Plumbers & Steamfitters Local Union 60

National Labor Relations Board - Board Decisions

Jul 31, 1970

184 N.L.R.B. 732 (N.L.R.B. 1970)

732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plumbers & Steamfitters Local Union No. 60 of the
United Association of Journeymen and Ap-
prentices of the Plumbing and Pipe Fitting Indus-
try of the United States and Canada , AFL-CIO
(Specialty Contractors, Inc.) and Billy W . McLel-
land
Plumbers & Steamfitters Local Union No . 60 of the
United Association of Journeymen and Ap-
prentices of the Plumbing and Pipe Fitting Indus-
try of the United States and Canada , AFL-CIO
(Specialty Contractors , Inc.; Mechanical Services
Company, Inc.) and Calvin Beals. Cases
15-CB-1025 and 15-CB-1034
July 31, 1970
DECISION AND ORDER
BY MEMBERS MCCULLOCH , BROWN , AND JENKINS
On April 3, 1970, Trial Examiner John F. Funke
issued his Decision in the above-entitled
proceedings, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. He also found that the Respondent had not
engaged in certain other unfair labor practices, and
recommended that the complaints as to all allega-
tions not specifically found to be in violation of the
National Labor Relations Act, as amended, be
dismissed. Thereafter, the General Counsel and the
Respondent filed exceptions to the Trial Examiner's
Decision, together with supporting briefs.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby - affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner to the extent consistent
herewith.'
1. In the complaint issued in Case 15-CB-1025,
the General Counsel alleges that "Respondent at-
tempted to cause, and did cause, Specialty to
discharge and refuse to reinstate or reemploy Billy
' At various places in his Decision , the Trial Examiner inadvertently
refers to Charging Party McLelland as McClelland or McLennan The sub-
stitution of the correct name is hereby made wherever the error occurs
W. McLelland, and thereafter failed and refused
and continues to fail and refuse to refer him for em-
ployment with Specialty ... in violation of Section
8(b)(1)(A) and (2) ... of the Act." The Trial Ex-
aminer found, and we agree, that the Respondent,
by causing Specialty to lay off employee McLelland
on August 4, 1969, violated Section 8(b)(1)(A)
and (2) of the Act. The General Counsel excepts to
the limited remedy for this violation recommended
by the Trial Examiner, and we find merit in the ex-
ception.
Upon Specialty's execution of Respondent's col-
lective-bargaining agreement under threat of strike
on August 4, Respondent's representatives required
Specialty to close the jobsite, discharge its non-
union employees, and "start over like a brand new
job," hiring through the contract hiring hall referral
procedures. Respondent rebuffed Specialty's
request to retain incumbent employees as permit
men with the advice not to ask for any favors, and
promised that the business agent would visit the
jobsite sometime later "to straighten out" the per-
mit situation. McLelland, an affected nonunion
plumber, was informed of this and thereafter in his
efforts to obtain restoration to his job, repeatedly
checked with Specialty on whether the purpose of
such visit had been accomplished. The promised
visit was never made. However, work was resumed
when the Respondent staffed the project with refer-
rals from the hiring hall on August 11, 1969. The
Trial Examiner's proposed Order terminating
Respondent's backpay liability on August 11, 1969,
is based on the premise that the violation ceased
when Respondent referred applicants for employ-
ment to Specialty apparently on the assumption
that had McLelland been registered with the hiring
hall he would have been referred. Such an assump-
tion is unwarranted. Having caused the unlawful
discrimination by, inter alia, refusing to permit
McLelland to continue in his job as a permit man
under the newly executed contract, Respondent
caused Specialty to discharge and refuse to rein-
state McLelland as alleged in the complaint. It can-
not thereafter use the contract referral procedure
as a means of avoiding liability for the discrimina-
tion. Absent an actual valid referral of McLelland
to Specialty or his reemployment, the discriminato-
ry effect of Respondent's unlawful conduct con-
tinues until such time as Respondent notifies Spe-
cialty and McLelland that it has no objection to the
reinstatement of McLelland to the job it refused to
allow him to continue as a permit man under the
184 NLRB No. 79
PLUMBERS & STEAMFITTERS LOCAL UNION 60 733
contract and thereby unlawfully caused him to
lose.2 Accordingly, we shall order the Respondent
to reimburse McLelland in the manner set forth
below in "The Remedy" section of this Decision.
2. In the complaint in Case 15-CB-1034 the
General Counsel alleges that Respondent violated
Section 8(b)(1)(A) and (2) of the Act by dis-
criminatorily refusing on October 17, 20, and 21,
1969, to refer the two Beals brothers from its hiring
hall to employment at Specialty. The Trial Ex-
aminer recommended that this allegation be
dismissed , reasoning that Respondent was not
obliged to call list II men (who were "permit men")
on Friday, October 17, after having exhausted list I
("book men") available for referral on that day,
because the work was for the following Monday,
October 20, and the referrals were not required to
be made until then. We disagree. The record
clearly shows that, before 8 a.m. October 17, Spe-
cialty phoned Respondent to request nine plum-
bers; that the men requested were to report for
work on Monday, October 20; that under Respon-
dent's written referral procedure at its hiring hall,
jobs are to be "called out" between 8 and 9 a.m.
(as they were on October 17); and that Respon-
dent's contract with Specialty as relevant here pro-
vides that employees shall report for work at the
jobsite at 8 a.m. Inasmuch as Respondent's hiring
hall at New Orleans is a distance of some 50 miles
from Specialty's Houma jobsite, an applicant could
not have been referred from the hall and still have
reported to work the same day at the time specified
in the contract. In these circumstances we find,
contrary to the Trial Examiner, that all nine refer-
rals requested before 8 a.m. were to have been
made Friday, October 17, for 8 a.m. work Monday;
that Respondent was therefore under its own
procedure required to continue calling men from
list II, after having exhausted list I , on both October
17 and 20; and that its "holding back" positions for
list I men, ostensibly on the basis of the seniority
preference reflected in the hiring procedures, was a
pretext to discriminate against nonmembers who
made up list II. We find, accordingly, that by refus-
ing on October 17, 20, and 21 to refer Calvin and
Merlin Beals for employment at Specialty, Respon-
dent violated Section 8(b)(1)(A) and (2) of the
Act.
3. The Trial Examiner also found that Respon-
dent did not violate Section 8(b)(1)(A) and (2)
when it refused to refer the Beals brothers to
Mechanical on November 6, 1969. We find merit in
the General Counsel's exception to this conclusion.
The Beals brothers filed an unfair labor practice
charge against Respondent on October 17. On the
morning of November 6, they appeared at Respon-
dent's hiring hall and signed list II , then stepped
across the street for coffee. Meanwhile, before they
returned to the hall, Respondent's business agent,
Fink, called jobs for list II men . Although advised at
the time that the Beals were just across the street,
and although he still had two job requests unfilled,
Fink refused to let a volunteer step outside to get
the brothers, relying on the provision of the referral
procedure that job applicants be "in" the hall to
receive a work referral. The record shows, how-
ever, that Fink recently had disregarded this very
provision when he told someone in the hall to step
outside to get an applicant, whose name was then
recalled and who was issued a referral. It is plain
that this disparate treatment accorded the Bealses,
who had just filed charges against Respondent with
the Board, was tainted by an unlawful motive, and
violated Section 8(b)(1)(A) and (2) of the Act.
The Remedy
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order it to
cease and desist therefrom and take certain affir-
mative action designed to effectuate the policies of
the Act. Accordingly, as we have found that
Respondent caused Specialty to lay off and deny
employment to Billy McLelland because he was not
a member of Respondent , we shall order that
Respondent notify Specialty in writing , and furnish
a copy to McLelland, that it has no objection to the
employment of McLelland and accedes to his rein-
statement by Specialty. Respondent shall make
McLelland whole for any loss of pay he may have
suffered by reason of the discrimination practiced
against him , by payment to him of a sum of money
equal to that he normally would have earned as
wages from August 4, 1969, when the discrimina-
tion against him resulted in his loss of work, until is-
suance of the above-mentioned notification, less his
net earnings.
We have also found that on several occasions
beginning on October 17, 1969, the two Beals
brothers were denied referrals for employment
when work was available and when other plumbers
were referred. Inasmuch as this is the first specific
date that discrimination against the Beals can
definitely be found to have occurred, it will be or-
dered that Respondent make whole Calvin Beals
and Merlin Beals from October 17, 1969, for any
loss of earnings suffered by each of them as a result
= In view of our holding herein , we find it unnecessary to pass on, and do
not adopt , the Trial Examiner 's findings or recommended dismissal of the
allegations that Respondent also violated Section 8(b)( 1)(A) and (2) by
failing and refusing to refer McLelland to Specialty after August 4, 1969,
based on his several contacts with persons handling referrals at the hiring
hall
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the discrimination practiced against them. Such
payment shall be equal to the amount of wages they
would have earned but for the discrimination prac-
ticed against them by Respondent. Backpay of each
discriminatee shall be computed in the manner set
forth in F. W. Woolworth Company, 90 NLRB 289,
together with interest at a rate of 6 percent per
annum as provided in Isis Plumbing & Heating Co.,
138 NLRB 716.
CONCLUSIONS OF LAW
1. Specialty Contractors , Inc., Mechanical Ser-
vices Company, Inc., and Hooker Chemical Cor-
poration , are employers engaged in commerce
within the meaning of Section 2(6) and ( 7) of the
Act.
2. The Respondent is a labor organization within
the meaning of Section 2(5) of the Act.
3. By causing Specialty to lay off Billy McLel-
land and to refuse to reinstate or rehire him on Au-
gust 4 , 1969, in violation of Section 8(a)(3) of the
Act, Respondent violated Section 8(b)(2) and
(1)(A) of the Act.
4. By discriminatorily refusing to refer Calvin
Beals and Merlin Beals for employment at Specialty
on October 17, 20, and 21 , 1969, Respondent vio-
lated Section 8(b)(2) and (1)(A) of the Act.
5. By discriminatorily refusing to refer Calvin
Beals and Merlin Beals for employment at
Mechanical on November 6, 1969 , Respondent vio-
lated Section 8(b)(2) and ( 1)(A) of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2 ( 6) and ( 7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respon-
dent , Plumbers & Steamfitters Local Union No. 60
of the United Association of Journeymen and Ap-
prentices of the Plumbing and Pipe Fitting Industry
of the United States and Canada, AFL-CIO, New
Orleans, Louisiana , its officers , agents, and
representatives , shall:
1. Cease and desist from:
(a) Causing or attempting to cause Specialty
Contractors , Inc., to lay off Billy McLelland and to
refuse to rehire or reinstate him, or any other em-
ployee, to encourage union membership in viola-
tion of Section 8(a)(3) of the Act.
(b) Discriminating in the hire and tenure of Cal-
vin Beals or Merlin Beals by failing and refusing to
refer them to work by reason of their nonmember-
ship in Respondent Union.
(c) In any like or related manner restraining or
coercing employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which
the Board finds necessary to effectuate the pur-
poses of the Act:
(a) Make Billy McLelland , Calvin Beals, and
Merlin Beals whole for any loss of pay they suffered
as a result of the discrimination against them, in the
manner set forth in the section of this Decision en-
titled "The Remedy."
(b) Notify Specialty Contractors , Inc., in writing,
with a copy to Billy McLelland , that Respondent
has no objection to the employment of McLelland
and accedes to his reinstatement by Specialty.
(c) Notify Specialty Contractors , Inc., and
Mechanical Services Company, Inc., and mail a
copy of each notice to Calvin Beals and Merlin
Beals, that these men will have full use of the hiring
hall facilities without discrimination in connection
with referrals for employment.
(d) Preserve and, upon request , make available
to the Board or its agents , for examination and
copying, all payroll records, social security payment
records, timecards , personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
recommended Order.
(e) Post in conspicuous places at its offices,
meeting halls, and hiring hall, including all places
where notices to employees , applicants for referral,
and members are customarily posted , copies of the
attached notice marked "Appendix ." 3 Copies of
said notice , on forms provided by the Regional
Director for Region 15, after being duly signed by
Respondent 's representative , shall be posted by it
immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where
notices to members are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered , defaced, or
covered by any other material.
(f) Notify the Regional Director for Region 15,
in writing , within 10 days from the date of this
Order , what steps have been taken to comply
herewith.
' In the event that the Board 's 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 be changed to
read "Posted Pursuant to a Judgment of the United States Court of
Appeals Enforcing an Order of the National Labor Relations Board "
PLUMBERS & STEAMFITTERS LOCAL UNION 60 735
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered , defaced , or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board 's Office, T6024 Federal Building ( Loyola),
701 Loyola Avenue, New Orleans , Louisiana
70113, Telephone 504-527-6361.
TRIAL EXAMINER'S DECISION
WE WILL NOT cause Specialty Contractors,
Inc., to lay off or discharge and to refuse to
reinstate or rehire Billy McLelland or any
other employee because he is not a member of
our Union.
WE WILL NOT discriminate in the hire and
tenure of Calvin Beals or Merlin Beals by fail-
ing and refusing to refer them to work by
reason of their lack of membership in the
Union.
WE WILL NOT , in any similar manner,
restrain or coerce employees in their legal right
to join , or-if they choose-not to join the
Union.
WE WILL make Billy McLelland , Calvin
Beals, and Merlin Beals whole for any loss of
pay they suffered as a result of the discrimina-
tion practiced against them.
WE WILL refer Calvin Beals and Merlin Beals
for employment without discrimination based
on their lack of membership in the Union.
WE WILL notify Specialty Contractors, Inc.,
that we have no objection to their hiring Billy
McLelland and also notify Specialty and
Mechanical Services Company, Inc., that Cal-
vin Beals and Merlin Beals will have full use of
our hiring hall without discrimination based on
their lack of membership in the Union.
PLUMBERS &
STEAMFITTERS LOCAL
UNION No . 60 OF THE
UNITED ASSOCIATION OF
JOURNEYMEN AND
APPRENTICES OF THE
PLUMBING AND PIPE
FITTING INDUSTRY OF THE
UNITED STATES AND
CANADA, AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
STATEMENT OF THE CASE
JOHN F . FUNKE , Trial Examiner : Upon a charge
in Case 15-CB-1025 filed September 15, 1969, by
Billy W. McClelland , an individual , against Plum-
bers & Steamfitters Local Union No. 60 of the
United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the
United States and Canada , AFL-CIO , herein the
Respondent , and upon a charge and an amended
charge in Case 15-CB-1034 , filed October 17 and
December 30, 1969 , respectively , by Calvin Beals,
an individual , against Respondent , the General
Counsel filed complaints alleging Respondent vio-
lated Section 8(b)(1)(A) and (2) of the Act. The
answers of the Respondent denied the commission
of any unfair labor practices.
On January 7, 1970, the General Counsel issued
an order consolidating said case and rescheduling
the hearing in Case 15-CB-1025. The cases, with
all parties represented , were heard before me at
New Orleans , Louisiana , on February 17 and 18,
1970. At the conclusion of the hearing, the parties
were given leave to submit briefs and briefs were
received on March 19, 1970.
Upon the entire record in this case and from my
observation of the witnesses while testifying, I make
the following:
FINDINGS AND CONCLUSIONS
I. THE COMPANIES INVOLVED
Specialty Contractors , Inc., herein Specialty, is
an Arkansas corporation having its principal place
of business at El Dorado , Arkansas, where it is en-
gaged in the mechanical construction business in
several States, including the State of Louisiana. It is
engaged in furnishing , pursuant to a $2 million sub-
contract with Alodex Corporation, plumbing fix-
tures, pipings, etc ., for Alodex at Houma, Loui-
siana . During the past 12 months, Specialty per-
formed services valued in excess of $50,000 for en-
terprises engaged in in the construction business in
the State of Louisiana.
Mechanical Services Company, Inc., herein
Mechanical , is engaged in business as a main-
736 DECISIONS OF NATIONAL
tenance and laborer contractor. During a represent-
ative year Mechanical has received in excess of
$50,000 for services performed for Hooker Chemi-
cal Corporation at Taft, Louisiana.
Hooker Chemical Corporation, herein Hooker, is
a New York corporation having its principal place
of business at New York, New York, where it is en-
gaged in the processing, sale, and distribution of
chemical products. In the operation of its Taft,
Louisiana, plant Hooker transports chemical
products valued in excess of $50,000 annually from
Taft directly to places outside the State of Loui-
siana.
Specialty, Mechanical, and Hooker are engaged
in commerce within the meaning of the Act.
II. LABOR ORGANIZATION INVOLVED
Respondent is a labor organization within the
meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The complaint in Case 15-CB-1025 alleges that
on August 4, 1969 , Respondent caused Specialty to
discharge Billy McLennan and caused Specialty to
refuse to rehire him because of his lack of member-
ship in Respondent.
Paragraph 8 of the complaint in Case
15-CB-1034_ alleges that on August 11, 1969,
Respondent restrained and coerced employees by
informing them that Respondent would give
preferential treatment in referrals to a certain in-
dividual because he had done picket duty for
Respondent.
Paragraph 9 of said complaint alleges that on Oc-
tober 17, 20, and 21 Respondent caused Specialty
to refuse employment to Calvin Beals and Merlin
Beals by discriminatorily refusing to refer them for
employment with Specialty because of their non-
membership in Respondent.
Paragraph 10 of said complaint alleges that on
November 6, 1969, Respondent caused Mechanical
to refuse to hire Calvin Beals and Merlin Beals by
refusing to refer them to Mechanical for employ-
ment because of their nonmembership in Respon-
dent.
Neither complaint alleges that either the working
agreement between Respondent and Specialty or
between Mechanical and Respondent or Respon-
dent 's referral rules were unlawful.
The referral system under which Respondent
operated is set forth in Respondent 's "Amended
Rules for the Referral of OUT-OF-WORK Jour-
neymen ." (G.C. Exh. 17.) The pertinent parts of
LABOR RELATIONS BOARD
these rules read:
In order to protect the seniority rights and ac-
crued fringe benefit rights of employees and
their dependents there shall be three (3) OUT-
OF-WORK lists for each above trade classifica-
tions:
LIST I: Journeymen who have been employed
three (3) years within area jurisdiction of
Local 60 for any contractor, or group of
contractors, prior to Hiring System being
placed in effect on October 1, 1960; or for a
local employer one (1) year prior to the em-
ployer signing an agreement with the Union;
or for employers who have contributed to his
behalf into the "Plumbers and Steamfitters
Welfare Fund of New Orleans" for a
minimum of 2000 hours during the five (5)
year period immediately preceding his date
of registering for work. If a question arises
over a registrant's eligibility to be placed on
LIST I, the registrant shall be required to
furnish the proper information, i.e., letters
from employers, payroll vertification, and/or
Federal Income Tax forms, etc.
LIST II: Any qualified journeyman who has
previously worked in jurisdiction but who
does not have the required number of hours
as required above.
LIST III: Any other applicant for work who
has not worked within jurisdiction for con-
tributing employers, but who has qualified
for work by having passed a competency ex-
amination given by New Orleans Joint Ap-
prenticeship and Hiring Committee or other
similar Joint Hiring and /or Examining Com-
mittees for the Industry.
REFERRAL OF MEN
1. Contractors request for journeymen shall be
made to the Union Business Manager's of-
fice not later than 4:00 P.M. each day for
call-out the following morning. Upon the
request of a contractor for journeyman, the
Union (Dispatcher) shall refer competent
and qualified registrants to that contractor in
sufficient number required by the contrac-
tor, in the manner and under the conditions
specified in the agreement, from the
separate appropriate out-of-work list on a
first in, first out basis; that is, the first man
registered shall be first man referred, except
that:
(a) Requests by contractors in writing for
PLUMBERS & STEAMFITTERS LOCAL UNION 60 737
key men to act as supervisors, general
foreman shall be honored without regard
to the requested man's place on the out-
of-work list.
(b) Requests by contractors in writing for
particular out-of-work journeymen previ-
ously employed by the contractor and who
have been laid off or terminated by the
contractor within one hundred (100) days
previous to the request shall be given
preference of rehire and shall be
dispatched to that contractor, regardless
of the applicant's position on the out-of-
work list.
(c) Except as outlined above, contractor's
requests received for referral of jour-
neymen shall be called out in numerical
order in Hiring Hall between hours of 8:00
A.M. to 9:00 A.M., daily, Monday to
Friday, holidays excepted. The jour-
neyman whose name is called out first, if
present, shall be given the job referral. All
journeymen's names on List I must be
called out and be given preference or an
opportunity to accept referral before List
II or List III is called out. If any contrac-
tor's called-out request is not filled by
9:00 A.M., then the Dispatcher (Agent)
shall be authorized to fill the contractor's
request after 9:00 A.M. to the best of his
ability with qualified registrants for work.
Any contractor's request for men for
emergency work ; unloading of materials,
etc., where journeymen are required im-
mediately for work that cannot wait until
the following morning 's "call-out," the
Dispatchers or Agents shall use their
judgment in filling these jobs on an emer-
gency basis.
(d) A job applicant must be in the
Dispatch Hall to receive a work referral
that is called out before 9:00 A.M. If any
applicant turns down employment on
three (3) different days; or is absent or
refuses to answer three (3) job call outs
during three (3) days without valid reason
(each one day's absence shall count for
one call out) shall have his name removed
from out-of-work list and shall be required
to re-sign the register to be put back on
out-of-work list the date he re- signs in.
The only exception for absence shall be
illness of the registrant or his immediate
family verified by a written statement from
his physician, or evidence in writing that
the applicant's absence, if not due to ill-
ness, was due to causes beyond his con-
trol, or was in the exercise of prior
privilege granted under Rule 8.
B. Case 15-CB-1025
Ralph Williams was superintendent for Specialty.
Sometime in March 1969,' Williams commenced a
subcontract job for Alodex at Houma, Louisiana,
which lay within the jurisdiction of Respondent.
Williams hired as plumbers on this job Ira Nebels,
foreman and a union member; his son, Richard Wil-
liams; Billy McLelland, the Charging Party; and a
plumber named McElroy. All of these were non-
members.
On or about Friday, August 1, Eddie Fink,
Respondent's business agent, came to the jobsite
and told Williams to have Adolph Chandler, pre-
sident of Specialty, at the Respondent's office on
Monday, August 4. Respondent threatened to
picket the jobsite if Chandler did not appear. On
August 4, Chandler signed a collective-bargaining
agreement with Respondent and Respondent
agreed to let Ralph Williams work without a book.
The question then arose as to the status of the three
nonunion journeymen. Without resolving what I
consider minor discrepancies in the testimony as to
what took place at this meeting , I find that as a
result the three nonunion plumbers were laid off
and the hiring was to start "from scratch" at the
request of the Respondent.' I find the allegations of
the complaint supported insofar as they allege that
on August 4 Billy McLelland was laid off by Spe-
cialty at the request of Respondent in violation of
Section 8(b)(1)(A) and (2) of the Act.
The issue as to the failure and refusal to reinstate
McLelland is obscure. Williams did not, in any
event, make any requests for men until August 11
when Nebels and McElroy, a permit man, were sent
back. Thereafter, Nebels made all direct requests to
the hall for men. Williams stated he got all the men
he needed but did not know whether Nebels ever
asked for either McLelland or Richard Williams
although he had "talked to him about it."3 Richard
Williams was rehired at Houma, on September 15,
after he received a work permit from Respondent.
Although the General Counsel's brief does not
dwell on Respondent's failure to refer McLelland,
' Unless otherwise noted all dates hereafter refer to 1969
2 I find nothing to support the statement attributed to Chandler ( who did
not testify ) that he might have to shut the job down due to property
problems Respondent's own witneses indicated that they were angry with
Chandler, and understandably so, for trying to operate a nonunion job
although he was considered a union contractor
' Nebels testified he never asked for McLelland because he was never
instructed to ask for him
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the allegation still stands in the complaint . McLel-
land's own testimony is that he visited the jobsite
every day for a week after August 4 and saw Ralph
Williams, who told him Fink would be down in a
few days and things would be straightened out. He
then returned to Plain Dealing , his home, about
365 miles from Houma.
A week later he returned to Houma to find that
nothing had developed. (The record indicates that
by this time Ralph Williams , Neber, and McElroy
had all been rehired .) A week or two later a man
identified by McLelland as a supervisor for Alodex
gave him 3 weeks ' work as a laborer at Houma,
telling him that as soon as he got his permit he
could go back to work as a plumber . McLelland
testified that about September 2 he went to the hall
with Richard Williams where they asked to see
Fink . When Fink arrived Richard told him they had
been sent to get a permit and Fink 's reply was that
he then had 43 men "on the bench." Neither Wil-
liams nor McLelland had, at this time, signed the
out-of-work list , nor had they been advised it was
necessary for them to sign it.' On cross-examina-
tion McLelland admitted that he relied , almost
totally, on either Chandler, Ralph Williams, or
Nebel to get him a permit from Respondent, to
notify him, and to put him to work.
On McLelland 's own testimony I cannot find that
Respondent at any time refused to refer McLelland
to the Houma job because he was not a member of
the Respondent Union and it shall be recom-
mended that this portion of the complaint in Case
15-CB-1025 be dismissed . A journeyman who is
brought under a union contract has some obligation
to acquaint himself with the hiring rules and
procedures and McLelland by his own testimony
made no such effort. The rules were public and
available and no further wet-nursing by Respondent
was required.
It shall be recommended that the complaint, in-
sofar as it alleges Respondent caused Specialty to
refuse to rehire McLennan , be dismissed.
C. Case 15-CB-1034
Neither brief refers to the allegation in paragraph
8 of the complaint concerning an offer of
preferential hiring to an employee for doing picket
duty . The testimony educed in support thereof was
so utterly trivial and frivolous that it may be as-
' Respondent 's referral rules were posted at the hall but the first half of
page one was covered by the notice required by another Government agen-
cy
, Nebels testified that he never told anyone he would be entitled to his
job back Since he did not know if he would be back on the job himself On
this particular issue I credit Nebels
6 Fink testified , credibly, that he told them he would have to follow the
sumed that the parties agreed , sub silentio , to inter-
ment of the allegation without formal rites . I concur
and it shall be recommended that this allegation be
dismissed.
Paragraph 9 of the complaint refers to a refusal
on the part of the Union to refer the Beals brothers
to the Specialty job at Houma, on October 17, 20,
and 21 . The Beals brothers , together with Angelo
Giafaglione , had been working on the job on Oc-
tober 6 when it shut down temporarily. Each of
them was told by Nebels, job foreman , that they
would be entitled to go back when the job
reopened .5 The next day when the three reported to
the Hall they told Fink that Nebels told them they
were entitled to reinstatement and Fink said it was
all right with him.6
On Friday, October 17, Giafaglione and the Beals
were again at the hall when a call came in for nine
plumbers to report to Specialty on Monday, Oc-
tober 20. According to Giafaglione, Fink an-
nounced the call and he and Achille Fink, who had
also been working at Specialty, accepted and were
given referrals .? Giafaglione asked about the Beals
and was told by Fink he was saving the job for his
book men. ( Book men were No. I list men.) Calvin
Beals testified that he asked Fink if he would not be
referred back to Specialty and received the same
answer . Fink's testimony with respect to these
inquiries is that he made the same response he had
previously made-that he would follow the hiring
procedures. (When the call for nine men came in
on October 17 no journeyman was requested by
name.)
On October 21 four men were referred , complet-
ing the complement . These were Robert Osborne,
J. Rossi , E. LeBlanc, and B. Wood, all from the No.
I list.
The gravamen of the complaint of the General
Counsel, as I understand it, is that Fink, having ex-
hausted the No. I list of Friday, was compelled to
call the No. II list, in which case the Beals would
have accepted and would have been referred.
Respondent 's contention is that since the Friday
call was not to be filled until Monday it was
required to wait until Monday to give the No. I men
a chance to respond . Monday, however , hurricane
warnings had issued , Fink was not at the union hall,
and no work was performed at the jobsite. On
Tuesday the call from Specialty was completed by a
call of the No. I list, leaving the Beals without refer-
hiring procedures which would require that the hiring foreman request
them by name in writing Giafaglione testified that he was aware of this
requirement
r List I men who were also accepted by Fink on October 17 were Gerald
Strohmeyer, R Francigues , and J D McLellan Gene Hart was accepted
and referred on October 20 by Soule acting for Fink
PLUMBERS & STEAMFITTERS LOCAL UNION 60
rals. Disposition of the case, therefore, requires a
construction of the hiring practices and a finding as
to whether or not they were violated and, if so, for
discriminatory reasons.
This is not a decision which will be helped by ex-
haustive research and none has been attempted by
either counsel. The general principles of law ap-
plicable to exclusive hiring halls have been set forth
ad nauseam and nothing could be clearer than that
any taint of discrimination in the referral practice
serves to make the practice or specific discrimina-
tory act thereunder in full. I find only two sentences
in the referral rules to serve as guidance. Those
sentences paragraph 1(c), Referral of Men, reads:
All journeymen's name on List I must be called
out and be given preference or an opportunity
to accept referral before List II or List III is
called out., If any contractor's called-out
request is not filled by 9 a.m., then the
Dispatcher (Agent) shall be authorized to fill
the contractor's request after 9 a.m. to the best
of his ability with qualified registrants for
work.
The facts not being in dispute, the sole question
is whether the business agent was required to call
the No . II list on Friday as soon as the No. I list was
exhausted, although the call was not required to be
filled until Monday. (Since the hurricane threat
suspended all normal procedures on Monday,
Tuesday became the final day for referral.) The
record is barren of past practice covering this situa-
tion so the decision must, of necessity, be an ar-
bitrary one.
It is my conclusion, made admittedly with almost
no evidence, that Fink was not required to call the
No. II list on Friday. Since the referrals were not
required to be made until Monday I think a
reasonable construction would permit the holding
of the No. II list until the No. I list had been called
on that day. Quite obviously this gave preference to
the book men but the hiring rules gave preference
to book men, ostensible on seniority grounds, and
have not been attacked. It is unfortunate that a trial
examiner and ultimately the Board should be
placed in the role of unofficial arbiter of the hiring
procedures at a union hall but the Act leaves no
choice. If exclusive hiring halls are to be permitted,
the opportunities for discrimination are so abun-
dant that close scrutinty is an absolute necessity,
particularly where the hall may be the chief if not
the sole source of employment in a trade. I do not
feel, however, that in the instant case Fink gave
more than a reasonable construction to his authori-
ty under the rules . It should be noted that the
record contains no evidence of personal discrimina-
tion against the Beals.
739
Agreeing that the case is arguable and might
reasonably be decided either way I shall recom-
mend that paragraph 9 of the complaint be
dismissed.
Paragraph 10 refers to a refusal to refer the Beals
to employment at Mechanical on November 6,
thereby causing Mechanical to refuse to employ
them in violation of Section 8(a)(3) of the Act.
On November 6, the Beals brothers presented
themselves to the hall where they signed list II.
They then left for coffee; when they returned to the
hall they learned that list II had been called and
that the Beals, since they had not responded, had
been passed. The hiring rules provided that the men
be present at the hall between 8 and 9 a.m. when
the calls for work were made. It would appear that
this would end the matter, but not so. General
Counsel introduced testimony going back to Au-
gust 11 when an employee named McElroy was
called and Fink was advised he was out in the
street . Fink sent for McElroy and he was referred.
There is no testimony that Fink was likewise ad-
vised that the Beals were outside on November 6
but were not sent for. It is on this slender evidence,
if it is evidence of anything at all, that the General
Counsel seeks to establish disparate treatment
based on a discriminatory motive. On November 6
Respondent was entitled to proceed with its call
and its failure to send for the Beals brothers does
not constitute a violation of Section 8(b)(1)(A)
and (2) of the Act.
IV. THE REMEDY
Having found Respondent engaged in a certain
unfair labor practice it shall be recommended that
it cease and desist from the same and take certain
affirmative action necessary to effectuate the poli-
cies of the Act.
Having found Respondent caused Specialty to lay
off Billy McLennan because he was not a member
of the Respondent, I shall recommend that Respon-
dent make Billy McLennan whole for any loss of
pay he may have suffered by reason of said dis-
crimination. Since I have already found Respon-
dent did not refuse thereafter to refer McLennan
for employment it shall be recommended that
Respondent's liability for backpay shall cease as of
the time work for McLennan became available for
McLennan and after Respondent ceased its dis-
crimination. This date shall be fixed as the date
Respondent first referred journeyman to Specialty
pursuant to its contract with Specialty and pursuant
to its hiring procedures. Since McElroy and Nebels
were referred to Specialty on August 1 1 I find this
to be the date on which liability should cease.
427-835 0 - 74 - 48
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings and con- 8(b)(2) and (1)(A) of the Act.
clusions I make the following: 2. The aforesaid labor practice is an unfair labor
practice within the meaning of Section 2(6) and
CONCLUSIONS OF LAW (7) of the Act.
1. By causing Specialty to lay off Billy McLen-
nan on August 4, 1969, in violation of Section [Recommended Order omitted from publica-
8(a)(3) of the Act, Respondent violated Section tion.]