Painters Local 1115 (C & O Painting)

National Labor Relations Board - Board Decisions

Oct 12, 1993

312 N.L.R.B. 1036 (N.L.R.B. 1993)

1036
312 NLRB No. 154
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
1 In its answers to the complaints, Respondent admits it is a labor
organization within the meaning of Sec. 2(5) of the Act, and in its
answers, as amended at the start of the hearing, admits that the Em-
ployer meets the Board’s applicable discretionary jurisdictional
standard and is an employer engaged in commerce within the mean-
ing of Sec. 2(6) and (7) of the Act. I therefore find it will effectuate
the policies of the Act for the Board to assert its jurisdiction in these
cases.
International Brotherhood of Painters and Allied
Trades, Painters Local Union No. 1115, AFL–
CIO. (C & O Painting) and Nick Hernandez.
Cases 32–CB–3829 and 32–CB–3869
October 12, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On March 25, 1993, Administrative Law Judge
Jerrold H. Shapiro issued the attached decision. The
Respondent filed exceptions and a brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and brief and has decided to affirm the judge’s rulings,
findings,1 and conclusions and to adopt the rec-
ommended Order.
We find it unnecessary to rely on the judge’s discus-
sion of the qualifications of Albert Hu, a member of
the Respondent on the out-of-work register.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, International Brotherhood
of Painters and Allied Trades, Painters Local Union
No. 1115, AFL–CIO, Stockton, California, its officers,
agents, and representatives, shall take the action set
forth in the Order.
Jeffrey Henze, Esq., for the General Counsel.
David Rosenfeld, Esq. (Van Bourg, Weinberg, Roger &
Rosenfeld), for the Respondent.
Nick Hernandez, for himself.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge. This
proceeding, in which I held a hearing on January 14, 1993,
is based on unfair labor practice charges filed by Nick Her-
nandez (Hernandez) against International Brotherhood of
Painters and Allied Trades, Painters Local Union No. 1115,
AFL–CIO (Respondent) in Case 32–CB–3829 on February
19, 1992, and in Case 32–CB–3869 on March 31, 1992. The
Regional Director for Region 32 of the National Labor Rela-
tions Board (Board), on behalf of the Board’s General Coun-
sel, issued a complaint in Case 32–CB–3829 on March 31,
1992, and a complaint in Case 32–CB–3869 on May 8, 1992,
and on May 20, 1992, issued an order consolidating these
cases for hearing.
The complaint in Case 32–CB–3829 alleges that on Janu-
ary 22, 1992, the Respondent, which represents an appro-
priate unit of the employees employed by C & O Painting
(Employer), caused the Employer to hire James Severn, in
violation of Section 8(b)(1)(A) and (2) of the National Labor
Relations Act (Act), by engaging in this conduct for arbi-
trary, capricious, discriminatory, and invidious reasons, in-
cluding but not limited to Severn’s personal relationship with
Respondent’s hierarchy and notwithstanding that Severn was
not entitled to a dispatch to the Employer under the terms
of the Respondent’s contract with the Employer and notwith-
standing that the Employer did not request and did not seek
the dispatch of Severn. Respondent filed an answer to the
complaint denying the commission of the alleged unfair labor
practices.
The complaint in Case 32–CB–3869 alleges that Respond-
ent violated Section 8(b)(1)(A) of the Act when, on January
8, 1992, it filed internal union charges against Hernandez be-
cause he filed an unfair labor practice charge with the Board
against Respondent, and alleges that in connection with the
internal union charges, further violated Section 8(b)(1)(A) of
the Act, by scheduling a trial, trying, judging, and imposing
discipline on Hernandez because he filed an unfair labor
practice charge with the Board against Respondent. Respond-
ent filed an answer to the complaint denying the commission
of the alleged unfair labor practices.1
On the entire record, and from my observation of the de-
meanor of the witnesses, and having considered the parties’
posthearing briefs, I make the following
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondent Causes the Employer to Hire James
Severn (Case 32–CB–3829)
1. The evidence
Respondent, a labor organization with its office in Stock-
ton, California, represents employees for purposes of collec-
tive bargaining, who perform painting and drywall work for
their employers. Its business representative and financial sec-
retary is George Juelch. He is also Respondent’s hiring hall
dispatcher.
The Employer is a construction industry painting contrac-
tor with its office in San Jose, California. During the time
material, the Employer was performing a painting job on a
site in Tracy, California (the Safeway job or Safeway job-
site). The Employer’s foreman on the Safeway Job was Paul
Rood. He was responsible for, among other things, the hiring
of the painters and drywall workers employed by the Em-
ployer on the Safeway job.
1037PAINTERS LOCAL 1115 (C & O PAINTING)
During the time material, the Employer’s painters and
drywall workers employed within the Respondent’s geo-
graphical jurisdiction, which encompassed the Safeway job-
site, were represented by the Respondent and covered by a
collective-bargaining agreement between the Employer and
the Respondent (the Agreement). The Agreement required
that Respondent operate an exclusive hiring hall for the dis-
patch of employees to the Employer. More specifically, arti-
cle III of the Agreement read, in pertinent part, as follows:
ARTICLE III
HIRING PRACTICES
Section A. Whenever an Employer requires work-
men, he shall notify the office of the Union, either in
person or by telephone, stating the number of workmen
required, the type of work to be performed, the starting
date of the job, and its approximate duration.
Section B. Upon receipt of such notice, the Union
shall use its best efforts to furnish the required number
of qualified and competent workmen. Selection of ap-
plicants for referral to jobs shall be on a non-discrimi-
natory basis and shall not be based on, or in any way
affected to Union membership, by-laws, rules, regula-
tions, constitutional provisions, or any other aspect or
obligation of the Union memberships, policies, or re-
quirements. Such selection will be on the following
basis:
1. The Union shall maintain a list of all workmen
seeking jobs who have been employed on the type of
work and in the territory covered by this Agreement for
a period of at least one (1) year, which list shall be
hereinafter called ‘‘List A.’’ A separate list shall be
maintained of all workmen seeking jobs who do not
meet that requirement, which list shall be hereinafter
called ‘‘List B.’’
2. Workmen’s names shall be entered on said lists in
the order in which they come to the Union’s office
seeking employment.
3. After each workmen’s name there shall be entered
a designation corresponding to the type or types of
work which the workman is qualified to perform. Each
workman, at the time of applying for a job, shall indi-
cate his own qualifications for such type or types of
work, and such indication shall be conclusive unless an
Employer to whom such workman is dispatched reports
to the Union that in his opinion the workman is not
qualified. In such event, before he again will be entitled
to preference hereunder, such workman shall be re-
quired to pass an objective examination given by a
Qualifications Committee. Said Committee shall be se-
lected by the Appropriate Painters Joints [sic] (????)
Labor Management Committee and shall be composed
of an equal number of representatives of the employer
of the Union. Any employee, so rejected, who has
worked on any such type or types of work for a period
of more than one (1) year shall not be required to take
such examination.
4. In dispatching workmen, preference shall be given
to workmen on List A. Within each list, preference
shall be given to those whose designations correspond
to the type of work involved, in the order in which
their names appear on the list. If there are not sufficient
workmen on List A whose designations correspond to
the type of work involved, preference shall be given to
other workmen on said List in the order in which their
names appear, and the same procedure shall be fol-
lowed with List B should the names in List A be ex-
hausted.
5. Whenever an Employer requests a particular work-
man by name, the Union will furnish said workman to
such Employer, if available.
6. A Member will be allowed one (1) turndown for
a job that he is qualified to do. His second turndown
will drop him to the bottom of the list. If a person ac-
cepts a job, and it lasts less than five (5) days, he will
not lose his spot on the out-of-work list. In order to
maintain his spot on the out-of-work list, he must report
to the Union Hall between 8:00 AM and 10:00 AM
Monday mornings. Failure to do so without due cause
will drop him to the bottom of the list.
Section C. Any workman who feels that he has not
been dispatched in accordance with the provisions of
this Article, may appeal to the Qualifications Commit-
tee, and the Committee shall have the power to reverse
any decision of the Union with respect to dispatching.
In any matter as to which the opinion of the Committee
is less an unanimous, a workman dissatisfied with the
opinion may appeal to any impartial umpire. The um-
pire shall be selected by the workman and the Union.
If they cannot agree upon an umpire, he shall be se-
lected by the State Conciliation Service of the Depart-
ment of Industrial Relations of the State of California.
The costs of any arbitration shall be borne equally by
the workman and the Union. The decision of the arbi-
trator shall be final and binding.
Juelch, Respondent’s business representative and hiring
hall dispatcher, is responsible for the dispatch of employees
from Respondent’s hiring hall facility. He testified that the
‘‘hiring practices’’ set forth in article III of the Agreement
are followed by the Respondent in dispatching employees to
the Employer and to other employers who use the hiring hall
facility.
There is nothing in the Agreement’s ‘‘hiring practices’’
which precludes persons registered on the hiring hall’s out-
of-work list from soliciting their own jobs and it is common
practice for registrants to solicit their own jobs, without ob-
jection by Respondent. Occasionally, in connection with the
Safeway Job, after Rood had personally spoken to a reg-
istrant and decided he wanted to hire him, rather than ask
Juelch to refer that registrant, Rood instructed the registrant
to go to the Respondent’s dispatch hall and to represent to
Juelch that Rood had stated he wanted Juelch to refer the
registrant to the Safeway Job. Juelch issued referrals to those
registrants based solely on their representations or after veri-
fying their representations.
James Severn, a member of Respondent, is its recording
secretary and is the son of Respondent’s president, Otto Sev-
ern. On Wednesday, January 15, 1992, while in Respond-
ent’s hiring hall facility performing his duties as recording
secretary, Severn was advised by Juelch that he intended to
drive out to the Safeway Job that day. Severn, a journeyman
painter who was out of work, was registered on Respond-
1038 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ent’s out-of-work list. He asked Juelch if it was okay if he
accompanied him to the Safeway jobsite, explaining he was
out of work and had tried to get on that job a couple of
times before, without success. It is undisputed that Severn’s
object in accompanying Juelch to the Safeway jobsite was to
solicit a job and that Juelch knew this was his intention,
when he agreed to allow Severn on January 15 to accompany
him to the jobsite.
On their arrival at the jobsite on January 15, Severn and
Juelch, before entering the site, had to go into the office of
the superintendent of the jobsite for the purpose of getting
passes to enable them to get past the security gate. Juelch
spoke to the secretary and told her Severn was a member of
Respondent and they had business with Paul Rood, the Em-
ployer’s foreman. The secretary knew that Juelch was the
Respondent’s business representative, and because of this she
issued passes to both him and Severn. They then got back
into Juelch’s car and were allowed to enter the jobsite and
drove to where the Employer was working.
Rood, a witness for the General Counsel, testified about
Juelch’s and Severn’s January 15 visit to the Safeway Job,
as follows: Rood was at work when Juelch and Severn vis-
ited him; Juelch jokingly commented that the work Rood
was personally doing at that time was the type of work usu-
ally performed by an apprentice and they laughed about this;
Juelch stated his reason for visiting the job was to inform
Rood that Martin Luther King’s birthday, Monday, January
20, was a holiday under the Agreement and because of this,
if Rood worked anyone on Friday, January 17, or Monday,
January 20, they would have to be paid at the overtime hour-
ly rate of pay; after discussing this, Rood informed Juelch
he had intended to telephone him because he needed a man
for the next day, Thursday, January 16; at this time Juelch
introduced Severn and informed Rood that Severn was a
journeyman painter and was a good all-around painter who
was looking for work; Severn told Rood he was unavailable
for work on January 16 and would not be available until
Tuesday, January 21, because he was going to Los Angeles
to attend someone’s 50th wedding anniversary; when Severn
and Rood spoke to one another, Juelch remained in the im-
mediate vicinity, within hearing distance, standing approxi-
mately 6 or 7 feet away; on being informed that Severn was
unavailable for work on January 16, Rood again informed
Juelch that he needed a painter for the next day; Juelch indi-
cated he would act on Rood’s request; Juelch and Rood then
discussed, as they most always did when Juelch visited, the
fact that there appeared to be a fair amount of painting work
on the job, and, as he most always did when he visited,
Juelch asked whether Rood was hiring workers to do this
work, and Rood answered he would be hiring workers in the
future as the work materialized; and, this concluded Juelch’s
and Severn’s January 15 visit.
Juelch, a witness for Respondent, did not dispute Rood’s
version of what occurred on January 15, except that Juelch
testified that as soon as Juelch introduced Severn to Rood,
that Juelch left them alone and went to inspect one of the
buildings where painting and drywall work was being per-
formed and remained in that building for approximately 8 to
10 minutes and when he returned to where Severn and Rood
were standing, they had finished their conversation.
Severn, a witness for Respondent, corroborated Juelch’s
above testimony that Juelch was not present when Rood
spoke to Severn, and gave a completely different account of
their conversation, than Rood. On direct examination, Severn
testified he asked Rood if the Employer had any employment
available and Rood told him, ‘‘he was going to be putting
on a couple of more men’’ and asked if Severn could start
work the next day; Severn told him he was not available be-
cause he was scheduled to leave for Los Angeles that day
for a 50th wedding anniversary celebration and when Rood
asked when he would be available for work, Severn replied
he would be available the day after Martin Luther King’s
birthday, Tuesday, January 21, and Rood responded by stat-
ing, ‘‘If he needed any men that he’d call me’’ and stated
he was going to be putting on a couple of men and ‘‘would
probably call for [Severn] next Tuesday or Wednesday.’’
During cross-examination, when asked what Rood said to
him after Juelch left the vicinity, Severn testified, ‘‘He told
me that he was planning to put on some more people and
asked if I could start immediately and I told him that was
difficult for me, like I said before,’’ and further testified that
the only other remark made to him by Rood during this con-
versation was, ‘‘If [Rood] needed me that he’d call the hall.’’
I credit Rood’s above testimony describing Juelch’s and
Severn’s January 15 visit and reject their testimony insofar
as it differs from Rood’s, because Rood was a completely
disinterested witness, who had absolutely no reason to tailor
his testimony to suit either the General Counsel’s or Re-
spondent’s case, and when he gave this testimony his testi-
monial demeanor—the way he spoke, the tone of his voice,
and the way he looked and acted while testifying—led me
to conclude that he was a sincere and conscientious witness,
whereas the testimonial demeanor of both Juelch and Severn
was not good. Also, in view of Rood’s excellent testimonial
demeanor and the straightforward and unhesitant way in
which he gave his testimony, I am persuaded this is not a
case where the passage of time has sufficiently dulled Rood’s
memory, so that despite his obvious sincerity he is an unreli-
able witness.
Juelch and Severn testified that on January 15, after their
visit to the Safeway Job, while in Juelch’s automobile driv-
ing back to Respondent’s office, they spoke about Severn’s
conversation with Rood. Severn testified he told Juelch that
Rood had asked if Severn could go to work for the Employer
the next day and that he had refused the job offer because
of a previous arrangement, but also advised Juelch that Rood
‘‘might call for me.’’ Juelch, when asked to narrate what
Severn told him about his conversation with Rood, testified:
‘‘He kind of liked [Rood’s] attitude, he’d probably like to go
to work for him. And he’d be calling, when he needed men.
He’d be calling for [Severn]. That is what [Severn] told me
that the conversation was about.’’
As I have found, supra, Rood did not expressly or by im-
plication indicate to Severn that when the Employer in the
future needed painters for the Safeway Job that he intended
to call the Respondent’s hiring hall and ask for him by name.
It is for this reason, and because of their poor testimonial de-
meanor, that I reject Severn’s testimony that he told Juelch
that Rood ‘‘might call for me’’ and reject Juelch’s testimony
that Severn told him that Rood had told Severn that when
he needed men he would be calling for Severn. Likewise, I
reject Respondent’s contention that ‘‘as far as the record is
concerned there is nothing to contradict Mr. Severn’s testi-
mony that he left the Tracy jobsite believing that a commit-
1039PAINTERS LOCAL 1115 (C & O PAINTING)
2 Hu is a member of Respondent whose name on January 21 was
on the Respondent’s out-of-work register. Juelch testified Hu was
employed by employers primarily as a shipyard painter. It is undis-
puted, however, that Hu was a journeyman painter who was quali-
fied to do all the work normally performed by a journeyman except
for residential work, which is not the type of work involved on the
Safeway Job.
3 I considered that Wheeler campaigned for union office with
Charging Party Hernandez and represented Hernandez at the trial
held by Respondent concerning the internal union charges filed by
Juelch against Hernandez, and that in view of these circumstances,
it is a fair inference that when Wheeler testified in this proceeding
he was not an unbiased witness, but was probably biased in favor
of the position of Hernandez, who filed the charge in this case.
Nonetheless I credited his testimony because his testimonial de-
meanor was better than Juelch’s.
ment had been made to hire him and that he had relayed that
to Mr. Juelch.’’
On Tuesday, January 21, during the regular Tuesday
morning meeting with the representative of the general con-
tractor for the Safeway Job, Rood was informed that the gen-
eral contractor expected the Employer to finish certain paint-
ing work by a stated date, which meant that Rood would
have to hire two more painters in order to complete the work
by the stated deadline.
On the morning of January 21, after his meeting with the
general contractor’s representative, Rood telephoned Re-
spondent’s hiring hall facility and asked Juelch to dispatch
two painters to the Safeway Job. Rood and Juelch gave con-
flicting testimony about this conversation. Their testimony is
set out and evaluated hereinafter.
Rood testified: he told Juelch he needed two painters for
the following day for the Safeway Job; he stated he would
like Juelch to dispatch one man who had been out to the job-
site several times and who had been recommended to Rood
and whose first name was ‘‘Ron’’; Juelch asked whether
Rood was referring to Ron Wheeler; Rood told him that
Wheeler was the person he was talking about and that be-
sides Wheeler he needed another painter; Juelch stated he
would take care of Rood’s request; and this ended the con-
versation. Rood testified there was no discussion about who
Juelch intended to dispatch as the second painter, and that
on this subject Juelch only said he would take care of Rood’s
request. Rood also testified he did not ask Juelch to dispatch
Severn to the job nor was Severn’s name mentioned by ei-
ther Juelch or Rood.
Juelch testified that when Rood telephoned him on January
21, Rood did not ask for Wheeler by name, first name or last
name, but simply asked that Juelch dispatch two painters to
the Safeway Job. When questioned by the General Counsel
about this conversation, at the start of the hearing, as an ad-
verse witness, Juelch testified he responded to Rood’s re-
quest for two painters by saying to Rood, ‘‘I assume that you
mean the two guys that’s been on the jobsite that has spoken
with you,’’ and Rood answered, ‘‘yeah,’’ and Juelch named
Wheeler and Severn, and Rood responded, ‘‘great send them
out.’’ Later, during the hearing, when questioned by Re-
spondent’s counsel about this conversation, Juelch testified
he replied to Rood’s request for two painters by asking,
‘‘how about the two fellows you’ve already kind of promised
the job to’’ or ‘‘kind of talked to and kind of spoke of put-
ting to work,’’ and named Ron Wheeler and Jim Severn, and
Rood responded by saying, ‘‘that’s fine,’’ and this ended the
conversation.
Juelch at one point in his testimony volunteered that al-
though Rood on January 21, when he asked Juelch to dis-
patch two painters, did not ask for Wheeler by name, that
Rood previously had indicated to Juelch, when they had met
at the jobsite, that he wanted Juelch to dispatch Wheeler to
the job when, in the future, he asked Juelch to dispatch
painters to the job. However, his testimony about what Rood
said to him on the subject during this prior conversation sig-
nificantly contains no mention of Wheeler’s name. He testi-
fied that Rood had told him, ‘‘when I get ready to put some
folks on . . . it’ll probably be the guys that’s been coming
out here to the jobsite. That I had spoken to.’’ Juelch did not
testify that Rood at that time or at any other time named
Wheeler as having been one of the ‘‘guys’’ that had visited
him on the job and there is no credible evidence that Rood,
prior to January 21, ever gave Juelch reason to believe he
desired to hire Wheeler when the need for more painters on
the job materialized.
Ron Wheeler is a member of Respondent, who on several
occasions prior to January 21, personally visited the Safeway
Job and solicited Rood for a job. It is undisputed that on Jan-
uary 21, when Rood telephoned Juelch, Wheeler was in Re-
spondent’s dispatch office and when Juelch answered the
phone Wheeler left the office, but was immediately called
back into the office by Juelch, when he learned Rood was
requesting that Wheeler be dispatched the next day to the
Safeway Job. Wheeler testified that when he returned to the
office he heard Juelch say to whomever he was speaking to
on the telephone, that Wheeler was in the office and asked
if it was okay to dispatch Wheeler to the job with either
‘‘another’’ or ‘‘other’’ painter. Wheeler further testified that
during the period of time he was in the office, while Juelch
was speaking on the telephone, Juelch did not mention Sev-
ern’s name and after Juelch finished talking on the telephone
and had given him a referral slip dispatching him to the
Safeway Job, that Wheeler asked Juelch who else Juelch in-
tended to dispatch to the Safeway Job, and Juelch, without
looking at the out-of-work register, answered he believed the
next person on the out-of-work register was Albert Hu.
Juelch, on the other hand, testified that Wheeler did not ask
him who else was going to be dispatched with him to the
Safeway Job, and also testified that there was no ‘‘discussion
about Albert Hu’’ with Wheeler.2
I credit Rood’s testimony describing his January 21 tele-
phone conversation with Juelch for the same reasons I relied
on previously in this decision to credit his testimony describ-
ing what occurred on January 15, when Juelch and Severn
visited with him at the Safeway Job. In addition, Rood’s tes-
timony that Juelch did not mention Severn’s name was cor-
roborated by the credible testimony of Wheeler that when
Juelch was speaking to Rood, while Wheeler was in Juelch’s
office, Juelch did not mention Severn’s name and that subse-
quently, when Wheeler asked Juelch who, besides Wheeler,
he intended to dispatch to the Safeway Job on January 22,
that Juelch did not mention Severn’s name, but stated he
thought that the next person on the out-of-work list was Al-
bert Hu.3
On January 21, besides issuing a referral slip to Wheeler
authorizing his employment on January 22 by the Employer
on the Safeway Job, Juelch issued a similar referral slip to
Severn. Wheeler and Severn went to the Safeway Job on
1040 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Respondent asserts that this case should be deferred for action
under the hiring hall grievance/arbitration provision of the collective-
bargaining agreement between Respondent and the Employer. I find
that deferral is not appropriate here, where the charges have been
filed by an individual, the interests of the individual are adverse to
those of the Respondent, and the Employer is not a party to the
Board proceeding. Iron Workers Local 377 (M.S.B, Inc.), 299 NLRB
680 fn. 1 (1990). See also Laborers Northern California Council
(Baker Co.), 275 NLRB 278, 287–288 (1985).
5 In analyzing Respondent’s motivation for referring Severn out of
order to the Safeway Job on January 22, which resulted in the loss
of employment for the employee-applicant next in order on the out-
of-work list, I have been guided by the Board’s decision in Wright
Line, 215 NLRB 1083 (1980). See Service Employees Local 9
(American Maintenance), 303 NLRB 735 (1991), and cases cited
therein.
January 22 and were hired by Rood as painters, pursuant to
the referral slips issued by Juelch.
Juelch testified the reason he dispatched Severn to the
Safeway Job on January 22 was that Severn had been re-
quested by Rood by name. He testified Severn would not
have been dispatched on January 22 to the Safeway Job if
Rood, in their January 21 telephone conversation, had not in-
dicated he wanted Severn. Instead, Juelch testified he would
have dispatched the person next eligible for dispatch on Re-
spondent’s out-of-work list, and further testified that in view
of Severn’s position on that list, Severn would not have been
that person.
2. Discussion and conclusions
The complaint, in substance, alleges Respondent violated
Section 8(b)(1)(A) and (2) of the Act when, on January 22,
1992, Respondent’s exclusive hiring hall dispatched James
Severn to the Employer’s Safeway Job, even though another
employee-applicant was entitled to that dispatch under the
terms of Respondent’s collective-bargaining agreement with
the Employer. I find this allegation has merit because the
record establishes that Respondent’s January 22 referral of
Severn was unlawfully motivated and, even if it was not un-
lawfully motivated, Respondent’s referral of Severn violated
the Act, as alleged, because Severn’s referral was an arbi-
trary departure from the contractual hiring practices provision
which affected the employment of another employee. My
basis for these conclusions are as follows.4
1. Juelch, Respondent’s hiring hall dispatcher and its busi-
ness representative, dispatched Severn to the Employer’s
Safeway Job on January 22, even though Severn was not
next in order for referral on the hiring hall’s out-of-work list,
and even though the Employer had not requested him by
name. By referring Severn out of order, even though the Em-
ployer had not requested him by name, Juelch acted in dero-
gation of the explicit and unambiguous hiring procedures
contained in the contract between the Respondent and the
Employer, which obligated Juelch to refer to the Employer’s
Safeway Job on January 22 the applicant next in order on
the out-of-work list, rather than Severn. Juelch, who nor-
mally complied with the contractual hiring hall practices pro-
vision, when referring employee-applicants to employers,
gave a false reason for referring Severn out of order in viola-
tion of the contractual hiring practices provision. For, as dis-
cussed supra, I discredited his testimony that the Employer’s
job foreman requested Severn by name and that because of
this he referred Severn to the Employer on January 22, rather
than the most senior qualified available person on the out-
of-work list.
Also relevant in evaluating Juelch’s motive for referring
Severn out of order, is that Severn, like Juelch, was an offi-
cial of Respondent, its recording secretary, and 1 week prior
to the January 22 referral, Juelch had allowed Severn to ac-
company him to the Employer’s Safeway jobsite for the pur-
pose of soliciting a job with the Employer and introduced
and recommended him to the Employer’s job foreman.
Considering that when Juelch referred Severn out of order
to the Employer’s Safeway Job on January 22 that he devi-
ated from the hiring procedures set forth in contractual hiring
practices provision, which he normally followed; considering
the reason advanced by Juelch for referring Severn out of
order was false; considering Severn is an officer of Respond-
ent; and, considering that 1 week before Juelch’s out-of-order
referral of Severn, he allowed Severn to accompany him to
the Employer’s Safeway jobsite for the purpose of soliciting
a job with the Employer and introduced and recommended
him to the Employer’s job foreman; these circumstances, in
their totality, establish that Severn’s position with Respond-
ent was a motivating factor in Juelch’s decision to refer him
out of order to the Safeway Job on January 22.5 Since Re-
spondent failed to establish that even absent Severn’s posi-
tion with the Respondent, that Respondent would have re-
ferred him out of order to the Safeway Job, at the expense
of another employee-applicant, I further find that in view of
the above circumstances, the General Counsel has established
Respondent violated Section 8(b)(1)(A) and (2) of the Act by
referring Severn out of order on January 22 to the Employ-
er’s Safeway Job because Severn occupied the position of
Respondent’s recording secretary.
2. Alternatively, even if Severn’s out-of-order referral by
Respondent to the Employer’s Safeway Job was not unlaw-
fully motivated, I find it constituted an arbitrary departure by
Respondent from the established contractual hiring proce-
dures which Respondent was legally obligated to follow, and
that by deviating from those procedures, when it referred
Severn to the Employer’s Safeway Job out of order, Re-
spondent breached its duty of fair representation in violation
of Section 8(b)(1)(A) and (2) of the Act.
The Board has held that a union, like Respondent, which
operates an exclusive hiring hall must represent all individ-
uals who seek to use the hall fairly and impartially. The
labor organization conducting such an operation has a duty
to conform with and apply lawful contractual standards in
administering the referral system. As the Board stated in Op-
erating Engineers Local 406, 262 NLRB 5051 (1982), enfd.
701 F.2d 504 (5th Cir. 1983):
[A]ny departure from established hiring hall procedures
which results in a denial of employment to an applicant
falls within that class of discrimination which inher-
ently encourages union membership, breaches the duty
of representation owed to all hiring hall users, and vio-
lates Section 8(b)(1)(A) and (2), unless the union dem-
onstrates that its interference with employment was pur-
suant to a valid union security clause or was necessary
to the effective performance of its representative func-
tion.
1041PAINTERS LOCAL 1115 (C & O PAINTING)
6 As discussed supra, I discredited Juelch’s testimony that the Em-
ployer’s job foreman requested Severn by name and that because of
this Juelch referred Severn to the Employer on January 22, rather
than giving preference to the applicants registered on the out-of-
work list in the order in which their names appeared on the list.
Accord: Iron Workers Local 118 (California Erectors), 309
NLRB 808 (1992).
As described supra, Respondent’s contract with the Em-
ployer contains explicit and unambiguous standards for dis-
patching job applicants. In this regard, article III requires Re-
spondent to register job applicants on an out-of-work list,
and then refer the applicants on the out-of-work list, on a
first-in, first-out basis, except in those instances where the
Employer requests a particular applicant by name, then Re-
spondent must furnish the applicant to the Employer, if avail-
able.
In spite of these clear contractual standards, Respondent’s
business representative Juelch, referred Severn to the Em-
ployer’s Safeway Job on January 22 , even though the Em-
ployer had not asked for him by name and even though there
were other qualified applicants ahead of him on the out-of-
work list. In this last respect, Severn’s out-of-order referral
on January 22 affected the employment of the applicant
ahead of him on the out-of-work list, who would have been
referred to the Employer’s Safeway Job, if Juelch had com-
plied with the contractual hiring procedure. In other words,
the above circumstances demonstrate that the General Coun-
sel has made a prima facie showing that Respondent unlaw-
fully departed from its established hiring hall rules by refer-
ring Severn out of order to the Employer’s Safeway Job on
January 22 and that its conduct affected the employment of
an applicant ahead of him on the out-of-work list, who
would have been referred on January 22 to the Safeway Job,
instead of Severn, during the normal course of business.
Since Juelch’s asserted reason for referring Severn to the
Employer’s Safeway Job out of order has been discredited,
the General Counsel’s prima facie case stands unrebutted.6
Therefore, I find that in referring Severn to the Employer’s
Safeway Job on January 22, in derogation of the established
hiring hall rules, Respondent breached its duty of fair rep-
resentation in violation of Section 8(b)(2) and (1)(A) of the
Act.
B. Respondent Disciplines Hernandez for Filing an
Unfair Labor Practice Charge Against Respondent
(Case 32–CB–3869)
1. The evidence
On October 21, 1991, Charging Party Hernandez, a mem-
ber of Respondent, filed an unfair labor practice charge with
the Board’s Regional Office, which was docketed as Case
32–CB–3754, alleging Respondent violated the Act by deny-
ing Hernandez, ‘‘the opportunity to be dispatched through its
hiring hall because of his opposition to incumbent Union of-
ficers.’’
On December 11, 1991, the Regional Director of the
Board’s Regional Office notified Hernandez and Respondent
that he was refusing to issue a complaint in the matter of
Hernandez’ above-described unfair labor practice charge be-
cause his investigation did not establish that Respondent
failed to dispatch Hernandez in retaliation for his running
against the current union officers. Hernandez did not appeal
the Regional Director’s dismissal of his charge.
On or about January 8, 1992, Respondent, acting through
George Juelch, its business representative, filed internal
union charges against Hernandez. The internal union charges
filed by Juelch allege, in substance, that by filing his unfair
labor practice charge in Case 32–CB–3754 against Respond-
ent, Hernandez violated Respondent’s bylaws and several
sections of the constitution of Respondent’s International
Union, because: the unfair labor practice charge was not filed
by Hernandez in good faith; by filing the unfair labor prac-
tice charge, Hernandez did not follow proper procedures for
exhausting his remedies within the Union; and, by filing the
unfair labor practice charge, Hernandez interfered with the
performance of the duties of Respondent’s officers and rep-
resentatives.
On or about February 21, 1992, Respondent, acting
through its recording secretary, James Severn, by letter, noti-
fied Hernandez that a trial board of Respondent would hold
a hearing on the above-described internal union charges on
March 10, 1992.
On March 10, 1992, a trial board of the Respondent heard
the internal union charges filed by Juelch against Hernandez
and found Hernandez guilty ‘‘as charged,’’ and disciplined
Hernandez, as follows: fined him $200 of which $100 was
held in abeyance; and, disqualified him for nomination for
any office or committee of Respondent for a period of 3
years from March 10, 1992.
Juelch, the person who filed the internal union charges
against Hernandez, presented them to the trial board. The
minutes of the trial (G.C. Exh. 6) reveal that, in presenting
the charges to the trial board, Juelch stated: ‘‘These charges
were not filed for Brother Nick Hernandez going to the
NLRB but for filing charges not preferred in good faith, with
no merit and for not following proper procedure as per Inter-
national Brotherhood Constitution and Local No. 1115 By-
Laws.’’ However, there is no evidence whatsoever that the
unfair labor practice charge filed by Hernandez against Re-
spondent in Case 32–CB–3754 was not filed by him in good
faith.
On or about March 18, 1992, Respondent, acting through
its president, Otto Severn, by letter, notified Hernandez of
the findings and discipline of the trial board, described
above, and of his right to appeal those findings and dis-
cipline to the Respondent’s parent organization, the Inter-
national Brotherhood of Painters and Allied Trades.
Hernandez filed such an appeal. In addition, on March 31,
1992, he filed the unfair labor practice charge in this case.
The complaint in this case issued May 8, 1992.
By letter to Hernandez and Respondent dated August 14,
1992, the International Union’s general executive board
through the International Union’s general secretary-treasurer
notified them that the decision of the Respondent’s trial
board in the matter of Juelch’s charges against Hernandez
had been reversed. The August 14 letter reads as follows:
During its August 1992 meeting, the General Execu-
tive Board considered the appeal of Brother Nick Her-
nandez of Local Union 115, Stockton, California, from
the action of the Trial Board of that Local Union fining
him $200.00, $100.00 to be held in abeyance, and pro-
1042 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 As I indicated during the hearing, I am of the view that Respond-
ent’s above-described defense to the unfair labor practice, amounts
to a contention that Respondent’s rescission of the unlawful dis-
cipline constitutes a repudiation of the unlawful conduct sufficient
to remedy the violation and makes it unnecessary for the Board to
issue a remedial order. For the reasons set forth above, and guided
by the standards for an appropriate repudiation of unfair labor prac-
tices set forth in Passavant Memorial Hospital, 237 NLRB 138
(1978), I conclude Respondent’s rescission of Hernandez’ discipline
was ineffective to relieve Respondent of liability and to obviate the
need for further remedial action.
hibiting him from running for office or a committee for
three years.
As the trial board minutes make clear, the basis for
the union charges was an unfair labor practice charge
filed by the charged party against the Local Union with
the National Labor Relations Board. The decision by
the Trial Board was understandable, as it is always the
preferred Union policy to keep complaints and protests
inside the organization, utilizing procedures provided by
the General Constitution and Local Union bylaws.
However, it is against public policy and the National
Labor Relations Act to discipline a member for filing
unfair labor practice charges with the National Labor
Relations Board. On that ground, and to assist the
Local Union to avoid legal difficulties, the General Ex-
ecutive Board reverses the decision of the Trial Board.
Any appeal to the General Convention from this de-
cision must be filed within 30 days pursuant to Section
273 of the Constitution.
Respondent did not appeal from the decision of the Inter-
national Union’s general executive board. It rescinded the
discipline imposed on Hernandez by its trial committee and
reimbursed him for the $100 fine he had paid to Respondent.
The record establishes that the internal union charges filed
against Hernandez by Juelch were read to Respondent’s
members at a membership meeting and that the trial commit-
tee’s decision which issued in connection with those charges
were likewise read to the members at a membership meeting.
However, as of the date of the hearing in this case, January
14, 1993, the Respondent’s members had not been informed
by Respondent that the International Union’s general execu-
tive board had reversed the trial board’s decision or that Re-
spondent, in conformance with the instruction of the Inter-
national Union’s general executive board, had rescinded the
discipline imposed on Hernandez by the trial board.
2. Discussion and conclusions
A union violates Section 8(b)(1)(A) of the Act by taking
coercive action against a member for filing an unfair labor
practice charge against it with the Board without first having
exhausted his intraunion remedies. NLRB v. Shipbuilders,
391 U.S. 418 (1968). In Shipbuilders the Supreme Court sus-
tained the Board’s finding that a union’s expulsion of an em-
ployee-member for filing an unfair labor practice charge
against the union was coercive under Section 8(b)(1)(A).
Other types of coercive conduct interdicted by Section
8(b)(1)(A), include the filing of internal union charges
against an employee-member for filing an unfair labor prac-
tice charge with the Board against a union, and the schedul-
ing of a trial, the trial itself, and the discipline imposed on
the employee-member in connection with the filing of those
internal union charges. See generally Laborers Northern
California Council (Baker Co.), supra, and cases cited there.
Here, the uncontradicted evidence, as set forth in detail
supra, establishes that on or about January 8, 1992, Respond-
ent’s business representative Juelch, on Respondent’s behalf,
filed internal union charges against employee-member Her-
nandez because he had filed an unfair labor practice charge
with the Board against Respondent without first having ex-
hausted his intraunion remedies, and further establishes that
in connection with the aforesaid internal union charges, Re-
spondent scheduled a trial, tried, judged, and imposed dis-
cipline on Hernandez because he had filed an unfair labor
practice charge with the Board against Respondent without
first having exhausted his intraunion remedies.
I find, based on the principles set forth above, that Re-
spondent violated Section 8(b)(1)(A) of the Act by filing in-
ternal union charges against Hernandez because he had filed
an unfair labor practice charge with the Board against it
without first having exhausted his intraunion remedies, and
by scheduling a trial, trying, judging, and imposing discipline
on Hernandez because he had filed an unfair labor practice
charge against Respondent with the Board without first hav-
ing exhausted his intraunion remedies.
Respondent’s defense is that it would not effectuate the
policies of the Act for the Board to issue a remedial order
because Charging Party Hernandez has taken advantage of
the intraunion procedure available for him to appeal Re-
spondent’s discipline of him and has successfully used this
procedure to have his discipline rescinded. Assuming that
under certain circumstances, it would effectuate the policies
of the Act for the Board, in a case such as this involving
the unlawful discipline of an employee-member by a union,
to defer to the union’s intraunion procedures, when the em-
ployee-member has successfully used those procedures to
have his discipline rescinded, this is not such a case. For,
while the International Union and Respondent have notified
Hernandez that his discipline has been rescinded, and the
International Union has informed Hernandez that ‘‘it is
against public policy and the National Labor Relations Act
to discipline a member for filing unfair labor practices with
the National Labor Relations Board,’’ neither Respondent nor
its International Union has made the requisite assurances to
Hernandez or to Respondent’s other members regarding their
exercise of the Section 7 right involved. In this last regard,
as I have found supra, the information that Respondent had
charged, tried, and disciplined Hernandez for having filed an
unfair labor practice charge with the Board against Respond-
ent was disseminated by Respondent to its members, yet its
members have not been notified that Hernandez’ discipline
has been rescinded and have not been notified that Respond-
ent repudiates its unlawful conduct and will not engage in
such conduct in the future. It is for these reasons, and be-
cause of the untimeliness of Respondent’s rescission of Her-
nandez’ discipline coming more than 4-1/2 months after Her-
nandez filed the charge in this case and more than 3 months
after the issuance of the complaint in this case, that I reject
Respondent’s contention that since it has already rescinded
the unlawful discipline imposed on Hernandez that this was
sufficient to remedy Respondent’s unfair labor practice.7
1043PAINTERS LOCAL 1115 (C & O PAINTING)
8 Respondent’s contention that ‘‘[t]here is no evidence that anyone
other than Mr. Severn would have been referred,’’ has no merit. As
I have found supra, the Employer’s Safeway Job foreman Rood, on
January 21 requested Juelch to refer two painters to the job on Janu-
ary 22 and called for one of the two by name (Wheeler), but did
not request a particular painter by name to fill the second job open-
ing. Therefore, absent Juelch’s unlawful out-of-order referral of Sev-
ern to fill that opening, it is clear that pursuant to the established
contractual hiring hall rules, which he usually followed, that Juelch
would have complied with Rood’s request for an unnamed painter
by referring the next qualified available registrant whose turn it was
to be referred from the out-of-work list.
9 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.
CONCLUSIONS OF LAW
1. By referring James Severn to the Employer’s Safeway
Job on January 22, 1992, ahead of other employee-applicants
registered on the Respondent’s out-of-work list, because Sev-
ern was an officer of the Respondent and in derogation of
the hiring practices provision of the Respondent’s collective-
bargaining agreement with the Employer, Respondent vio-
lated Section 8(b)(1)(A) and (2) of the Act.
2. By filing internal union charges against employee-mem-
ber Nick Hernandez on or about January 8, 1992, and by
scheduling a trial, trying, and disciplining him in connection
with those charges, because he filed an unfair labor practice
charge with the Board against Respondent, Respondent vio-
lated Section 8(b)(1)(A) of the Act.
THE REMEDY
Having found that Respondent has engaged in the afore-
said unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
which will effectuate the purposes of the Act.
Having found that Respondent violated the Act by unlaw-
fully referring James Severn to the Employer’s Safeway Job
on January 22, 1992, ahead of other employee-applicants
registered on Respondent’s out-of-work list, because Severn
was an officer of the Respondent and in derogation of the
hiring practices provision contained in Respondent’s collec-
tive-bargaining agreement with the Employer, and having
found that absent Respondent’s unlawful referral of Severn
that Respondent would have referred another employee-appli-
cant registered on its out-of-work list to the Employer’s
Safeway Job on January 22, 1992, instead of Severn,8 I shall
recommend that this registrant, whose identity shall be deter-
mined during the compliance stage of this proceeding, be re-
imbursed for any loss of earnings and benefits suffered as the
result of the Respondent’s unlawful referral of Severn. Back-
pay 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).
To remedy Respondent’s unlawful out-of-order referral of
Severn, the General Counsel seeks an order requiring Re-
spondent, among other things, to: (1) Keep and retain for a
period of 2 years from the date of this decision permanent
written records of its hiring and referral operations which
will be adequate to disclose fully the basis on which each
referral is made and, on the request of the Regional Director
or his agents, make available for inspection, at all reasonable
times, any records relating in any way to the hiring and re-
ferral system; and (2) place the referral register, for a period
of 2 years, in a convenient place in the hiring hall for easy
access and inspection by work applicants, as a matter of
right, on the completion of each day’s entries in such reg-
isters. I considered the General Counsel’s arguments raised
in support of this remedy and I am of the view that it is not
called for by the circumstances of this case. There is no evi-
dence that when it unlawfully referred Severn out of order
to the Employer’s Safeway Job on January 22, 1992, that Re-
spondent was acting pursuant to a policy of referring hiring
hall registrants out of order, in derogation of the established
hiring hall rules, or was acting pursuant to a policy of grant-
ing preference to hiring hall registrants who are officials of
Respondent. Insofar as this record is concerned, all that is in-
volved in this case is a single instance of an illegal out-of-
order referral, which was not part of a more widespread pol-
icy. Under the circumstances, the remedy requested by the
General Counsel is not warranted.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended9
ORDER
The Respondent, International Brotherhood of Painters and
Allied Trades, Painters Local Union No. 1115, AFL–CIO,
Stockton, California, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Failing and refusing to refer applicants for employment
registered on the out-of-work list maintained by Respond-
ent’s exclusive hiring hall, in accordance with its established
hiring hall practices and procedures.
(b) Giving preference to applicants who occupy positions
with Respondent, because they occupy positions with Re-
spondent when, in the operation of its exclusive hiring hall,
it refers applicants to jobs.
(c) Filing internal union charges against employee-mem-
bers for filing unfair labor practice charges against Respond-
ent with the Board and from scheduling for trial, trying,
judging, and disciplining employee-members for filing unfair
labor practice charges against Respondent with the Board.
(d) In any like or related manner restraining or coercing
employees, members, or job applicants, 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 whole the employee-applicant who would have
been referred by Respondent to the Employer’s Safeway Job
on January 22, 1992, for the loss of earnings and benefits
suffered as the result of the Respondent’s unlawful referral
of James Severn to that job, with backpay to be computed
in the manner set forth in the remedy section of this deci-
sion.
(b) Rescind the discipline Respondent imposed on Nick
Hernandez for filing an unfair labor practice charge against
Respondent with the Board and remove from its files any
reference to that discipline and notify Hernandez, in writing,
that it has done so and will not use this discipline, or his fil-
1044 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 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.’’
ing of the unfair labor practice charge, against him in any
way.
(c) Post at its business office, hiring hall, and meeting
places, or any places where it customarily posts notices to
its members copies of the attached notice marked ‘‘Appen-
dix.’’10 Copies of the notice, on forms provided by the Re-
gional Director for Region 32, after being signed by the Re-
spondent’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 employees are customarily
posted. Reasonable steps shall be taken by Respondent to en-
sure that the notices are not altered, defaced, or covered by
any other material.
(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.
(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 fail and refuse to refer applicants for em-
ployment registered on our exclusive hiring hall’s out-of-
work list, in accordance with our established hiring hall prac-
tices and procedures.
WE WILL NOT give preference to applicants who occupy
a position in this Union because they occupy such a position,
when, in the operation of our exclusive hiring hall we refer
applicants to jobs.
WE WILL NOT file internal union charges against our em-
ployee-members for filing an unfair labor practice charge
against us with the National Labor Relations Board and WE
WILL NOT schedule for trial, try, judge, or discipline our em-
ployee-members for filing an unfair labor practice charge
against us with the National Labor Relations Board.
WE WILL NOT in any like or related manner restrain or co-
erce employees, members, or job applicants, in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL make whole the employee-applicant who would
have been referred by us to C & O Painting’s Safeway Job
in Tracy, California, on January 22, 1992, for the loss of
earnings and benefits suffered as the result of our unlawful
referral of James Severn to that job, with interest.
WE WILL rescind the discipline we imposed on Nick Her-
nandez for filing an unfair labor practice charge against us
with the National Labor Relations Board and remove from
our files any reference of that discipline and notify Hernan-
dez, in writing, that we have done so and that we will not
use this discipline, or his filing of the unfair labor practice
charge, against him in any way.
INTERNATIONAL BROTHERHOOD OF PAINTERS
AND ALLIED TRADES, PAINTERS LOCAL
UNION NO. 1115, AFL–CIO