Local 224, AFL-CIO, Sheet Metal & Roofing Contractors' Association, Miami Valley, Ohio

National Labor Relations Board - Board Decisions

Jan 5, 1990

297 N.L.R.B. 528 (N.L.R.B. 1990)

528 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Sheet Metal Workers' International Association,
Local Union No 224, AFL-CIO (Sheet Metal
& Roofing Contractors' Association of the
Miami Valley, Ohio and Gerald Leroy Hawkins
and Larry Phillips Cases 9-CB-5749 and 9-
CB-5762
January 5, 1990
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On June 28, 1984, Administrative Law Judge
Richard H Beddow Jr issued the attached deci-
sion in Cases 9-CB-5762 and 9-CB-5749 in which
he determined that the Respondent Union had vio
lated Section 8(b)(1)(A) of the Act by threatening
employee Larry Phillips and dismissed an
8(b)(1)(A) and (2) allegation regarding the oper-
ation of the Respondent s hinng hall The Re
spondent and the General Counsel filed exceptions
and supporting briefs The Sheet Metal & Roofing
Contractors' Association of the Miami Valley,
Ohio, Party in Interest, filed a brief in opposition
to the General Counsel's exceptions
On June 16, 1989, the Board adopted the judge s
findings in Case 9-CB-5762 that the Respondent
violated Section 8(b)(1)(A) and remanded the pro-
ceeding to the judge for a supplemental decision 1
On July 19, 1989, Judge Beddow issued the at
tached Supplemental Decision The General Coun
sel filed exceptions and a supporting brief, the Re
spondent filed an answering brief, and the Sheet
Metal & Roofing Contractors' Association of the
Miami Valley, Ohio, filed an opposition to the
General Counsel's exceptions
The Board has considered the supplemental deci
mon and the record in light of the exceptions and
briefs and has decided to affirm the judge's rulings,
findings, 2 and conclusions and to adopt the recom-
mended Order
' Not published in bound volumes
2 The General Counsel has excepted to some of the Judge s credibility
findings The Board s established policy is not to overrule an adnumstra
live law judge s credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are Incorrect Standard
Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cu.
1951) We have carefully examined the record and find no basis for re
versing the findings
In his supplemental decision the judge made several Inadvertent errors
that do not affect our resolution of the case In the paragraph preceding
the listing of the referrals the date should be September 19 to November
21 1983 In the listing of referrals the 10/12 listing of Price Fugate
should instead be Hamer Corporation and fn 4 in the decision relates
to the referral on 10/31 to Becker rather than to Architectural
Panels
Our review of the record reveals evidence of only one referral made to
allow an out of work employee to retain pension or other benefits As
this is insufficient to affect our finding that the Respondent did not vio
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge in his June 28, 1984 decision and orders that
the Respondent, Sheet Metal Workers Internation
al Association, Local Union No 224, AFL-CIO,
its officers, agents, and representatives, shall take
the action set forth in the Order
late the Act we find it unnecessary to comment on the judge s implicit
finding that making a referral on this basis was lawful
Andrew L Lang Esq for the General Counsel
Ray E Schmidt Esq of Dayton, Ohio, for the Respond
ent
Dean E Denhnger Esq of Cincinnati Ohio for Party in
Interest
DECISION
STATEMENT OF THE CASE
RICHARD H BEDDOW JR Administrative Law Judge
This matter was heard in Dayton Ohio on March 28
and 29 1984 Subsequently a motion for leave to file a
brief amicus in the matter was filed by the Sheet Metal &
Roofing Contractors Association of the Miami Valley,
Ohio and bnefs were filed by the General Counsel and
Respondent I find that the Contractors Association has
shown good cause to be allowed to express its position in
the matter and accordingly, the motion is granted and
its brief is hereby accepted for filing
The proceedings are based upon charges filed Novem
ber 18 1983 1 as amended December 20 by Gerald
Hawkins an individual and December 6, by Larry Phil
lips an individual The Regional Director s consolidated
complaint and notice of hearing dated January 16, 1984,
alleges that Respondent Sheet Metal Workers Interna
tional Association Local Union No 224 AFL-CIO (the
Union) violated Sections 8(b)(2) and 8(b)(1)(A) of the
National Labor Relations Act by failing to refer Haw
kms to employment and by threatening Phillips that he
would not be hired because of his past activities as a
union officer
On a review of the entire record in this case and from
my observation of the witnesses and their demeanor, I
make the following
FINDINGS OF FACT
I JURISDICTION
The Respondent Union is a labor organization within
the meaning of Section 2(5) of the Act and it (and its
predecessor) has had a long collective bargaining history
with the Sheet Metal & Roofing Contractors Associa
non of the Miami Valley Ohio which represents em
ployer members conducting business operations which
include the performance of services valued in excess of
$50 000 in States other than Ohio and purchasing and re
1 All following dates are in 1983 unless otherwise indicated
297 NLRB No 76
SHEET METAL WORKERS LOCAL 224 (SHEET METAL) 529
ceiving goods and materials valued in excess of $50,000
directly from points outside of Ohio Inasmuch as mem-
bers of the Association collectively meet the Board's ju-
risdictional standards, it effectuates the policy of the Act
to exercise jurisdiction in a case of this nature, see Stage
Employees IATSE Local 307, 159 NLRB 1614 (1966)
II THE ALLEGED UNFAIR LABOR PRACTICES
The Union operates a hiring hall under the labor
agreement with the Employers Association This hiring
hall has been in effect between the Union and the Em-
ployers for 23 years and is "exclusive" in the sense that
Employers must normally go through the Union in
hiring employees However, the Union must refer those
workers requested by an employer While the union
hiring hall is in Dayton, the larger geographical terntory
covered by the agreement includes other points in Indi-
ana and Ohio such as Lima and Hamilton
The labor agreement between the Employers and the
Union contains an addendum covering hiring procedures
The main body of the agreement, article IV, requires
that all workers furnished by the Union shall be "duly
qualified to properly execute work "The Em-
ployers retain the right to reject any employees referred
by the Union The agreement also prohibits the Union
from exercising any improper discrimination, including
any discrimination "in any way affected by Union mem-
bership or any other aspect or obligations of Union
membership" The Employers have the right to ask for
employees with "specific skills, qualifications and abili-
ties" It also is provided that a name be removed and
placed on the bottom of the list after a refusal of two job
offers
Sheet metal workers are skilled employees, receiving
$1071 an hour, in addition to expensive fringe benefits
The type of work also vanes widely and is usually
known by the union agents running the hiring hall and
includes qualified welders, or lead workers, heavy erec-
tion work, work at heights above the ground, layout
work or shop work, or skilled architectural metal work
On the other hand, some sheet metal workers have not
had formal apprenticeship training and are not capable of
all the skills sometimes desired Also, because of the dis-
tances involved within the coverage of the Union, em-
ployers sometimes prefer local people when available In
recent years, business has been slow for the Employers
and this has resulted in high unemployment for members
of the Union As noted, employers have the right to
recall any named journeyman, and in periods of unem-
ployment they exercise this right heavily
Ralph W Taylor, Sr, has held the position of financial
secretary/treasurer and business manager of the Re-
spondent Union for 23 years and in the latter role is re-
sponsible for operating the Union's hiring hall system
Larry Phillips, a union member for over 10 years, was a
trustee between 1980 and 1982 and was elected president
of the Union on July 1, 1982, winning over a candidate
supported by Taylor Phillips' brother, Willie Phillips,
also was elected as a business agent (one of three such
positions) winning over Taylor's stepson After the elec-
tion results were announced Taylor remarked that he
was going to call the International and see if he couldn't
get the hell out of Local 224 Subsequently, at a meeting
on January 27, 1983, Phillips removed Gary Paxton (also
a business agent) as a trustee of the Health and Welfare
and Pension Fund Taylor reacted angrily to Phillips'
action and commented that Phillips would never work in
the local again Charges were then filed against Phillips
by Paxton and several others with close ties to Taylor
An International trial was held on April 26 and 27 result-
ing in Phillips' removal from office This was executed
by order of the general president on November 14 but
was appealed before the General Executive Council on
March 22, 1984 Union member Gerald Hawkins had
been present at the January 27 meeting and also was
present with a group of witnesses to be called on behalf
of Phillips at the April trial, however, Hawkins was not
called to testify Hawkins spoke with another business
agent who was in a group with Taylor and Hawkins be-
lieves that Taylor saw him at that time
Hawkins has been a sheet metal worker for over 20
years and a Local 224 member since 1969 He became a
journeyman without having completed an apprenticeship
course, however, he did complete training courses since
1979 in welding and in heating, air conditioning, and
ventilation Over the years he has performed a variety of
work including architectural, duct work and blowpipes,
siding, decking and layout, and he has worked jobs as far
away as Lima (75 miles from his home) Hawkins injured
his back in 1978 and his shoulder in 1982 and turned
down at least two job referrals in the fall of 1982 because
of physical problems In mid-April 1983, Hawkins
changed doctors, his condition improved, and he told
Taylor that he was feeling "like a new man"
Sandra Setmski is a secretary/receptionist for the
Union She, along with the business agents, receives calls
from contractors and members, makes entries in the
Union's job book, and, until August or September 1983,
called members about referrals She is familiar with
Hawkins' physical problems and job abilities based on his
conversations with her Hawkins has told her he doesn't
do or like shop layout and doesn't care for siding or
decking, especially if it involves heights and a lot of
climbing She believes he refused a job in July 1983, for
the latter reason
During November 1982, Hawkins worked on duct in-
stallation at a Richmond, Indiana jobsite for 2 weeks and
thereafter turned down a job because the business agent
didn't have information about what type work was in-
volved He then was referred by Taylor to another duct
work job in May that lasted about 2 weeks and then to a
4-day job in July Hawkins, who held the seventh posi-
tion on the out-of-work list, 2 testified that he was not of-
fered another referral until shortly after he filed his
charge on November 18 At that time he turned down a
referral because he had an appointment to give a state-
ment to a Board agent Taylor reacted angrily and as-
serted that Hawkins had done that to him seven or eight
times before, which Hawkins denied He has then re-
2 It appears that anyone on the list who is laid off is then slotted back
in at his past position, however, quitting of a job or holding a lengthy job
may result in being placed at the end of the list
i
530 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ferred to a decking job on November 29, accepted, and
worked until completion of the job in January 1984
Hawkins testified that in the past he had indicated to
Setmski and the business agents his preference for out-
side work and, when he had physical problems, a prefer-
ence for a job that did not involve climbing He also tes-
tified that he was given picketing assignments (for which
he was paid) by the Union during both July and Novem-
ber He also testified that he got along well with Taylor,
Setinski, and the others and that he did not believe there
was any animosity between them
The Union's job book lists numerous calls by contrac-
tors for employees between August and November 18
and Taylor and several contractors testified in response
to questions about referrals made for the relevant period
On 27 specific job calls from contractors between Sep-
tember 19 and November 18 cited by the General Coun-
sel, the Respondent referred persons other than Hawkins
who were below him on its out-of-work list to jobs
Also, on November 29 one Carl Russell was referred to
a job As explained by Taylor, the job's superintendent
was Russell's son and had requested Russell by name
Taylor also explained many of the other specific referrals
as ones where Hawkins was not called because the con-
tractor asked for other people by name On other occa-
sions Respondent apparently took the initiative and re-
ferred members that it believed had worked for the con-
tractor before or it told the contractor that these persons
were available Taylor estimated that because of the high
rate of unemployment in 1983, 95 percent of the referrals
made were in the nature of recalls Some other contrac-
tors asked for specifically skilled individuals such as "top
layout" men, men capable of running blowpipe for a
showpiece job, a light-gauge welder, certified welders,
"shop and field" men, close tolerance workers, and lead-
man Other jobs were described as involving so-called
heavy work, or work in high places, some involved job
locations such as Lima, some 75 miles from Dayton,
where it was anticipated that the contractor would
prefer local men, and some jobs involved "specialty"
contracts with lower rates of pay Because of his famili-
arity with Hawkins' skills and preferences, as well as his
acquaintanceship with the qualifications of others, Taylor
testified that he (or on occasion Setmski or one of the
other business agents) did not call Hawkins or others
higher up on the out-of-work list before referring a man
lower down on the list out on a job
Taylor also testified that some people were referred
out irrespective of the seniority others on the list because
of considerations of that individual's needed time to qual-
ify for pension benefits or to maintain eligibility for In-
surance or unemployment benefits
On July 28, the Union's executive board (Including
both Taylor and Willie Phillips), discussed a proposal for
getting short-term work for men who needed it in order
to retain benefit rights On August 5 the matter was dis-
cussed at a liaison committee meeting with the Contrac-
tors' Association and the latter group agreed to discuss It
at the Association's August 16 directors meeting Subse-
quently, the program was discussed on the floor at a
general meeting of the Union Hawkins and another
member confirmed that the matter was discussed at a
meeting in the fall of 1983, however, they did not under-
stand that the program had been formally adopted and
the Union never sent or posted written conformation of
the policy and never made a formal modification of its
written referral procedures
During the fall of 1983, Larry Phillips paid frequent
visits to the Union office, entered the area where Setinski
worked and talked to Taylor who occupied an adjacent
office with a connecting door On December 8, 2 days
after he filed his instant charge (in which he alleged that
since June 7, the Union had failed to refer him out for
employment), he entered Setinskes office about 11 30
a m and stood looking at a newspaper while waiting for
Taylor to finish a phone conversation Phillips testified
that Taylor started to leave his office, saying to him
"Thanks for the goddamned letter you sent me You
know the one from the NLRB" Setinski and Taylor re-
called that Phillips said "good morning captain, do we
have any work today?" Taylor said no and suggested
that Phillips try to get recalled at a named contractor A
discussion of other possible job recalls occurred Setinski
then noticed a change in voice tones and heard Phillips
tell Taylor that he had been told that Taylor told a con-
tractor not to hire Phillips Phillips testified he said
"nobody would hire me because of him (Taylor)," and
Taylor responded "Nobody better hire you" Setinski re-
called that Taylor said "That's a he I have never told
any contractor this," and that "after something else was
said," Taylor replied "Well, go out and get your own
fucking job I can't get you one We don't have any
work" Although some remaining conversation occurred,
no other allegedly threatening statements were made
Taylor recalled generally a conversation which became
heated on both sides relating to employment, however,
his testimony of what was actually said and the sequence
of events demonstrated some reluctance or inability to
recall all of what occurred He recalls telling Phillips to
go out and get his own job but did not recall or testify
about any portion of the conversation relating to con-
tractors being told not to hire Phillips or about his denial
of that accusation as remembered by Setinsk, However,
he denies that he said contractors "better hadn't" hire
Phillips or anything like that
III DISCUSSION
As a preliminary matter Respondent argues that It was
not afforded elementary due process because the General
Counsel was allowed to produce evidence relating to
matters concerning job referrals to contractors other
than the five -ompanies specifically identified in the
complaint, resulting in a lack of notice and a trial on
matter beyond the scope of the complaint I find Re-
spondent's argument to be completely without merit es-
pecially inasmuch as the complaint specifically names the
Contractors' Association and refers to "various mem-
bers" of the Association, "employer-members of Con-
tractors' Association," and "other employers signatory"
to the hiring agreement with the Union, as well as
naming five specific contractors It is clear that the com-
plaint described the alleged violation with sufficient par-
ticularity and that the Respondent was not misled, and,
SHEET METAL WORKERS LOCAL 224 (SHEET METAL) 531
accordingly, I reaffirm my allowance of the disputed tes-
timony
Respondent also questions the propriety of the com-
plaint in the Phillips' proceeding inasmuch as it, and the
evidence adduced, relates primarily to an alleged threat
that took place subsequent to the filing of the charge
which related to his not being referred to work Here,
however, the alleged threat is closely related to and
grew out of the controversy which produced the charge
and it is properly an issue for decision, see NLRB v Fant
Milling Go, 360 US 301, 309 (1959), and Warren-Teed
Product Go, 138 NLRB 131 (1962)
A Alleged Failure to Refer
The General Counsel argues that where an exclusive
hiring hall is operated by a union in a subjective manner
without the use of objective criteria for the referral of
employees, a violation of Section 8(b)(1)(A) and (2)
occurs, citing Ohio Valley Carpenters' District Council,
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO (Catalytic, Inc ), 267 NLRB 1223 (1983), and
that, when it departs from the objective criteria estab-
lished for the operation of its hiring hall, it likewise vio-
lates Section 8(b)(1)(A) and (2), citing Operating Engi-
neers Local 450, 267 NLRB 775 (1983)
Here, the General Counsel has shown that between
September and November 1983, some referrals were
made out of sequence as to the number seven position
held on the out-of-work list by Gerald Hawkins Re-
spondent has substantially rebutted this showing by dem-
onstrating that it has written rules as part of its agree-
ment with the Contractors' Association and that many of
the deviations can be explained by allowed exceptions
under these rules, especially with respect to provisions
for recall of previous employees and for out-of-work em-
ployees with special skills, qualifications, and abilities In
at least two instances the deviation was to allow out-of-
work employees to retain pension or other benefits
While this latter procedure was not formally adopted, it
appears that it was made known to the members at a
meeting and was agreed to by the Contractors' Associa-
tion and the Union's executive board Thus, although the
Union departed from its rules it was not done so in an
arbitrary manner In a similar vein, the record shows that
Respondent's practices in recording information pertain-
ing to its referrals lacked clarity and often relied upon
the memories of the involved persons This may have re-
sulted in incorrect referrals on occasion, however, this is
not clearly established by a predominance of the evi-
dence and it otherwise is not shown to have been so
poorly performed as to constitute an arbitrary practice
Here, the alleged discnminatee is shown to have ex-
pressed a desire for or against certain types of work as
well as having indicated he suffered physical difficulties
which affected his work abilities There is no showing
that he clearly and unequivocally informed the Union of
his availability for all types of work and I cannot find
that it was arbitrary for the Union not to have called
him for work that he previously indicated he was not in-
terested in In this respect, I infer that if the Respondent
in fact had wished to retaliate against Hawkins for any
reason, it could have referred him to unsuitable or unde-
sirable jobs or to jobs for which he was only marginally
qualified and otherwise moved him to the bottom of the
list for refusal of two job offers The record, however,
shows no animosity between Hawkins and Respondent's
officials, no conduct by Hawkins (other than his mere
presence at the location of Phillips' trial), that might
form a basis for retaliatory action, and no other practices
of discriminatory behavior or favoritism with respect to
other members on the out-of-work list Despite the ab-
sence of specific discrimination against Hawkins, the
General Counsel otherwise argues that Respondent's op-
erations of its hiring hall was so arbitrary and capricious
as to demonstrate at least a prima facie violation of the
hiring hall rules and that, in effect, the criteria used in
the operation of a hiring hall was no more than a mask
for the purpose of concealing preference given to certain
union members and therefore violated Section 8(b)(1)(A)
and (2), citing Iron Workers Local 480, 235 NLRB 1511
(1978)
Here, however, I find neither evidence of discrimina-
tion against nor evidence of preference given to any indi-
vidual or class of members To the contrary, I believe
the record supports a conclusion that the rules were sub-
stantially followed and that any deviations from the rules
were minor and, as noted, were not illegally motivated
While the record does show Respondent's procedural
practices and record keeping were somewhat careless
and imprecise and relied too heavily on the memories of
those involved, it falls short of demonstrating such a lack
of standards and adherence to those standards as to be
arbitrary or capricious
I conclude that the record fails to show that Hawkins
was denied referral for any discriminatory reason or that
preferential referral was arbitrarily or pretextually given
to others Moreover, in the absence of a showing that a
pattern of general or widespread hiring hall abuses pre-
vail, it is not necessary to require specific procedural
remedies over the purely procedural aspects of the oper-
ation of the hiring hall Under the circumstances, I fur-
ther conclude that the General Counsel has failed to per-
suasively show that Respondent's operation of its hiring
hall violated Section 8(b)(1)(A) and (2) of the Act as al-
leged and, accordingly, I therefore will recommend dis-
missal of the complaint in Case 9-CB-5749 The Re-
spondent otherwise is admonished, however, to maintain
a more adequate record keeping system to properly re-
flect information relevant to the operation of the subject
hiring hall and referral system
B Alleged Threats
On December 8 a conversation took place between
Charging Party and disposed Union President Phillips
and Union Business Agent Taylor in the presence of
union secretary/receptionist Setinski The three recollec-
tions of what was said differ substantially from one an-
other, however, I find Setinski's testimony to be credible
based upon her firm demeanor and relative independent
recall and perspective of the event Both Phillips and Se-
tinski recalled that a conversation pertaining to work
availability turned to the subject of Phillips' hearing that
Taylor had told contractors not to hire Phillips Taylor
532 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
had no apparent recall of this portion of the conversation
and I therefore find no reason to credit his naked denial
of the response attributed to him by Phillips As recalled
by Phillips, Taylor's reply was to utter the alleged threat
"Nobody better hire you" Setinski recalls that Taylor
first denied Phillips' accusation She then testified "And,
then, something—I don't know what else was said there
And, then the next thing I know Ralph (Taylor) said,
well, go out and get your own fucking job I can't get
you one, we don't have any work" Setmski's recall that
something else was said allows the inference that it was
likely that Taylor heatedly responded to Phillips' accusa-
tion with a threatening remark Although the sequence
of recalled remarks fails to fit squarely into a clearly log-
ical pattern of speech, Taylor's apparent reticence to
recall this portion of the conversation, except for his
blanket denial that he made the alleged threat, leads me
to conclude that he in fact did impulsively respond with
a threatening remark
I recognize Respondent's argument pointing out cer-
tain discrepancies in Phillips' testimony, especially his re-
luctance to acknowledge that he participated in "heated"
and "profane" aspects of the exchange and that his affi-
davit to a Board agent given on December 14, fails to
mention the alleged threat on December 8 On Decem-
ber 15, however, he gave a supplemental affidavit which
reflected information about the alleged threat, which was
supported by a note he made on December 8 wherein he
had recorded the pertinent aspects of the conversation
More significantly, however, it is clear that a back-
ground of animosity existed between Taylor and Phillips
over Phillips' mtra-union conduct and Taylor did not
refute Phillips' testimony that on a prior occasion in Jan-
uary, subsequent to Phillips' action in removing another
business agent as a trustee of the benefit funds, Taylor
had angrily threatened that Phillips would never work in
the local again Accordingly, I find that Taylor's past
conduct confirms a propensity to respond with a threat
when angered Under these circumstances, Phillips' testi-
mony regarding the alleged threat is plausible and, when
it is evaluated against the naked denial made by Taylor,
combined with his apparent reluctance and inability to
recall the most significant portion of the admitted con-
versation, I conclude that Phillips' recollection of the
threat should be credited
The statement made by Taylor implies that prospec-
tive employers have been influenced by the Union to
deny employment to Phillips It is a threat which reason-
ably tends to restrain and coerce and it was made by
business agent Taylor to Phillips against a background of
Phillips' involvement in an intraunion conflict with
Taylor and recently filed charges by Phillips against the
Union Accordingly, it constitutes a violation of Section
8(b)(1)(A) of the Act as alleged, see Painters Local 1555,
241 NLRB 741, 743 (1979), and Carpenters Local 808,
238 NLRB 735 (1978)
CONCLUSIONS OF LAW
1 Respondent Sheet Metal Workers' International As-
sociation, Local Union No 224, AFL-CIO is a labor or-
ganization within the meaning of Section 2(5) of the Act
2 Sheet Metal & Roofing Contractors' Association of
the Miami Valley, Ohio, Party in Interest, is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act
3 Respondent and the Party in Interest have a collec-
tive-bargaining agreement which provides for the oper-
ation of a hiring hall and it will effectuate the purposes
of the Act to assert jurisdiction herein
4 By threatening Larry Phillips to the effect that
"Nobody better hire you," the Respondent violated Sec-
tion 8(b)(1)(A) of the Act
5 Respondent otherwise did not operate its hiring hall
or discriminate against Gerald Hawkins in violation of
Section 8(b)(1)(A) and (2) of the Act
REMEDY
Having found that the Respondent Union has engaged
in unfair labor practices in violation of Section 8(b)(1)(A)
of the Act, it will be recommended that it be ordered to
cease and desist therefrom and that it take certain affirm-
ative action to effectuate the policies of the Act
Inasmuch as the record does not show a pattern of
general or widespread unfair labor practices, I find it un-
necessary to recommend issuance of a broad compliance
order
On these findings of fact and conclusions of law and
on the entire record in this case, I issue the following
recommended3
ORDER
Respondent Sheet Metal Workers' International Asso-
ciation, Local Union No 224, AFL-CIO, its officers,
agents, and representatives, shall
1 Cease and desist from
(a) Threatening Larry Phillips regarding his prospects
of being hired by members of the Contractors' Associa-
tion or any other employers
(b) In any like or related manner restraining or coerc-
ing employees or applicants for employment in the exer-
ciSe of rights guaranteed to them by Section 7 of the
Act
2 Take the following action necessary to effectuate
the policies of the Act
(a) Post at its main hall and office in Dayton, Ohio,
and its meeting places for members or applicants for re-
ferral copies of the attached notice marked "Appendix "4
Copies of the notice on forms to be provided by the Re-
gional Director for Region 9, after being signed by Re-
spondent's authorized representative, shall be posted by
Respondent immediately upon receipt and maintained by
it for 60 consecutive days in conspicuous places, includ-
3 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading Posted by Order of the Nation-
al Labor Relations Board" shall read 'Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
Reftr-Date rals Employer Explanation _
9/19 2 Crown Core
9/21 4 Orbit
9/21 1 Abco
9/27 1 Abco
9/28 4 hospital Equip
10/3 2-3 Gan
Heavy lifting, high work
request for "top" layout
welder request
person sent on 9/21, unsat-
isfactory more experi-
ence welder sent
none
recall for 2, request for spe-
cialty men
SHEET METAL WORKERS LOCAL 224 (SHEET METAL) 533
where Hawkins was not called because the contrac-
tors asked for other people by name On other oc-
casions Respondent apparently took the initiative
and referred members that it believed had worked
for the contractors before or it told the contractor
that these persons were available Taylor estimated
that because of the high rate of unemployment in
1983, 95 percent of the referrals made were in the
nature of recalls Some other contractors asked for
specifically skilled individuals such as "top layout"
men, men capable of running blowpipe for a show-
piece job, a light-gauge welder, certified welders,
"shop and field" men, close tolerance workers, and
leadman Other jobs were described as involving so-
called heavy work, or work in high places, some in-
volved job locations such as Lima, some 75 miles
from Dayton, where it was anticipated that the con-
tractor would prefer local men, and some jobs in-
volved "specialty" contractors with lower rates of
pay Because of his familiarity with Hawkins' skills
and preferences, as well as his acquaintanceship
with the qualifications of others, Taylor testifid that
he (or on occasion Setinski or one of the other busi-
ness agents) did not call Hawkins or others higher
up on the out-of-work list before referring a man
lower down on the list out on a job
Taylor also testified that some people were re-
ferred out irrespective of the seniority others on the
list because of considerations of that individual's
needed time to qualify for pension benefits or to
maintain eligibility for insurance or unemployment
benefits
ing all places where notices to employees are customari-
ly posted Reasonable steps shall be taken by Respondent
to ensure that said materials 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 Re-
spondent Union has taken to comply
IT IS FURTHER ORDERED that the complaint in Case 9-
CB-5749 be dismissed
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice
WE WILL NOT in the operation of our hinng hall
threaten prospective employees by indicating to them
that prospective employers have been influenced not to
hire them
WE WILL NOT in any like or related manner restrain or
coerce employees or applicants for employment in the
exercise of the rights guaranteed them by Section 7 of
the Act
_
SHEET METAL WORKERS' INTERNATIONAL
ASSOCIATION, LOCAL UNION No 224,
AFL-CIO
SUPPLEMENTAL DECISION
The Union's job book lists numerous calls by
contractors for employees between August and No-
vembr 18 and Taylor and several contractors testi-
fied in response to questions about referrals made
for the relevant period
On 27 specific job calls from contractors between
September 19 and November 18 cited by the Gener-
al Counsel, the Respondent referred person other
than Hawkins who were below him on its out-of-
work list to jobs Also, on November 29 one Carl
Russel was referred to a job . As explained by
Taylor, the job's supnntendent was Russell's son
and had requested Russell by name Taylor also ex-
plained many of the other specific referrals as ones
These conclusions were based upon the referral by re-
ferral questioning of Respondent's business manager
Ralph Taylor by counsel for the General Counsel on ap-
proximately 44 listings in the Union's job book between
September 19 and November 19, as well as the testimony
of employers who exercised their rights under the in-
volved hinng hall agreement
A referral by referral listing of job calls singled out by
' counsel for the General Counsel during the critical
period covered by the complaint and my evaluation of
the Respondent's answer is reflected in the following
chart
Referrals during the period September 19 to Novem-
ber 21, 1982, to persons not listed higher than no 7,
Gerald Hawkins
STATEMENT OF THE CASE
RICHARD H BEDDOW, JR , Administrative Law Judge
A decision in this proceeding was issued on June 28,
1984 On June 16, 1989, the Board remanded the pro-
ceeding to me for additional findings of fact regarding
which specific hinng hall referral were legitimate and
which were not and regarding credibility findings where
the Charging Party's Hawkins' testimony conflicted with
that of the Respondent's or the Employer's witnesses
In the prior decision the evidence related to job refer-
rals was analyzed and set forth in narrative fashion as my
factual conclusions as follows
534 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Date Refer- Employerrals
10/3 1 Reco request light-gauge welder,
shopman
10/3 2 Houston, TX referred out of local
10/4 3 Louisville, KY out of local, volunteer,
"certified" welders (nu-
clear plant)
10/10 2 Abco recall'
10/11 2 Abco request shop & field men,
one a recall
10/12 1 Smith-Boughn shop & field man
10/12 1 Price-Fugate no specific knowledge, be-
lieved recall
10/18 3 Hughes-Bechtol

2 recalls and to #8 on re-
ferral list2
10/19 1 Kirk & Blum request by name
10/20 2 Croun Core heavy work
10/24 1 Waldmger request for leadman &
recall
10/25 3

Fields & job, former employees3
10/31 + Becker ,. emergency call, for 2 or 3
days, request by name,
skilled layout
10/31 2 Architectural one former employee and
Panels second believed to
be former employee, be-
lieved to be "high" work
and to be in geographical
area of persons referred 4
11/1 1 Tilton believed recall
11/2 2 Koch & Son one by name as superin-
tendent and one by name
confirmed by subsequent
letter
11/2 1 Smith-Boughn recall
11/7 1 Tri-State recall
11-8 1 McCarthy request for leadman
11/8 2 Clevenger request for specialty work-
ers
11/10 1 Blomell Sign former employee
11/18 1 Schriber request for close tolerance
work, recall
11/21 Offer to Hawkins, decline d because of his appoint-
ment with a Board agent
11/29 1 Rumac request for cutter and
burner by name (the
father of job superintend-
ent)
Several other referrals, not reflected in this chart, were
listed in a note pad and generally identified as recalls in
'The company testified It asked for who was available and then was
read a list of people from which it selected on the basis of knowledge
prior of their work running blow pipe and prior employment of one of
the two
' The Company s foreman testified he called for three by name, only
one of whom was available and he recalled a second when he found he
was available The one recalled by name was made specifically because
he needed a few weeks to qualify for certain benefits He did not know if
the third person sent (no 8 on the list) had worked for the company
before but said he believed the job required climbing and heavy work
3 Taylor's belief that this was a short job is not refuted by the apparent
fact that the employer liked the person s work and continued his employ-
ment Taylor also said he thought Hawkins was called for some job
the book and in response to questions, by counsel for the
General Counsel but were not listed or challenged on
brief
Based upon my earlier evaluation and findings, upon
my subsequent review of the record and my evaluation
of the demeanor and credibility of Respondent's and the
Employer's witnesses, I find that none of the contended
referrals are shown to be illegitimate
I credit the testimony of these witnesses regarding
their established practices in referring persons who were
requested by name or recalled and I find it immaterial
that occasionally request by name were not made in
writing, especially inasmuch as they generally appear to
also be in the nature of recalls This conclusion also ap-
plies to the apparent practice of asking for referrals with
specific skills or abilities and I find that Respondent's
business agent usually had either specific or general
knowledge of the requirements of the various jobs He
also had knowledge of Hawkins' history of objecting to
or refusing short jobs and certain types of work, as well
as Hawkins' skill level in various areas, and his physical
condition and complaints These factors were objective
considerations used as part of the referral process and it
is not shown that such use made or exercised in an arbi-
trary or capricious manner
Here, the record is void of persuasive evidence that re-
ferrals were made that were not legitimate The testimo-
ny of the Charging Party contains nothing more than
speculation about referrals to others and the remaining
"supportive evidence" of improper referrals consist of
conjecture backed up by counsel's disagreement with or
disbelief of the answers and explanations made by the
Union and company witnesses
Turning to the question of credibility and conflicts be-
tween the testimony of Charging Party Hawkins and that
of the Respondent's or Employer's witnesses, I find little
in the way of meaningful conflict other than in counsel
for the General Counsel's interpretation of the compara-
tive significance to be afforded such evidence Thus,
while I credit Hawkins' testimony that he did not go
through the Union's apprenticeship program but had suc-
cessfully completed journeyman's schooling in subjects
such as welding and layout, has worked at jobsites out-
side the Dayton area, and had some experience in archi-
tectural work, constructing blowpipes, layout, and shop
and close tolerance work, this information does not
refute the equally credible testimony by union sec-
retary/receptionist Sandra Setinski that she is familiar
with Hawkins' physical problems and job abilities based
on his conversations with her, and that he told her he
doesn't do or like shop layout, doesn't care for siding or
decking, especially if it involves heights and a lot of
climbing, and that he refused a job in July 1983, for the
latter reason
around this time but refused it, however, this is not reflected in Respond-
ent s records
4 Becker s witness testified that the employee reported after the week-
end following Thursday, the 27th, and the heart attack of an employee
on the job, was still working for Becker and could have been kept on the
job beyond a short period Also the Employer testified that It ask for and
the Respondent s exhibit reflects a requests for a specific person
Explanation
SHEET METAL WORKERS LOCAL 224 (SHEET METAL) 535
Here, I specifically find that her inability to definitive-
ly recall specific dates or jobs when this occurred does
not refute or outweigh her overall highly believable de-
meanor and the affirmative credibility of her testimony
Morover, Hawkins admitted that in the past he had in-
dicated to Setmski and to the business agents that he had
a preference for outside work, that he had physical prob-
lems, and that he had a preference for a job that didn't
involve climbing He also testified that he got along well
with Taylor, Setmski, and the others and that he did not
believe there was any animosity between them, all testi-
mony that is consistent with that of the Respondent's
witnesses
I credit Hawkins' testimony that he felt he could do
and had done the type of layout work involved at Em-
ployer Becker's jobsite This however, does not refute
Becker's credible testimony that it needed some one
"skilled" in layout and required someone who had gone
through the apprenticeship program
Other than as set forth above, I find no specific refer-
ence to so-called "key" credibility resolutions referred to
in counsel for the General Counsel's brief in support of
exceptions My reexamination of the record and my ear-
lier factual conclusions leads to the further conclusion
that Hawkins' own credbile testimony shows nothing
more than that he was a basic journeyman with some
minimal training and experience in many areas but with-
out special or better than average ability or interest in
some of the more demanding skills He specifically con-
veyed to the Union's business manager and others at the
hiring hall his preferences for or against various types of
work and he also made it clear to the Respondent that
he had physical problems (specifically a bad shoulder),
that affected his work abilities and he sought to avoid
jobs such as those that involved a lot of lifting or climb-
ing I also credit the testimony that indicates he ex-
pressed a disinterest in short-term jobs and that he some-
times turned down jobs for these reasons With the ex-
ception of a casual remark to Taylor in April, that he felt
like a new man after changing doctors, there is nothing
to suggest that he sought to disavow his earlier expres-
sions of job preferences or to express a new found desire
or willingness to accept jobs that he previously had
sometimes avoided
In order to justify a finding that the Respondent's re-
ferrals were not legitimate, the underlying record must
be based upon something more than statistical specula-
tion Here, the allegations are unsupported by either
direct, presumptive, or implicit facts that might tend to
show improper misapplication of Respondent's hiring
hall practices The only evidence in this regard brought
forth by counsel for the General Counsel consist of his
speculation that a referral was per se illegitimate if it was
to a person listed after Hawkins and his consistent as-
sumption that the testimony of the business agent and
other union and company witnesses was untruthfull
Subsequent to the issuance of the prior decision, the
Board had occasion to review a matter substantially simi-
lar to that involved here The record there showed that
applicants were regularly referred out of the order in
which they had signed the Union's out-of-work register,
but the judge credited the Respondent's testimony that
these referrals were in accordance with certain agreed
on and legitimate priorities Although the General Coun-
sel argued that the lack of documentation of these rea-
sons applied to specific referrals requires that the re-
spondent's contentions be discredited, the Board found
that the General Counsel has not demonstrated that the
Respondent Union operated its hiring hall in an arbi-
trary, unfair, or discriminatory manner, see Morrison-
Knudson, 291 NLRB 258 (1988)
Here, I specifically find that the lack of discriminatory
intent regarding nonreferral to Hawkins clearly goes to
support the credibility of Business Manager Taylor's ex-
planation of the various reasons why others were re-
ferred on the several dates in the fall of 1983 As other-
wise noted above, I credit the Union's and the Employ-
er's testimony that referrals were made substantially in
accordance with their hiring hall agreement (which
allows referral by name, recalls of former employees,
and request for the most qualified individuals) Accord-
ingly, I reaffirm my findings that the record supports a
conclusion that the rules were substantially followed and
that any deviations from the rules were minor and that
while the record indicated Respondent's procedural
practices and record keeping were somewhat careless
and imprecise and relied too heavily on the memories of
those involved, it did not demonstrate such a lack of
standards and adherence to those standards as to be arbi-
trary or capricious
Here, as in the Morrison-Knudson case, supra, the mere
existence of poor recording practices that could lend
themselves to abuse, is insufficient in Itself to prove such
abuse and there is no evidence here that the Union pre-
ferred supporters of its incumbent leadership, or that if
discriminated based on exercise of Section 7 rights, or
race or sex, or on any other impermissible basis or that
the Union's favored their personal friends or used their
positions in the referral system in a corrupt manner
Under the circumstances, I again conclude that the
General Counsel has failed to persuasively show that Re-
spondent's operation of its hiring hall violated Section
8(b)(1)(A) and (2) of the Act as alleged and, accordingly,
I therefore recommend dismissal of the complaint in
Case 9-CB-5749
CONCLUSIONS OF LAW
1 Respondent Sheet Metal Workers' International As-
sociation, Local Union No 224, AFL-CIO is a labor or-
ganization within the meaning of Section 2(5) of the Act
2 Sheet Metal & Roofing Contractors' Association of
the Miami Valley, Ohio, Party in Interest, is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act
3 Respondent and the Party in Interest have a collec-
tive-bargaining agreement which provides for the oper-
ation of a hiring hall and It will effectuate the purposes
of the Act to assert jurisdiction herein
4 Respondent did not operate its hiring hall or dis-
criminate against Gerald Hawkins in violation of Section
8(b)(1)(A) and (2) of the Act
536 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 5
ORDER
The complaint in Case 9-CB-5749 is dismissed in its
entirety
5 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations, the findings, conclusions, and recommended Board and all objections to them shall be deemed waived for all pur-
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the poses