to adhere to other existing hiring hall procedures
by dropping Henderson, Charging Party Michael A. Mayle,
and others to the bottom of the referral list because they did
not respond when their names were called for job referrals.
Respondent denies any threat to Henderson and insists that
its hiring hall rules are valid and that it adhered to them at
all times in making referrals. On these contentions the issues
herein were drawn.3
FINDINGS OF FACT
I. THE UNFAIR LABOR PRACTICES ALLEGED
The Respondent is an affiliated local of the Laborers’
International Union of North America, AFL–CIO. It operates
a hiring hall in Columbus, Ohio, from which it refers appli-
cants for employment to employers engaged in building and
construction in eight central Ohio counties.4 Respondent’s
contract with the Central Ohio Division of the Associated
General Contractors covers referrals for general construction
work and contains an exclusive hiring hall provision. An-
other contract with the Labor Relations Division of the Ohio
Contractors Association covers highway and heavy
contruction. This contract involves Laborers’ International af-
filiates throughout Ohio, as well as the Respondent herein,
and also contains an exclusive hiring hall provision.
The operation of the Respondent’s hiring hall has been the
subject of two previous Board cases and has been described
in detail in those cases.5 The hiring hall operates 5 days a
week, opening about 5:30 a.m. or so and closing about 1
p.m. Jobs are normally announced beginning about 6:30 a.m.
Because of the scarcity of work in recent months, the dis-
patcher has normally completed each day’s referrals by 7:30
a.m. or 8 a.m., if not earlier. On some days there are no re-
ferrals. The dispatcher makes each day’s call from an out-
of-work list which is revised on a weekly basis. He starts
with the name listed in first position and proceeds in numeri-
cal order until all available work has been assigned.6 The
Union requests all employers who use the hall to give the
Respondent as much advance notice as possible when re-
questing referrals. One contract requires a 12-hour advance
notice. However, contractors do not always make advance re-
quests which are timely and the Union is obligated by con-
tract to make referrals promptly upon request.
The Union is obligated by contract to maintain these lists
and to make referrals without reference to the union member-
ship or lack of membership of any job applicant. To maintain
one’s name on the list, a prospective applicant must come to
the hall or call the hall every Monday morning and notify
the dispatcher that he wishes to remain on the list. Failure
to do so, without a valid excuse, will result in removal of
a name from the list.
The Union does not make job referrals by telephone. As
detailed in the litigation in Laborers I, in order to receive a
referral an applicant must be physically present in the hall
to respond to a dispatcher’s call. If he is not present, the dis-
patcher proceeds to the next name or names in the order
found on the list until an applicant awaiting referral verbally
responds. An individual is entitled to refuse a call but, if the
job in question is a regular job, meaning a job lasting 7 or
more days, a refusal will result in the applicant’s name being
placed at the bottom of the list. If the job in question is less
than 7 days’ duration, the applicant may refuse a call and
still retain his same position on the list. I credit testimony
in the record, corroborated by a photograph, that the absence
of an applicant from the hall when a regular job is an-
nounced has the same effect as refusing that job, i.e., if the
job in question is for 7 or more days and an applicant is not
present to respond when his name is called for referral, his
name is then placed at the bottom of the list when a new
list is prepared the following Monday.7 I also credit record
809LABORERS LOCAL 423 (G.F.C.)
ranking applicants while waiting for a more desirable job to come
along. The G.F.C., Inc. job was generally regarded as an undesirable
one because employees on that job were required to work for long
periods of time inside hot, unventilated ovens. Jobs requiring work
on scaffolds high above the ground were also regarded by some ap-
plicants as undesirable.
8 While the Respondent is complying with the terms of the Order
in Laborers II, as described above, it is now pursuing an appeal of
the Board’s decision in that case to a court of appeals.
9 Howard Woods, the Union’s long-time executive board member
and field representative, testified for the Respondent. He appeared to
be confused by a couple of questions and apologized for his answers
when it turned out that he had misunderstood a question and had
given an incorrect reply. Woods attempted to tell the truth and I
credit his testimony.
corroborated testimony to the effect that this rule was in ef-
fect for about 1 year dating from the hearing in this case in
mid-May 1993. As a result of the Board’s decision and order
in Laborers II, the Respondent inaugurated a daily sign-in
sheet in January 1993. All applicants are now required to
sign this sheet each morning upon reporting for referral and
to indicate on the sheet their time of arrival at the hall.8 Fail-
ure to register each day for referral is treated as the equiva-
lent of absence from the hall on that day.
Charging Party Lewis J. Henderson has been a member of
the Respondent Local 423 for several years. In June 1992,
Henderson was a candidate for union executive board and
ran on an insurgent ticket headed by Charging Party Michael
A. Mayle. At one time during his membership he had filed
a civil action in small claims court against the Respondent.
The record does not reflect the outcome of the suit. Mayle
organized an insurgent slate, called Local 423 Solidarity,
which ran against the incumbent leadership in the June 1992
election. He was also one of the charging parties in Laborers
II. His insurgent slate did not prevail at the election.
In June 1992, a job of substantial size and having a dura-
tion of 2 or 3 weeks opened up at the Thomas Consumer
Electronics plant at Circleville, Ohio, some 26 miles distant
from the Respondent’s hiring hall. (The job is sometimes re-
ferred to in the record as the RCA plant inasmuch as the
plant manufactures R.C.A. television picture tubes.) G.F.C.,
Inc., a contractor from Toledo, Ohio, had a contract with
Thomas Consumer Electronics to remove refracting brick
from glass ovens and to rebuild the ovens completely.
G.F.C., Inc., adhered to the Associated General Contractors
contract with the Respondent which required it to utilize the
Respondent’s hiring hall to secure laborers. At a prejob con-
ference which it held with representatives of the Respondent
on June 25, G.F.C., Inc., informed the Respondent that the
job would begin on July 13 and end on July 31. The job
would operate on a two-shift basis, employees would be ex-
pected to work a 10-hour day without a coffeebreak, and
they would be paid at 1-1/2 times the usual scale. G.F.C.
stated that the job would require 50 laborers at its peak, that
all employees referred had to be clean shaven, and that all
employees would have to pass a drug screening test before
being hired.9 The latter requirement is unusual for laborers
in the industry. The Respondent was able to obtain the agree-
ment of G.F.C., Inc. to give anyone referred to the job 4
hours’ showup pay just for taking the drug test.
On Monday, July 6, G.F.C., Inc. called the union hall and
asked that laborers be referred to take the screening test. I
credit record testimony that, on Thursday, July 9, the Re-
spondent’s dispatcher began to call the list of names on its
out-of-work list in order to supply the Company’s request. It
called the list in order of seniority and dispatched approxi-
mately 62 men to take the test. When making referrals, it has
been the Respondent’s practice to furnish each applicant re-
ferred a work order which he then presents to the job super-
intendent in order to be hired. This practice is also required
by section 4(A)(6) of its contract. In this instance, because
of the unusual requirement for a screening test, the Respond-
ent gave each applicant who was referred a work order
which entitled him to go to a hospital near the jobsite and
receive a test. A list of those who passed the test was then
supplied to the employer. It was this list which constituted
a clearance to go to work.
According to Company records, seven individuals who
were referred were given only 4 hours’ pay, indicating either
that they did not pass the test or that they passed it but elect-
ed not to report for work. Henderson was one of the appli-
cants who took the test and passed it. I discredit Henderson
as a witness because of his argumentative demeanor, the fact
that he frequently contradicted himself on the stand and testi-
fied as if he were making up his story as he went along, and
because of his obvious bias against the Respondent’s leader-
ship growing out of intraunion political activities. I would
not predicate any finding in a disputed matter solely upon his
testimony.
The Employer’s records indicate that G.F.C., Inc. hired a
total of 46 laborers on Monday, July 13, 4 on July 14, and
2 on July 15. It did not hire Henderson until the following
Monday, July 20, and hired one laborer the following day.
Its payroll showed that it hired a total of 55 individuals who
actually went to work at the Circleville job. Henderson
worked 4 days or a total of 48 hours. Some 10 laborers
worked a fewer number of hours than Henderson and 44
worked longer than he did.
A comparison of the out-of-work list for July 6 with the
Respondent’s list of those who were referred to the G.F.C.
job shows that only 27 of those referred were on the ‘‘A’’
list and that the rest were not. Referred applicants had num-
bers on the out-of-work list ranging from 2 to 228 with large
obvious gaps in between. Henderson was number 33, not 37
as he testified. I credit the testimony of Woods that, accord-
ing to the practice in the hiring hall, names are called in
order, as indicated above, and if there are not enough people
available to answer the call, the Respondent then refers any-
one present in the hall who wants to work and provides that
applicant with a work order, even though the individual is
not on the ‘‘A’’ list and may be either a casual employee
or someone whose name is only on the ‘‘B’’ list. This is
what occurred on July 9 when the G.F.C. job was called.
Woods testified that he visited the G.F.C. jobsite fre-
quently and was told on one occasion by the G.F.C. super-
intendent that the Company would not need all the referred
individuals at once but would require that they be dispatched
over a period of time. Because the job was operating in two
shifts, the Union made up a shift-preference list and asked
applicants who had passed the screening test to indicate their
preference. Henderson signed up for the afternoon shift,
which was scheduled to begin work each day at 3:30 p.m.
It is obvious from Company records that the bulk of the la-
borers whom it hired through the Respondent’s hall reported
810 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 The reason why Henderson was laid off at the G.F.C. job on
the date in question was not corroborated in the record from any
source.
11 Henderson said that he was laid off as a result of a safety dis-
pute with his employer, Unlimited Construction. Union Business
Agent James H. Green was informed by the employer that Hender-
son was asked to work on a scaffolding and was either unable or
unwilling to do so and was removed by the employer from the job-
site.
12 I discredit Mayle’s testimony and am not the first administrative
law judge to do so. See Laborers II.
13 The list indicates that Raike had signed in at 6:02 a.m.
for work on July 13, either on the morning or afternoon shift.
Henderson was not among them.
The record is somewhat hazy about the precise time and
method that laborers were informed to come to work on July
13. Woods testified that the roll was called and that employ-
ees who had passed the screening test were informed when
to report. Henderson testified that he was not in the hall on
the morning of July 13, and then changed his story, insisting
that he was present at that time. He also testified that he vis-
ited the hall once or twice a day during the week of July
13 and also called the hall several times a day to inquire
about when the G.F.C. job would start. He was hazy about
whom he talked with during these phone calls. I discredit his
testimony. Woods, the Respondent’s chief dispatcher, is nor-
mally in the hall until about 10 or 10:30 a.m. each day and
leaves to visit jobsites after completing each day’s dispatch.
He testified truthfully that he did not see Henderson at the
hall at anytime that week. Henderson admitted on the stand
that he did not have a telephone during this period of time,
although he claims he could have been reached by telephone.
Woods admits speaking by telephone with Henderson ap-
proximately Wednesday of the first week of the G.F.C. job
and telling Henderson that not all men were being referred
at the same time. Henderson started to work on the afternoon
shift the following Monday. He is uncertain as to who told
him to report at that time and does not remember whether
he was told to report on the morning of the Monday he actu-
ally reported or whether he was given these instructions the
preceding Friday. He worked 4 days. According to Hender-
son, he was laid off at the end of the fourth day because of
a seniority practice of laying off first those individuals who
reported to the job last and have the lowest job seniority.10
When he came back to the hall, he complained that the job
did not last 7 days and was not a regular job within the
meaning of that term as it is used at the hall, so he was
placed back on the out-of-work roster in his former slot rath-
er than being dropped to the bottom of the list. Later, he was
referred by the Respondent to a job at Children’s Hospital
for the Unlimited Construction Company. It was after being
laid off of this job in October, under conditions which were
disputed in the record, that Henderson filed the charge in this
case.11
Shortly after the charge in this case was filed, Union Ex-
ecutive Board Member and Business Agent James H. Green
spotted Henderson at the hall and asked him to come into
an office to speak with him. Green questioned Henderson as
to why the latter had filed a charge against the Union. Hen-
derson said it was because he had been laid off at the Chil-
dren’s Hospital job. Green pursued the question, telling Hen-
derson that if he had a complaint about the layoff at the hos-
pital he should have filed the charge against the employer
who laid him off, not against the Union. Green also told
Henderson that the contractor had a right to lay him off if
Henderson was not doing his work properly. Henderson as-
serts, and Green denies, that Green threatened to take Hen-
derson’s ‘‘book.’’ I credit Green’s denial. Both agree that
Green told Henderson that he had a right to file charges but
that the Union had the right to file charges against him and
that filing charges against the Union was not going to help
Henderson get his job back at the hospital. Green also testi-
fied that he told Henderson that it was his personal opinion
that Henderson was trying to overthrow the Union and that,
if Henderson kept on, the Union would file charges against
him.
In February 1993, Mayle had risen to the number three po-
sition on the out-of-work list and Henderson held the fourth
position. On or about February 22, the dispatcher received a
call for one laborer to work for Knowlton Construction Com-
pany at a jobsite on the Ohio State University campus. The
job was a regular job and was still in progress at the time
of the hearing in this case. Woods then proceeded to call the
roll of the out-of-work list to obtain a referral. The first per-
son to answer was David Raike, who was number eight on
the list. Raike was referred to the Knowlton job at 6:45 a.m.
Mayle12 and six others above Raike on the list did not an-
swer when their names were called. By this time the Union
had installed a daily sign-in list in compliance with the
Board’s Order in Laborers II. None of the men listed above
Raike on the out-of-work list had signed in during the morn-
ing of February 22 except for Henry Eley, the number one
name on the list, but Eley did not sign in until 8:30 a.m.13
When he prepared the out-of-work list for the following
week, Woods dropped Mayle, Henderson, Eley, and the oth-
ers who were above Raike on the previous list to the bottom
of the new list, where they occupied positions 252 thru 256.
There is no contention that either Mayle, Henderson, or any
other applicant had actually signed in at the hall in a timely
fashion on the morning that Raike was referred to the
Knowlton job. In fact, Mayle testified that he never signs in
when he comes to the hall, notwithstanding the fact that the
sign-in requirement was instituted by the Union to comply
with the remedy required by the Board in a case in which
Mayle was the charging party.
II. ANALYSIS AND CONCLUSIONS
Both the power of the Board to oversee the operation of
union hiring halls and the limitations on that power were out-
lined years ago by the Supreme Court in Teamsters Local
357 (California Trucking Assns.) v. NLRB, 365 U.S. 667
(1961):
Congress has not outlawed the hiring hall, though it
has outlawed the closed shop except within the limits
prescribed in the provisos to Section 8(a)(3). Senator
Taft made clear his views that hiring halls are useful,
that they are not illegal per se, that unions should be
able to operate them so long as they are not used to
create a closed shop:
. . . .
There being no express ban of hiring halls in any
provisions of the Act, those who add one, whether it be
811LABORERS LOCAL 423 (G.F.C.)
the Board or the courts, engage in a legislative act. The
Act deals with discrimination either by the employers
or unions that encourages or discourages union mem-
bership. As respects Section 8(a)(3), we said in Radio
Officers v. Labor Board, 347 U.S. 17, 42–43 [1954]:
The language of Section 8(a)(3) is not ambiguous.
The unfair labor practice is for an employer to en-
courage or discourage membership by means of dis-
crimination. Thus, this section does not outlaw all
encouragement or discouragement of membership in
labor organizations; only such as is accomplished by
discrimination is prohibited. Nor does this section
outlaw discrimination in employment as such; only
such discrimination as encourages or discourages
membership in a labor organization is proscribed.
It is the ‘‘true purpose’’ or ‘‘real motive’’ in hiring
or firing that constitutes the test. Some conduct may by
its very nature contain the implications of the required
intent; the natural foreseeable consequences of certain
actions may warrant the inference.
. . . .
It may be that the very existence of the hiring hall
encourages union membership. We may assume that it
does. The very existence of the union has the same in-
fluence. When a union engages in collective bargaining
and obtains increased wages and improved working
conditions, its prestige doubtless rises and, one may as-
sume, more workers are drawn to it. When a union ne-
gotiates collective bargaining agreements that include
arbitration clauses and supervises the functioning of
those provisions so as to get equitable adjustments of
grievances, union membership may also be encouraged.
The truth is that the union is a service agency that
probably encourages membership whenever it does its
job well. But as we said in Radio Officers v. Labor
Board, supra, the only encouragement or discourage-
ment of union membership banned by the Act is that
which is ‘‘accomplished by discrimination.’’
. . . .
It may be that hiring halls need more regulation than
the Act presently affords. As we have seen, the Act
aims at every practice, act, source, or institution which
in fact is used to encourage and discourage union mem-
bership by discrimination in regard to hire or tenure,
term or condition of employment. Perhaps the condi-
tions which the Board attaches to hiring hall arrange-
ments will in time appeal to the Congress. Yet where
Congress has adopted a selective system for dealing
with evils, the Board is confined to that system. [Cita-
tion omitted.] Where, as here, Congress has aimed its
sanctions only at specific discriminatory practices, the
Board cannot go farther and establish a broader, more
pervasive regulatory scheme.
. . . .
If hiring halls are to be subjected to regulation that
is less selective and more pervasive, Congress not the
Board is the agency to do it.
Notwithstanding these limitations, the Board has forged
ahead over the years to develop a common law of hiring hall
violations which, at least in some instances, lifts from the
shoulders of the General Counsel the onerous burden of
proving specific discriminations linked to union membership
or lack thereof. A departure from established hiring hall rules
has been deemed to be not only a violation of the contract
but of the Act, as well, unless the union proves that its con-
tract with employers requires the departure or the departure
is necessary for the effective functioning of the hall. The
failure to maintain an out-of-work list has been deemed to
be a per se violation of the Act, as is the case with a refusal
to let members see out-of-work lists. An unwritten practice
of allowing employers to recall employees who have pre-
viously worked for them without regard to their standing on
the out-of-work list has also been deemed to violate the Act.
However, in Laborers I, the Board specifically refused to
hold that requiring an applicant to be personally present in
a hiring hall when his name is called for a job is a per se
discrimination based on union membership or lack thereof. It
follows from that premise that a penalty or consequence
which attaches to the failure of an applicant to be personally
present in a hiring hall when his name is called, such as
being dropped to the bottom of the list, is likewise not a vio-
lation of the Act, since such a consequence is neither vague
nor subjective. Under the practice of the Respondent in this
case, an individual who does not respond to a call for a regu-
lar job (7 days’ duration or more) is dropped to the bottom
of the list. I have found as a fact that this practice existed
at all times material herein and that it was invoked on or
about February 22, 1993, in a lawful and evenhanded man-
ner. Specifically, it was invoked not only with reference to
Mayle and Henderson but also with reference to other appli-
cants toward whom there is no evidence of animus on the
part of this Respondent. Accordingly, so much of the con-
solidated complaint which alleges that Mayle and others
were discriminated against when, having failed to respond to
a call to go to the Knowles job at Ohio State University,
they were dropped to the bottom of the list should be dis-
missed.
There is no reason to believe that the Respondent was
guilty of any per se violation of the Act in referring appli-
cants to the G.F.C. job in July 1992. It was free to call on
casuals in the hiring hall to respond to a request for laborers
when applicants whose names were on the out-of-work list
failed to do so. There is no evidence that the selection of
casuals instead of persons on the list in any way promoted
or discouraged the union membership of anyone. The Union
has had no practice of referring individuals by telephone or
of going out of its way to contact applicants who were not
present for referral just because they had signed up for jobs.
Accordingly, the fact that those who ultimately found their
way onto the G.F.C. payroll had rankings throughout all
parts of the out-of-work list, or that many had no ranking at
all, simply attests to the diligence of those individuals in
making themselves available for work while others did not.
We have no way of knowing from the record how many, if
any, of those who were actually referred were or were not
union members, how many of those who were called rejected
the opportunity to work at a particularly onerous and de-
manding job, or how many in the upper portions of the out-
of-work list were assigned to other jobs during the same
week. Accordingly, there is no basis for inferring that the
Respondent violated the Act when proof of specific discrimi-
nations is nonexistent and when no one, other than Hender-
812 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 Moreover, we have only Henderson’s word that he was laid off
first in order of seniority as the last man hired. I decline to predicate
a finding on this aspect of his testimony as well.
15 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.
16 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.’’
son, complained that he had been treated unfairly or unlaw-
fully. Indeed, Henderson has leveled no claim of discrimina-
tion based on the content of the list of applicants who were
referred for drug screening. Having passed the screening test,
he was eligible for employment and was in fact hired. His
complaint is that he was not put to work soon enough.
It is suspicious that Henderson, a political antagonist of
the current administration of the Respondent, was second to
last to be hired by G.F.C. from the list of drug-free eligibles.
However, the employer told the Union that it did not want
all of the men who passed its physical examination to be re-
ferred at the same time and that it would be in contact with
the Union to schedule reporting dates. Not everyone reported
on July 13. There is no reliable evidence as to how or when
Henderson actually got the word to report when he did. In-
deed, the evidence is skimpy as to how others who had
passed the drug test were told to report. Accordingly, we are
left to speculate as to whether Henderson’s late reporting was
the product of intentional footdragging on the part of Union
officials growing out of personal animus or whether he was
simply neglectful in not showing up for actual referral with
the same diligence that others did.14 The burden of proof to
explain this situation does not devolve upon the Respondent
but lies with the General Counsel to establish unlawful con-
duct by something more substantial than suspicion. Accord-
ingly, I will recommend that so much of the consolidated
complaint which alleges that the Union violated the Act by
its referrals to the G.F.C. job be dismissed.
Some months after Henderson left the G.F.C. job and after
he had been laid off from a subsequent job, he filed a charge
with the Board and was questioned about it by Green. I have
discredited Henderson’s testimony to the effect that Green
specifically threatened Henderson to ‘‘get his book,’’ i.e.,
terminate his membership in Local 423. However, Green’s
own testimony discloses that, during the conversation in
question, he told Henderson that the Union, as well as Hen-
derson, had the right to file charges. Green accused Hender-
son of trying to overthrow the Union and threatened to file
charges against him. Such internal union charges could,
under some circumstances, result in expulsion from member-
ship. While the nature of Green’s threat was vague and
lacked a certain specificity, it is clear that it was in fact
made and that it was made in response to Henderson’s action
in seeking redress from the Board. Accordingly, by threaten-
ing Henderson with unspecified reprisal because he had filed
charges under the Act, the Respondent herein violated Sec-
tion 8(b)(1)(A) of the Act. I so find and conclude.
CONCLUSIONS OF LAW
1. G.F.C., Inc. and the Altman Company, and each of
them, is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act and maintains a
contractual relationship, either directly or through a multiem-
ployer association, with the Respondent providing for an ex-
clusive hiring hall referral system.
2. Respondent Laborers’ International Union of North
America, Local 423, AFL–CIO is a labor organization within
the meaning of the Act.
3. By making unspecified threats of reprisal against mem-
bers and applicants for referral because they have filed
charges or given testimony under the Act, the Respondent
herein violated Section 8(b)(1)(A) of the Act. Such unfair
labor practices have a close, intimate, and substantial effect
on the free flow of commerce within the meaning of Section
2(2), (6), and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I will recommend that it be required
to cease and desist therefrom and to take certain affirmative
action designed to effectuate the purposes and policies of the
Act. I will require it to post the usual notice advising its
members of their rights and of the results in this case.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended15
ORDER
The Respondent, Laborers’ International Union of North
America, Local 423, AFL–CIO, Columbus, Ohio, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Threatening members or applicants for referral with re-
prisal because they have filed charges or given testimony
under the Act.
(b) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its Columbus, Ohio hiring hall, copies of the
attached notice marked ‘‘Appendix.’’16 Copies of the notice,
on forms provided by the Regional Director for Region 9,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced,
or covered by any other material.
(b) 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 RECOMMENDED that insofar as the consoli-
dated complaint herein alleges matters which have not been
found to have been violations of the Act, the consolidated
complaint is dismissed.
813LABORERS LOCAL 423 (G.F.C.)
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Laborers’ International Union of North America, Local 423,
AFL–CIO, is posting this notice to comply with an order of
the National Labor Relations Board, which was issued after
a hearing in this case in which we were found to have vio-
lated certain provisions of the National Labor Relations Act.
WE WILL NOT threaten members or applicants for referral
with reprisal because they have filed charges or given testi-
mony under the National Labor Relations Act.
WE WILL NOT in any like or related matter coerce or re-
strain employees in the exercise of rights guaranteed to them
by Section 7 of the Act.
LABORERS’ INTERNATIONAL UNION OF NORTH
AMERICA, LOCAL 423, AFL–CIO