Marine Engineers District 1 (Dutra Construction Co.)

National Labor Relations Board - Board Decisions

Sep 13, 1993

312 N.L.R.B. 55 (N.L.R.B. 1993)

55
312 NLRB No. 17
MARINE ENGINEERS DISTRICT 1 (DUTRA CONSTRUCTION CO.)
1 On November 12, 1992, Administrative Law Judge Jerrold H.
Shapiro issued the attached decision. The Respondent filed excep-
tions and a supporting brief. The General Counsel filed an answering
brief. 1 As amended at hearing.
District No. 1, Marine Engineers’ Beneficial
Association/National Maritime Union, AFL–
CIO (Dutra Construction Co.) and John Erik
Raahauge. Case 32–CB–3784
September 13, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The question presented for the National Labor Rela-
tions Board review in this case1 is whether the judge
correctly found that the Respondent violated Section
8(b)(2) and 1(A) of the Act by refusing to refer the
Charging Party, John Raahauge, for employment be-
cause he was not a member of the Respondent.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.
The Respondent does not directly dispute the finding
that it refused to refer the Charging Party, John
Raahauge, because he was not a union member. Rath-
er, its exceptions to this finding contest the denial of
a request for an indefinite postponement of the unfair
labor practice hearing and the exclusion from the
record of an affidavit submitted ex parte by the Re-
spondent.
The Respondent’s postponement motion, filed 5
days prior to the hearing, was occasioned by litigation
pending in the United States District Court for the
Southern District of New York to resolve an internal
factional struggle for control of the Respondent. The
motion requested more time to prepare for hearing. It
was summarily denied by the Deputy Chief Adminis-
trative Law Judge.
The affidavit in question was submitted with a letter
to the judge in the instant proceeding, stating that the
Respondent would not be represented by counsel at the
hearing for the reasons expressed in its rejected motion
for postponement. The affidavit purports to describe
the duties of a master boat operator, the classification
for which the Employer requested Raahauge by name,
and the accompanying letter takes the position that the
duties are supervisory and that, because Raahauge
would have been a statutory supervisor, unprotected by
Section 7, the complaint should be dismissed. The
judge treated the letter as an amendment to the Re-
spondent’s answer to the complaint that would add an
affirmative defense, and he granted the motion to
amend. On the motion of the General Counsel, how-
ever, he struck the affidavit as inadmissible hearsay.
We find no merit in the Respondent’s exceptions re-
garding either the denial of its postponement motion or
the exclusion of the affidavit. In view of the indefinite
length of the requested postponement and the fact that
the court proceeding on which the postponement was
predicated was irrelevant to the merits of the complaint
allegations in the instant case, we find that it was not
an abuse of discretion for the Deputy Chief Adminis-
trative Law Judge to deny the motion. Regarding the
admissibility of the affidavit, the Respondent did not
allege that the affiant was unavailable to testify at the
hearing. Furthermore, contrary to the Respondent’s
suggestion, a judge has no obligation to question wit-
nesses on a party’s behalf.
The duty of proving the affirmative defense rested
with the Respondent, and it did not carry this burden
by submitting an affidavit from a witness not shown
to be unavailable.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, District No. 1,Marine En-
gineers’ Beneficial Association/National Maritime
Union, AFL–CIO, San Francisco, California, its offi-
cers, agents, and representatives, shall take the action
set forth in the Order.
Sharon Chabon, for the General Counsel.
Michael D. Derby, for the Respondent.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge. This
proceeding, in which I held a hearing on September 30,
1992, is based on an unfair labor practice charge filed on
December 4, 1991, by John Erik Raahauge (Raahauge), and
on a complaint issued on January 21, 1992, on behalf of the
General Counsel of the National Labor Relations Board
(Board), by the Board’s Regional Director for Region 32, al-
leging that District No. 1, Marine Engineers’ Beneficial
Association/National Maritime Union, AFL–CIO (Respond-
ent) has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(b)(2) and (1)(A) of the Na-
tional Labor Relations Act (Act). On February 13, 1992, Re-
spondent filed an answer to the complaint denying the com-
mission of the alleged unfair labor practices.
The complaint, as amended in certain minor respects at the
hearing, alleges Respondent is the sole and exclusive source
of referrals for boat operators employed by the Dutra Con-
struction Co., Inc. (Employer),1 and that since on or about
November 18, 1991, the Employer has requested Respondent
to dispatch Raahauge to work for the Employer as a boat op-
erator and, in violation of Section 8(b)(2) and (1)(A) of the
Act, Respondent has dispatched to the Employer only those
applicants who are members of Respondent and has failed
56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and refused to refer Raahauge to the Employer for employ-
ment as a boat operator because Raahauge is not a member
of the Respondent.
The hearing in this proceeding was scheduled for Septem-
ber 30, 1992, after having been previously rescheduled to
that date. On September 25, 1992, by letter, which was faxed
on that date to Deputy Chief Administrative Law Judge
Earldean V.S. Robbins, Respondent’s counsel filed a motion
requesting that the hearing be postponed indefinitely. The
General Counsel opposed the motion. Judge Robbins, by
order issued September 25, denied the motion.
Respondent was not represented at the hearing in this pro-
ceeding by counsel or otherwise represented. On September
29, 1992, the day before the hearing, I received by fax from
Respondent’s counsel a copy of a letter dated September 29,
which advised me, among other things, that for the reasons
set forth in his September 25 motion for a continuance, that
Respondent would not be represented at the hearing. In this
letter, Respondent’s counsel also advised me that it was Re-
spondent’s position that Charging Party Raahauge would
have been employed as a supervisor within the meaning of
Section 2(11) of the Act, while employed as a boat operator
by the Employer, and for this reason Respondent did not vio-
late the Act even if, as alleged in the complaint, it failed and
refused to dispatch Raahauge to the Employer. In support of
this contention, Respondent’s counsel attached to his Septem-
ber 29 letter an affidavit from George Douglas Gould, which
had apparently been furnished to the General Counsel during
the investigatory state of this proceeding.
I treated Respondent counsel’s aforesaid statement of posi-
tion, set forth in his September 29 letter, as a motion to
amend the Respondent’s answer to the complaint to allege,
as an affirmative defense, that Raahauge, while employed as
a boat operator by the Employer, would not have enjoyed the
protection of the Act because he would have been a super-
visor within the meaning of Section 2(11) of the Act. I grant-
ed this motion, without objection by the General Counsel.
However, acting on the General Counsel’s motion to strike,
I struck the affidavit offered in support of the motion be-
cause the affidavit constituted inadmissible hearsay evidence.
On the entire record, and from my observation of the de-
meanor of the witnesses, and having considered the General
Counsel’s posthearing brief, I make the following
FINDINGS OF FACT
I. JURISDICTION
A. The Employer’s Business
The Employer, a California corporation, is a general con-
tractor in the building and construction industry, with its
principal place of business in Rio Vista, California, and with
an office and place of business in Alameda, California.
During the 12-month period ending December 31, 1991,
for work performed during that period, the Employer re-
ceived between $5 million and $6 million from the United
States Department of the Navy for building a pier for the
Navy Department in the State of Hawaii. During that same
period of time, the Employer paid $75,462.50 to American
Workboats for services performed in 1991 by that employer
for the Employer, in the State of Hawaii, in connection with
the Employer’s job of building the pier for the Department
of the Navy.
Based on the foregoing, I find the Employer is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act and meets one or more of the
Board’s applicable discretionary jurisdictional standards.
B. Respondent’s Status as a Statutory Labor
Organization
The complaint alleges, ‘‘Respondent is now, and has been
at all times material herein a labor organization within the
meaning of Section 2(5) of the Act.’’ This allegation con-
cerns a matter which is within the Respondent’s direct
knowledge. Yet, in its answer to the complaint, Respondent
denied this allegation, ‘‘due to lack of knowledge or infor-
mation sufficient to form a belief as to the truth of the alle-
gations herein.’’
General experience and common sense indicate Respond-
ent must know whether it meets the criteria for a labor orga-
nization set forth in Section 2(5) of the Act. Thus, for Re-
spondent to allege it is unable to answer the allegation that
it is a labor organization within the meaning of Section 2(5)
because it lacks knowledge or information sufficient to form
a belief whether it meets Section 2(5)’s criteria, smacks of
frivolity, and for this reason I shall strike that portion of the
Respondent’s answer.
Alternatively, I find the record contains sufficient evidence
to establish that Respondent is a labor organization within
the meaning of Section 2(5) of the Act. The record estab-
lishes that Respondent represents the employees employed as
boat operators by the Employer, and has a collective-bargain-
ing agreement with the Employer covering those employees
and that the agreement contains a union-security clause and
a grievance arbitration procedure. It also has provisions re-
garding wages, hours, health and welfare and pension bene-
fits, vacation and holiday pay, and the right of Respondent’s
representatives to visit the job at any time for the purpose
of representing the employees covered by the agreement. In
its answer to the complaint, as described supra, Respondent
did not unequivocally deny that it was a labor organization
within the meaning of Section 2(5) of the Act, rather it as-
serted it lacked knowledge or information sufficient to form
a belief as to the truth of the allegation. No evidence was
presented to refute the Respondent’s status as a labor organi-
zation. Accordingly, based on the absence of evidence that
employees do not participate in the Respondent and in view
of the collective-bargaining agreement between the Employer
and Respondent designating Respondent as the exclusive col-
lective-bargaining representative of the Employer’s boat op-
erators, I find Respondent to be a labor organization within
the meaning of Section 2(5) of the Act. Mac Towing, Inc.,
262 NLRB 1331, 1332 (1982); Building & Construction
Trades Council of Boston, 119 NLRB 1816, 1817 (1958);
F. C. Russell Co., 116 NLRB 1015 (1956).
II. THE UNFAIR LABOR PRACTICES
A. The Facts
Respondent is the exclusive collective-bargaining rep-
resentative of the Employer’s boat operators and is party to
a collective-bargaining agreement with the Employer, effec-
tive January 1, 1990, to July 1, 1993, covering those employ-
57MARINE ENGINEERS DISTRICT 1 (DUTRA CONSTRUCTION CO.)
2 I note that it was Sasso who acted as Respondent’s negotiator
during the negotiations which resulted in Respondent’s collective-
bargaining agreement with the Employer and it was Sasso who
signed the agreement on Respondent’s behalf.
3 Unless specified otherwise, all dates hereinafter refer to the year
1991.
ees. The agreement obligates the Employer to use the Re-
spondent’s hiring hall when it hires boat operators. In this re-
gard, Section 2 of the Agreement, entitled ‘‘Method of Em-
ployment,’’ reads:
A. The Employer shall secure applicants through the
Union’s job referral system; . . . The Union shall dis-
patch such applicants as are requested by the Employer,
including applicants specifically requested by name;
provided, however, such applicants so requested by
name shall have one (1) or more year’s experience at
their classification in the marine construction industry.
B. When in need of employees, the Employer shall
first check with the Union as to the availability of ap-
plicants before hiring, shall request the Union to furnish
applicants for employment to such applicants. After
such preference, the Employer may obtain applicants
from any other available source and may employ such
applicants so obtained. The Union shall furnish the Em-
ployer with experienced and satisfactory applicants
when and as called upon to do so, when available. In
the event the Union is unable to furnish applicants as
requested by the Employer within 48 hours of such re-
quest . . . the Employer may obtain applicants from
any other available source and may employ such appli-
cants so obtained.
. . . .
E. The Employer shall retain the right to reject for
cause any job applicant referred by the Union. Upon re-
quest of the Union, the Employer shall furnish the rea-
son for such rejection. The Employer shall be the sole
judge of the qualifications and competence of each ap-
plicant and upon such basis may reject such applicant.
During the time material, Tom Kelly was employed by the
Respondent as dispatcher/business representative. He was the
person employed by the Respondent who the Employer dealt
with whenever the Employer secured or attempted to secure
job applicants from Respondent’s hiring hall. Kelly’s supe-
rior was Anthony ‘‘Tony’’ Sasso. He is Respondent’s prin-
cipal official in the San Francisco Bay Area, the geographic
area where the events material to this case occurred.2
The Charging Party, Raahauge, has been operating boats
for approximately 25 years. In 1991, during the time mate-
rial, he had approximately 1 year of experience operating
boats in the marine construction industry. He is not a mem-
ber of Respondent and prior to the events material to this
case was not registered on the out-of-work list maintained by
the Respondent’s hiring facility.
The Employer first employed Raahauge as a boat operator
in the spring of 1991,3 for 3 or 4 days. He was not dis-
patched to the job by Respondent. He was hired directly by
the Employer. After being on the job for 1 or 2 days,
Raahauge was advised by the Employer’s job supervisor to
go to Respondent’s office to register.
Raahauge went to the Respondent’s office and asked to
speak to a business agent about joining Respondent. He was
referred by the secretary to Sasso, who told him Respondent
was not accepting new members at that time because Re-
spondent had enough members to take care of the available
jobs. Sasso told Raahauge that he could sign the Respond-
ent’s out-of-work list and could work for the Employers
under contract with the Respondent, including the Employer,
for a period of 30 days without being a member of Respond-
ent. This meeting ended with Raahauge signing Respondent’s
out-of-work list and with Sasso instructing him that if the
Employer contacted him directly to offer him a job, that
Raahauge was to notify the Respondent and that ‘‘if [Re-
spondent] did not have any members that could fill the job,
then [Raahauge] could take the job.’’
In September, Raahauge worked for 2 days for the Em-
ployer as a boat operator. Once again he was not dispatched
to the job by the Respondent. He was hired directly by the
Employer. When Raahauge informed Sasso, after the fact, of
his employment by the Employer, Sasso told him that he was
supposed to call Sasso, prior to taking the job or shortly
thereafter, ‘‘because, you know, I told you before, if there’s
members available in the hall, they come first, and if we
don’t have any members that can fill the job, then you can
take the job.’’
In September, after Raahauge had worked for the Em-
ployer, Kelly telephoned John Dieu, the Employer’s dredging
and construction manager, and told him, among other things,
that Raahauge was not a member of Respondent and that
Raahauge should come in to see Kelly the next time the Em-
ployer employed him. Dieu replied that the next time he em-
ployed Raahauge he would tell him to go to Respondent to
be dispatched.
In November the Employer was doing dredging work for
Chevron U.S.A., in the vicinity of the Chevron Long Wharf,
which is located on San Francisco Bay. In connection with
this project, the Employer, which at the time employed one
boat operator, decided to start a second shift and to employ
an additional boat operator to work that shift. The Employer
also decided to hire Raahauge for that position. During No-
vember 18–19, as described in detail infra, Dieu, the Em-
ployer’s dredging and construction manager, and Raahauge,
tried unsuccessfully to persuade Respondent to dispatch
Raahauge to the Employer to work as a boat operator on the
Chevron job.
On November 18, Dieu telephoned Kelly and requested
that he dispatch Raahauge to the Chevron job. Kelly ac-
knowledged the request and this ended the conversation.
Shortly thereafter, Kelly telephoned Dieu and stated that
Raahauge was not a member of Respondent and that Kelly
could not dispatch him because Respondent ‘‘had good
members on the out-of-work list sitting on the bench.’’
Dieu telephoned Raahauge and told him he had requested
that Respondent dispatch him to the Employer to work on
the Chevron job. Dieu also told Raahauge to go to Respond-
ent’s office for the purpose of joining the Respondent and
getting dispatched.
Raahauge, instead of going to Respondent’s office,
promptly telephoned Respondent’s office and spoke to Kelly.
He told Kelly what Dieu had said. Kelly replied that Dieu
‘‘had it all wrong, that [Respondent] had members that they
were in the process of contacting . . . to fill the job.’’
58 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Raahauge replied that Dieu had told him he had telephoned
Respondent’s office and requested Raahauge for the job.
Kelly replied, ‘‘I don’t care who requested you. The mem-
bers come first.’’
Raahauge, after his above-described conversation with
Kelly, telephoned Dieu’s office and relayed Kelly’s message
to Dieu’s secretary. Subsequently, Dieu telephoned Raahauge
and stated he had again asked Respondent to dispatch
Raahauge, because he did not want an inexperienced boat
operator operating equipment worth a couple of million dol-
lars. Dieu instructed Raahauge to go to Respondent’s office
for the purpose of paying his union dues and getting dis-
patched.
Prior to his above-described telephone conversation with
Raahauge, Dieu had in fact telephoned Kelly and told him
he still wanted Respondent to dispatch Raahauge. Kelly re-
plied he had some good applicants he wanted Dieu to inter-
view. Dieu indicated he did not want to do that, but wanted
Kelly to dispatch Raahauge and complained that in the past
Respondent had never given him this much difficulty. Kelly
responded by stating, ‘‘I’ve got these good members sitting
on the bench and I’m not going to take a new member in
until I send those out.’’
In compliance with Dieu’s instruction, Raahauge went to
the Respondent’s office, which is located in San Francisco,
California. Raahauge spoke to Kelly, who told him that he
did not understand why Raahauge had come to the office be-
cause ‘‘I’ve got calls out to several members to fill this
job.’’ When Raahauge attempted to hand Kelly the money
necessary for Raahauge to join Respondent, Kelly refused to
accept it. Raahauge accused Respondent of treating him dif-
ferently now than in the past and of treating him differently
than it had treated other applicants who had been allowed to
join Respondent after having been hired directly by employ-
ers. Kelly left the room and returned with Sasso. Sasso gave
Raahauge the following explanation for Respondent’s con-
duct: ‘‘[W]e’re not taking new members . . . we’ve got calls
out to members that are out of work. We have enough mem-
bers right now, and that’s the way it goes.’’ Raahauge re-
plied by stating that in the past when applicants had gotten
their jobs from employers, they had been permitted to join
the Respondent, and stated he felt Sasso was blackballing
him because in the mid-1980s Raahauge had been a part of
a group of employees who had voted to decertify the Re-
spondent. Sasso stated Raahauge had no proof to substantiate
that accusation. The meeting ended with Raahauge asking,
didn’t the fact he was on Respondent’s out-of-work list mean
anything? Sasso answered, ‘‘I don’t owe you or anybody on
that out-of-work list anything. My duty is to provide for my
members.’’
Following his above-described meeting with Kelly and
Sasso, Raahauge went to Dieu’s office, which is located in
Alameda, California, and when he walked into the office
Dieu was talking with Sasso on the telephone; a speaker
phone.
Raahauge’s testimony of what was said during this con-
versation, follows: Dieu stated that he was tired of the un-
qualified applicants Respondent was sending him and asked
why Sasso did not dispatch Raahauge; Sasso answered, ‘‘Be-
cause he is not a member and you’ve got a contract with us
and it specifies that you have to take union members’’; Dieu
answered, ‘‘But it also says they have to be qualified’’;
Sasso stated he would send someone who was qualified; and
Dieu ended the conversation by stating, ‘‘Okay, send them.’’
Raahauge further testified that immediately after the con-
versation between Dieu and Sasso, that Dieu told him the
Employer could not employ him because Dieu did not want
any ‘‘union problems.’’
Dieu’s testimony concerning what was said during his
telephone conversation with Sasso, follows: Sasso told him
Respondent did not intend to dispatch Raahauge because he
was not a member of Respondent and Respondent had ‘‘good
people’’ or ‘‘good members’’ on the bench, or words to this
effect.
Dieu further testified that after his telephone conversation
with Sasso that Dieu telephoned Kelly and told him to go
ahead and send him one of the applicants who Sasso and
Kelly had previously indicated they wanted Dieu to inter-
view.
Later that day, November 19, about 4:30 p.m., Respondent
dispatched an applicant to the Employer. Dieu was unable to
hire this applicant, even though he was qualified, because he
had a full beard which he refused to shave. Chevron, for
safety reasons, refused to allow employees to work on its
premises with full beards.
Dieu then telephoned Kelly and informed him of the out-
come of the interview and repeated his request that Respond-
ent dispatch Raahauge. Kelly replied by stating that
Raahauge ‘‘was not a member of the Union and [Kelly] had
a couple more guys that he wanted [Dieu] to try out on the
boat.’’
The next day, Kelly dispatched a man to the Employer,
who was a qualified boat operator. He was hired by Dieu for
the Chevron job.
B. Discussion and Conclusions
A union may lawfully administer a referral system for the
benefit of the employers seeking workers and employees
seeking jobs. Teamsters Local 357 v. NLRB, 365 U.S. 667,
672–677 (1961). However, a union violates Section
8(b)(1)(A) and (2) of the Act, if it operates an exclusive re-
ferral system and fails or refuses to refer applicants for em-
ployment because of discriminatory considerations. Id. at
676–677. Accordingly, a union that operates an exclusive
hiring facility violates Section 8(b)(1)(A) and (2) of the Act,
if it refuses to refer an applicant for employment because the
applicant is not a member of the union.
The complaint herein alleges, in substance, that Respond-
ent is the sole and exclusive source of referrals for boat oper-
ators employed by the Employer and that since on or about
November 18 the Employer has requested that Respondent
dispatch Raahauge to work for the Employer as a boat opera-
tor and, in violation of Section 8(b)(1)(A) and (2) of the Act,
Respondent has refused to honor the Employer’s request be-
cause Raahauge is not a member of the Respondent. This al-
legation has merit for the reasons below.
The record herein, as described supra, establishes that Re-
spondent operates a hiring facility for the benefit of employ-
ers and employees and that, pursuant to the terms of its col-
lective-bargaining agreement with the Employer, administers
an exclusive referral system whereby the Employer is con-
tractually obligated to hire its boat operators exclusively
from Respondent’s hiring facility. The record herein, as de-
scribed supra, also establishes that on November 18 the Em-
59MARINE ENGINEERS DISTRICT 1 (DUTRA CONSTRUCTION CO.)
4 In analyzing the Respondent’s refusal to honor the Employer’s
November 18 request that Raahauge be dispatched to the Employer,
I have been guided by the Board’s decision in Wright Line, 251
NLRB 1083 (1980). See Service Employees Local 9 (American
Building Maintenance), 303 NLRB 735 (1991).
5 The record lacks evidence to support Respondent’s affirmative
defense that Raahauge, as a boat operator, would have been em-
ployed by the Employer as a supervisor within the meaning of Sec.
2(11) of the Act.
6 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.
ployer requested Respondent to refer Raahauge to the Em-
ployer for employment as a boat operator on its Chevron job
and that Respondent refused to honor this request. Thus, the
sole remaining question for decision is whether, when it re-
fused to honor the Employer’s request, the Respondent was
motivated by the fact that Raahauge was not a member of
the Respondent. If Respondent’s refusal to honor the Em-
ployer’s request for Raahauge was motivated by the fact that
Raahauge was not a member of the Respondent, then Re-
spondent’s refusal violated Section 8(b)(1)(A) and (2) of the
Act, as alleged in the complaint.
I am of the opinion, for the reasons below, that the record
as a whole establishes that a motivating factor in Respond-
ent’s refusal to refer Raahauge to the Employer was the fact
that he was not a member of the Respondent, and that the
record as a whole fails to establish that Respondent would
have refused to refer Raahauge, in any event, even if he had
been a member of the Respondent.4
In the spring of 1991 when Raahauge registered for work
on the Respondent’s out-of-work list, he was notified by Re-
spondent’s representative Sasso that he would be referred for
work to the Employer only ‘‘if [Respondent] did not have
any members that could fill the job.’’
In September, when Raahauge was being reprimanded by
Sasso for having worked for the Employer without first hav-
ing informed Respondent, Sasso reminded Raahauge, ‘‘If
there’s members available in the hall, they come first, and
if we don’t have any members that can fill the job, then you
can take the job.’’
On November 18, when Dieu, the Employer’s construction
manager, telephoned Kelly, the Respondent’s hiring
dispatcher/business representative, and requested that Kelly
refer Raahauge to the Employer as a boat operator on the
Chevron job, Kelly responded by stating Raahauge was not
a member of Respondent and Kelly could not dispatch him
because Respondent ‘‘had good members on the out-of-work
list sitting on the bench,’’ and when later that same day
Raahauge telephoned Kelly and told him he understood Dieu
had asked Respondent to refer him to the Chevron job, Kelly
replied, ‘‘I don’t care who requested you[,] [t]he members
come first,’’ and later, when Dieu made another telephone
call to Kelly asking him to dispatch Raahauge, Kelly re-
sponded by stating, ‘‘I’ve got these good members sitting on
the bench and I’m not going to take a new member in [refer-
ring to Raahauge] until I send those out.’’
Subsequently, when Raahauge personally visited Respond-
ent’s office and spoke to Kelly and Sasso about the Employ-
er’s request that he be dispatched to the Chevron job, Kelly
told him he did not understand why Raahauge had bothered
to come to Respondent’s office because, he stated, ‘‘I’ve got
calls out to several members to fill this job,’’ and, in re-
sponse to Raahauge’s effort to become a member of Re-
spondent, Sasso declared, ‘‘We’re not taking new members
. . . we’ve got calls out to members that are out of work,’’
and then when Raahauge asked whether his registration on
Respondent’s out-of-work list meant anything, Sasso an-
swered, ‘‘I don’t owe you or anybody on that out-of-work
list anything[,] [m]y duty is to provide for my members.’’
Based on the evidence set forth immediately above, I find
the General Counsel has established that when Respondent
refused the Employer’s November 18 request that Raahauge
be dispatched to the Employer as a boat operator for the Em-
ployer’s Chevron job, that Respondent’s refusal was moti-
vated in substantial part by the fact that Raahauge was not
a member of the Respondent. In view of this and because the
record as a whole fails to establish that Respondent would
have refused to refer Raahauge to the Employer, in any
event, even if he had been a member of Respondent, I find
Respondent violated Section 8(b)(1)(A) and (2) of the Act by
refusing to honor the Employer’s November 18 request that
Raahauge be referred to the Employer’s Chevron job.5
CONCLUSIONS OF LAW
1. On November 18, 1991, Respondent, in the operation
of its exclusive hiring hall, refused to refer Raahauge to a
job as a boat operator for the Employer because Raahauge
was not a member of the Respondent, thereby violating Sec-
tion 8(b)(1)(A) and (2) of the Act.
2. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices violative of Section 8(b)(1)(A) and (2) of the Act,
I shall recommend that it cease and desist therefrom and take
certain affirmative action in order to effectuate the policies
of the Act.
I shall recommend an order requiring the Respondent to
make Raahauge whole for any loss of earnings and other
benefits suffered as a result of the Respondent’s unlawful re-
fusal to dispatch him to work for the Employer on November
18, 1991, as a boat operator on the Employer’s Chevron job.
Backpay shall be computed in the manner set forth in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, District No. 1, Marine Engineers’ Bene-
ficial Association/National Maritime Union, AFL–CIO, San
Francisco, California, its officers, representatives, and agents,
shall
1. Cease and desist from
(a) Discriminating against employees or applicants for em-
ployment in the operation of its exclusive hiring facility, by
60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 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.’’
refusing to dispatch or refer them for employment because
they are not members of the Respondent.
(b) Causing or attempting to cause the Employer or any
other employer to discriminate against employees or appli-
cants for employment, in violation of Section 8(a)(3) of the
Act.
(c) In any like or related manner restraining or coercing
employees or applicants for employment in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make John Erik Raahauge whole for any loss of earn-
ings and benefits he may have suffered because he was un-
lawfully denied a dispatch and referral to employment with
the Employer on November 18, 1991, in the manner set forth
in the remedy section of this decision.
(b) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all hiring records,
dispatcher lists, referral slips, and other documents necessary
to analyze and compute the amount of backpay due John
Erik Raahauge.
(c) Post at its business offices, hiring hall and meeting
places in San Francisco, California, copies of the attached
notice marked ‘‘Appendix.’’7 Copies of the notice, on forms
provided by the Regional Director for Region 32, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately on receipt and
maintained for 60 consecutive days in conspicuous places,
including all places where notices to members and employ-
ees are customarily posted. Reasonable steps shall be taken
by it to ensure that the notices are not altered, defaced, or
covered by any other material.
(d) Additional copies of the attached notice marked ‘‘Ap-
pendix’’ shall be signed by an authorized representative of
the Respondent and forthwith returned to the Regional Direc-
tor for Region 32 for posting by the Employer, it being will-
ing, at its places of business where notices to its employees
are customarily posted.
(e) Notify the Regional Director in writing within 20 days
from the date of this order what steps Respondent has taken
to comply.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT discriminate against employees or applicants
for employment, in the operation of our exclusive hiring hall,
by refusing to dispatch or refer them to employment because
they are not members of our union.
WE WILL NOT cause or attempt to cause Dutra Construc-
tion Company, Inc., or any other employer, to discriminate
against employees or applicants for employment, in violation
of Section 8(a)(3) of the Act.
WE WILL NOT in any like or related manner restrain or co-
erce employees or applicants for employment in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL make John Erik Raahauge whole for any loss of
earnings or other employment benefits he may have suffered
because we unlawfully refused to refer and dispatch him to
employment with Dutra Construction Company, Inc., on No-
vember 18, 1991, with interest to be computed on the
amount owed.
DISTRICT NO. 1, MARINE ENGINEERS’ BENE-
FICIAL ASSOCIATION/NATIONAL MARITIME
UNION, AFL–CIO