Raber-Kief, Inc.

National Labor Relations Board - Board Decisions

May 17, 1965

152 N.L.R.B. 629 (N.L.R.B. 1965)

RABER-KIEF, INC. 629
rules. Moreover, it is clear from this record that the firemen-watch-
men have the duty as such to deny admittance to the plant to unauthor-
ized persons. Keys to the plant, including those to the gate, are
entrusted to the firemen-watchmen, and the fireman-watchman wit-
ness admitted that when someone rang the gate buzzer he would admit
them only if that person was authorized to be in the plant.
On this record as a whole, I must conclude that the employees in
issue do enforce plant protection rules against both employees and
other persons and are guards within the meaning of the Act. There-
fore, I would exclude them from the certified unit as required by Sec-
tion 9 (b) (3) of the Act.
CHAIRMAN MCCULLOCH and MEMBER ZAGORIA took no part in the
consideration of the above Order Amending Certification.
United Brotherhood of Carpenters & Joiners of America, Local
1281, AFL-CIO [Raber-Kief, Inc.] and Ivan DiBoff . Case No.
19-CB-950. May 17, 1965
DECISION AND ORDER
On January 14, 1965, Trial Examiner James R. Webster issued his
Decision in the above-entitled proceeding, finding that the Respondent
had not engaged in the unfair labor practices alleged in the complaint
and recommending that the complaint be dismissed in its entirety, as
set forth in the attached Trial Examiner's Decision. Thereafter, the
General Counsel filed exceptions to the Trial Examiner's Decision and
a brief in support thereof.
Pursuant to Section 3(b) of the National Labor Relations Act, as
amended, the National Labor Relations Board has delegated its powers
in connection with this case to a three-member panel [Chairman
McCulloch and Members Fanning and Brown].
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 brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner only to the extent consistent with
this Decision and Order.
The complaint alleges that, by refusing between June 24 and Sep-
tember 5, 1963, to refer Ivan DiBoff for employment with Raber-Kief,
Inc., pursuant to an exclusive hiring hall agreement, because of antag-
onism against DiBoff on the part of Business Agent Powell, the
152 NLRB No. 48.
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent caused or attempted to cause Raber-Kief, Inc., to discrimi-
nate against DiBoff in violation of Section 8 (b) (2) and had restrained
and coerced DiBoff in the exercise of his rights guaranteed in Section 7
of the Act in violation of Section 8(b) (1) (A). The Trial Examiner
found that the General Counsel had failed to sustain his burden of
proof that the referral for employment to Raber-Kief of other carpen-
ters in preference to DiBoff constituted discrimination against DiBoff.
We do not agree.
The exclusive hiring agreement in force between Raber-Kief, Inc.,
and the Respondent provides for the referral of qualified carpenters
from two lists. List No. 1 consists of men who have been residents of
of the Respondent's jurisdictional area, or have worked within the
area in each of the two preceding years. List No. 2 consists of all other
qualified applicants. The agreement gives job preference to carpen-
ters on list No. 1, except that. an employer may request that out of each
eight carpenters on the job one be on or qualified for list No. 2. This
one-to-seven ratio was to remain in force at any stage or period of a
project. An employer's request for a specific list No. 2 carpenter by
name is honored by the Respondent, unless the one-to-seven ratio pre-
cludes such referral. When the request for carpenters is not by name,
list No. 2 carpenters are not referred to the job until all names on list
No. 1 have been exhausted. A request by an employer for a particular
carpenter can be made through the employee himself. If a carpenter
comes into the hall and states that he was sent by the employer to pick
up a referral slip to go to work for him, such a request is treated as a
request by the employer for this man by name.
Ivan DiBoff, the Charging Party, is 77 years of age. He is a mem-
ber of Respondent and has worked in its jurisdictional area for many
years. In November 1961 he went to Hawaii to work on a project
which ended in May 1963. In May, DiBoff returned to Alaska, rereg-
istered with the Respondent, and was erroneously placed on list No. 1.
When the matter came to the attention of Business Agent Powell,
DiBoff's name was removed by Powell to list No. 2.
In the early part of June 1963, DiBoff asked Foreman Woodward
for employment at the Monta-Vista project of Raber-Kief, Inc. Wood-
ward asked Superintendent Morse to place a request for DiBoff's refer-
ral with the Respondent. He also told DiBoff, when he got his referral
from the Union, to bring it to him and he could start work whenever
he got his tools. There is no evidence as to whether Morse made a
request for referral. DiBoff, however, testified, and the Trial Exam-
iner found, that DiBoff told Powell that the job with Raber-Kief was
waiting for him if he could obtain a referral. Powell denied the refer-
ral on the ground that DiBoff was a list No. 2 man. DiBoff's subse-
RABER-KIEF, INC. 631
quent frequent visits to the hiring hall to obtain a referral to the
Monta-Vista job proved equally unsuccessful . DiBoff reported to
Woodward of his inability to procure a referral slip from Powell.
On or about June 23, Woodward made a telephone request for the
referral of DiBoff, Osnes, and Nicholaysen , all of them list No. 2 car-
penters. The request was refused on the ground that they were list
No. 2 men. Woodward then took them personally to the union hall.
Powell explained that he could not dispatch any one of the three,
because the Monta-Vista quota of list No. 2 carpenters had been filled.
Urgently needing carpenters for the project, Woodward then made
an "open request"; i.e., a request for carpenters not specified by name.
Pursuant to this request Powell, between June 24 and 30 referred to
Woodward eight carpenters, including a list No. 2 carpenter, Saelvik.
Some of these carpenters , including Saelvik, proved to be incompe-
tent, and were paid off on June 28. On June 26, when Saelvik was
referred for a job, the Monta-Vista quota of list No. 2 carpenters had
been filled.
On or about July 1, Powell brought to Woodward a list No. 1 car-
penter, Hansen, and asked Woodward to hire him. As Woodward
did not think that Hansen was the right man for the job, he refused
to employ him. Powell said that if Woodward would put Hansen to
work, he would refer either Osnes or Nicholaysen. Woodward refused
but said that if Powell would send both, Osnes and Nicholaysen, he
would take Hansen. Eventually , all three were referred to Wood-
ward. On July 2, when Powell referred Osnes, the Monta-Vista quota
of list No. 2 carpenters was already filled. On July 3, when Powell
referred Nicholaysen, the number of list No. 2 carpenters on that proj-
ect was two in excess of the permissible quota.
In the latter part of July, Haber- Kief began hiring carpenters for
its Adak project . On Woodward's recommendation , Office Manager
Taylor placed a request for DiBoff . DiBoff was not referred because,
as Powell later explained to Taylor , he was not on list No. 1. In an
attempt to secure referral, DiBoff made several visits to the hiring hall.
All these visits produced no results until about September 10, when
DiBoff was referred to the Adak project. After DiBoff had been
initially denied a referral, three list No. 2 carpenters were referred to
the project; i.e., Wood, O'Shaugbnessy, and Wymer. The record
shows that on each such occasion a list No. 2 carpenter was referred
to the project at a time when the project 's quota of such carpenters
had already been filled.
The Trial Examiner found that after the initial specific requests for
DiBoff's referral-on June 23 for the Monta -Vista project and near
the end of July for the Adak project-Raber-Kief made no specific
requests for DiBoff. He then concluded that the Employer 's failure
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to request DiBoff by name , while making specific requests for other
list No. 2 carpenters , indicated the Employer 's preference for these
men over DiBoff, and hence apparently canceled or revoked his prior
request for DiBoff. The record does not support this conclusion.
Questioned about this matter, Woodward testified that he made spe-
cific requests for Osnes and Nicholaysen and not for DiBoff because he
"was resigned to the fact that [DiBoff] was not going to be sent to the
job," that DiBoff had "told him many times that he couldn't get
[a referral slip]." After Powell's initial refusal to refer Osnes and
Nicholaysen , Woodward ' s next request for carpenters was an "open
request," in which he did not ask for carpenters by name, because he
needed carpenters for his project badly and his prior request, first for
DiBoff and then for Osnes and Nicholaysen , had been denied by
Powell. The office manager for the Adak project , Taylor, gave a
similar explanation . He placed his first request for DiBoff sometime
in July. He requested DiBoff once more after he received Finance
Secretary Lannen's letter stating that DiBoff would be dispatched.
This request was again denied on the ground that DiBoff was not on
list No. 1. Taylor testified that he believed that he had called Powell
a couple of other times . After Taylor "had been definitely turned
down and gave up hope of getting dispatch" of DiBoff, he told DiBoff
that "it was just a waste of nuy time and his time coming in to see me."
We find that Raber-Fief 's failure to make specific requests for DiBoff's
referral after the initial requests had been rejected by Powell does not
indicate either its preferences for other list No. 2 carpenters over
DiBoff , or that it had canceled or revoked the pending requests for
DiBoff's referral made through DiBofF himself . Assuming, however,
that the failure thereafter to make a specific request for DiBoff did
revoke the Employer's prior request for DiBoff , the Respondent's
denial of the original request, if discriminatory , would make it respon-
sible for all the consequences of its original wrongful action.
The Respondent denies that, through Business Agent Powell, it dis-
criminated against DiBoff in the matter of his referral for employ-
ment. It contends that the requests for DiBoff 's referral were rejected
because DiBoff was a list No . 2 carpenter and because at the time of
such requests the one -to-seven ratio of list No. 2 to list No. 1 carpenters
did not warrant his referral. We find no merit in this contention.
Assuming that DiBoff's referral at the time would not have been war-
ranted if the required ratio were strictly adhered to, the record estab-
lishes that the ratio had been strictly followed only with respect to
DiBoff, and not other list No. 2 carpenters. After the initial requests
for DiBoff's referral had been denied on that ground, eight list No. 2
carpenters were referred to Raber-Kief project in disregard of the
ratio and when the Employer 's quota for list No. 2 carpenters had
RARER-KIEF, INC. 633
already been exhausted. Only in DiBof's case was the required ratio
relied on as an excuse for the denial of referral. The record shows
that other list No. 2 carpenters have been referred, in preference to
DiBof£, to Raber-Kief pursuant to its "open request" for carpenters
although Raber-Kief's specific request for DiBoff's referral was still
pending. Thus, a list No. 2 carpenter, Saelvik, was referred to a
Monta-Vista job on June 26 in preference to DiBoff although Saelvik's
referral was not specifically requested. Under apparently similar cir-
cumstances, Powell, on August 20, referred Freeberg, whose name did
not appear on either list 1 supplied by the Respondent, to the Monta-
Vista job.
The complaint alleges, in substance, that Powell's disparate treat-
ment of DiBoff, as set out above, was due to Powell's hostility toward
DiBoff and that this hostility arose out of or in connection with
DiBoff's activity as a union member. The evidence amply supports
these allegations.
Powell's hostility toward DiBoff appears to have originated with
DiBoff's violation in 1960 of the Respondent's jurisdictional rules on
a project at St. Paul's Island. DiBoff had a laborer move some mate-
rial. The steward on the job called a meeting of carpenters to discuss
the incident, and the meeting voted that DiBoff be removed from the
job. Only the project manager's intervention saved DiBoff's job.
When Powell later arrived at the island, DiBoff was reprimanded by
Powell for "not standing up to the Carpenters' jurisdiction."
In June 1963, Local 1281 held an election for a business agent.
Powell was one of the candidates for that office. A rerun election was
held in August of the same year. In both elections, DiBoff openly
campaigned against Powell. DiBoff went around telling everybody
he knew that Powell "was not man enough to be in that job." He
offered his help in the campaign to Powell's rival. According to
Finance Secretary Lannen, DiBoff pulled "no punches" while cam-
paigning. DiBoff's part in the campaign was a matter of "common
knowledge." Powell was well aware of it.
In an effort to obtain a referral, DiBoff in July registered com-
plaints with the International headquarters of the Union and the
National Labor Relations Board. Powell knew of these complaints.
On one occasion he told DiBoff that lie had received a letter from
President Hutchinson and added : "You think this is going to help
you?"
Sometime in August, DiBoff brought his case before the Respond-
ent's executive board. Business Agent Powell, although not a member
3 Counsel for the General Counsel contends that Freeberg, whose name did not appear
on either list was a list No. 2 carpenter Powell, who was questioned with respect to
Freeberg's status, did not know which list Freeberg was on without consulting his
referral records.
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the board, attended the meeting. After DiBoff had presented his
case, the board decided unanimously, in view of DiBoff's "union back-
ground and age," to grant him "special dispensation" and to dispatch
him to any job for which he is requested. The next day, the board's
secretary wrote Raber-Kief advising that DiBoff would be dispatched
at any time it so desired. Nothing came of this because the board's
action was reversed at the next general membership meeting of the
Respondent. At this meeting, Powell opposed the board's action, cited
the 1960 incident at St. Paul's Island, and accused DiBoff of cutting
down Carpenters' jurisdiction by making concessions to laborers.
Powell admitted that DiBoff made him "temporarily angry" and
stated "I am not very happy with DiBoff because of the way he
insulted me all summer and because of the length to which, he went to
get dispatched." While DiBoff's complaint was pending before the
executive board of the local, Finance Secretary Lannen frequently
"insisted or pleaded" with Powell to dispatch DiBoff. Powell, during
this period, stated to Lannen that he "was not going to dispatch the
old son-of-a-bitch, he was on list No. 2 regardless." According to
Lannen, Powell demonstrated "great dislike" for DiBofF. Lannen
thought they would "come to blows several times there" when DiBoff
asked to be dispatched. To Frank Skinner, a supervisor for Wedekind
Company, who asked for DiBoff's referral to his project, Powell stated
that he did not "give a damn if DiBoff ever goes to work."
Upon the entire record we find that the Respondent's alleged reason
for the denial of DiBoff's requests for referral to Raber-Kief; namely,
that the referrals were not warranted under the one-to-seven ratio of
list No. 2 carpenters, is not borne out by the record. Far from strictly
enforcing this rule, the Union frequently waived it with respect to
other list No. 2 carpenters. While the Union may establish reasonable
rules for administering an exclusive hiring hall, it may not administer
them in a discriminatory manner 2 Under all the circumstances, we
are convinced that the real reason for the discriminatory treatment
accorded to DiBoff is to be found in DiBoff's union activities which
incurred Powell's enmity and disapproval. DiBoff openly partici-
pated in electioneering against Powell during the two elections in the
summer of 1963. Dissatisfied with Powell's referral practices, he
2 J. J Hagerty, Inc., 139 NLRB 633, 654, enfd. in part sub nom. Local 138, Interna-
tional Union of Operating Engineers, AFL-CIO, et at. v. N.L.R.B., 321 F. 2d 130 (C.A.
2), where the referral was denied to members of a reform group, Local Union No. 18,
International Union of Operating Engineers , AFL-CIO and its agent , George E. Miller
(Earl D Creager, Inc ), 141 NLRB 512, where the union refused referral on the alleged
ground that the discriminatee violated the so -called 24 -hour rule while at the same time
waiving the application of that rule to other employees. See also Local 357, Interna-
tional Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America
(Los Angeles-Seattle Motor Empress) v. N.L IL B , 365 U S. 667, where the Court held
that it is permissible for an employer to agree to hire only employees referred by the
Union, provided that the hiring hall is operated on a nondiscriminatory basis.
RABER-KIEF, INC. 635
carried his dispute to the executive board of the local, and later on
filed his complaints with the International president and the National
Labor Relations Board. It is well established that the activities of
employees, such as those of DiBoff, to oust an incumbent union officer
and elect a new one in a forthcoming election, are concerted activities
protected by Section 7 of the Act, and are encompassed within the
8 (b) (2) proscription of discrimination because of such union activi-
ties." Under Section 8 (b) (2) a union, under the exclusive hiring hall
arrangement, may not refuse requests for referral for employment for
reasons which relate to their union or concerted activities.4 Nor could
the Union deny the referral of DiBoff because of his infraction of the
Union's jurisdictional rules some 3 years before. Although violative
of the intraunion rules, his conduct did not affect his right to a job.'
As the Respondent attempted to cause, and did cause, Raber-Kief,
Inc., to discriminate against DiBoff in violation of Section 8(a) (3),
the Respondent thereby violated Section 8 (b) (2) of the Act. By thus
attempting to cause and causing Raber-Kief to discriminate against
DiBoff, the Respondent also has restrained and coerced DiBoff and the
employees of Raber-Kief, Inc., in the exercise of rights guaranteed by
Section 7 of the Act, and has thereby violated Section 8(b) (1) (A)
of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair labor prac-
tices, it will be ordered that it cease and desist therefrom and take
certain affirmative action designed to effectuate the purposes of the Act.
3 Local Union No. 18 , International Union of Operating Engineers , AFL-CIO, etc.
(Carl D Creager, Inc ), supra, where the discriminatee sought to unseat the incumbent
union leadership in a forthcoming election, Emmadine Farms, Inc., 138 NLRB 1098,
where the union caused the discharge because of the employee's consistent opposition to
the union leadership and policies ; International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America, Local No. 38, etc . ( Al Johnson Construction Co ),
146 NLRB 1627 , where the union refused to refer a member of the dissident group who had
sought to defeat the reelection of the incumbent union officers.
b International Brotherhood of Teamsters, Chauffeurs , Warehousemen & Helpers of
America, Local No 38, etc (Al Johnson Construction Co ), supra.
'International Hod Carriers', Building and Common Laborers' Union of America,
Local 894 , AFL-CIO ( Thorp Construction Company and Lomelo Construction Company),
148 NLRB 55, where the union denied clearance to an employee because he was not a
member in good standing. In finding the denial violative of Section 8(b) (2), the Trial
Examiner , affirmed substantially by the Board , observed that whether the membership
was denied because the employee sought to oust the union ' s business representative, or
because the union was trying to purge itself of gamblers , it was patently for a reason
other than his failure to tender periodic dues and initiation fees required as a condition
of acquiring or maintaining membership . See also Local No. 320, International Union
of operating Engineers , AFL-CIO (R. W. Hughes Construction Company, Inc.), 150
NLRB 455, where the union refused to refer an individual on the ground, inter alia,
that he was a "troublemaker "; The Leece-Neville Company, 140 NLRB 56, 62, enfd. 330
F. 2d 242 (C.A. 6), cert. denied October 12, 1964 [379 US 819], where the Board
found that the union , in causing discharge of members of the dissident group, allegedly
for nonpayments of dues , violated Section 8 ( b) (2) of the Act.
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having found that the Respondent had caused Raber-Kief, Inc., to
discriminate against Ivan DiBoff, it will be ordered that the respond-
ent make DiBoff whole for any loss of earnings sustained by reason
of the discrimination from the date of DiBoff's first request for refer-
ral to Raber-Kief's Monta-Vista project to the date of the referral of
DiBoff to Raber-Kief's Adak project. Backpay shall be computed in
accordance with the Board's formula in F. W. Woolworth Company,
90 NLRB 289, together with interest at 6 percent per annum, as pro-
vided in Isis Plumbing & Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. Raber-Kief, Inc., and the Alaska Chapter of the Associated Gen-
eral Contractors of America, Inc., are employers engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. United Brotherhood of Carpenters & Joiners of America, Local
1281, AFL-CIO, the Respondent herein, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By attempting to cause, and by causing, Raber-Kief, Inc., to dis-
criminate against Ivan DiBoff in violation of Section 8(a) (3) of the
Act, the Respondent has violated Section 8(b) (2) and 8(b) (1) (A) of
the Act.
4. The aforesaid unfair labor practices affect 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 Relation Board hereby orders that the
Respondent, United Brotherhood of Carpenters & Joiners of America,
Local 1281, AFL-CIO, its officers, agents, and representatives, shall:
1. Cease and desist from :
(a) Causing or attempting to cause Raber-Kief, Inc., to deny
employment to, or in any other manner to discriminate against, Ivan
DiBoff in violation of Section 8(a) (3) of the Act.
(b) Denying a referral to, or in any other way discriminating
against, Ivan DiBoff for engaging in activities as a union member.
(c) In any like or related manner restraining or coercing employees
in the exercise of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds nec-
essary to effectuate the purposes of the Act :
(a) Notify Raber-Kief, Inc., in writing, that it has no objection to
the continued employment of Ivan DiBoff.
(b) Make Ivan DiBoff whole for any loss of pay suffered because
of the discrimination against him in the manner set forth in the sec-
tion of this Decision entitled "The Remedy."
RARER-BIEF, INC. 637
(c) Post at its offices, meeting halls, and hiring halls, copies of the
attached notice marked "Appendix." 6 Copies of said notice, to be
furnished by the Regional Director for Region 19, shall, after being
duly signed by a representative of the Respondent, be posted imme-
diately upon receipt thereof, and be maintained 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 to insure that said notices are not altered, defaced, or covered
by any other material.
(d) Sign and forthwith return sufficient copies of said notice to the
Regional Director for Region 19 for posting by Raber-Kief, Inc., the
said employer being willing, at its business offices and construction
projects, where notices to its employees are customarily posted.
(e) Notify the Regional Director for Region 19, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
IIn the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL OUR MEMBERS, OFFICERS, REPRESENTATIVES, AND
AGENTS : TO ALL EMPLOYEES OF RABER-KIEF, INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the purposes of the National Labor
Relations Act, as amended, you are hereby notified that:
WE WILL NOT cause or attempt to cause Raber-Kief, Inc., to
deny employment to, or in any other manner discriminate against,
Ivan DiBof, in violation of Section 8(a) (3) of the Act.
WE WILL NOT deny referral to, or in any other way discriminate
against, Ivan DiBoff for engaging in activities as a union member.
WE WILL NOT in any other like or related manner restrain or
coerce employees in the exercise of rights guaranteed in Section 7
of the Act.
WE WILL notify Raber-Kief, Inc., in writing that we have no
objection to the continued employment of Ivan DiBoff.
WE WILL make Ivan DiBoff whole for any loss of pay suffered
by reason of the discrimination practiced against him.
UNITED BROTHERHOOD OF CARPENTERS & JOINERS
OF AMERICA, LOCAL 1281, AFL-CIO,
Union.
Dated---------------- By-------------------------------------
(Representative ) (Title)
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days from the
date of posting , and must not be altered , defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 327 Logan Building, 500 Union Street, Seattle , Washington,
Telephone No. Mutual 2-3300, if they have any question concerning
this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before Trial Examiner
James R. Webster in Anchorage, Alaska, on July 28, 29, and 30, 1964, on complaint
of the General Counsel and answer of United Brotherhood of Carpenters & Joiners
of America, Local 2181, AFL-CIO, herein called the Respondent.
The complaint, which was issued on March 18, 1964, upon a charge filed Septem-
ber 3, 1963, alleges that Respondent violated Sections 8(b)(1)(A) and (2) of the
Act, by its refusal to refer Ivan DiBoff, the Charging Party, for employment during
the summer months of 1963 pursuant to the existing hiring hall procedure.
The Counsel for General Counsel and the Respondent have filed briefs herein, and
they have been carefully considered. On October 30, 1964, the counsel for General
Counsel filed a motion to correct record. No opposition thereto has been filed, and
I have carefully examined the record and considered the corrections proposed by
the General Counsel. I find that each of the proposed corrections contained in his
motion are in order, and I hereby order that the record stand corrected accordingly.
Upon the entire record, and upon my observation of the witnesses, I hereby make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Raber-Kief, Inc., is, and has been at all times material herein , a State of Wash-
ington corporation engaged in construction work in Alaska, and is a member of the
Alaska Chapter of the Associated General Contractors of America, Inc. Raber-
Kief, Inc., annually has a gross income exceeding $500,000 and annually purchases
goods and supplies of a value in excess of $50,000 which are shipped from points
outside the State of Alaska to its construction sites in the State of Alaska, and
Raber-Kief, Inc., annually performs services valued in excess of $50,000 for the
United States Government relating to national defense.
Raber-Kief, Inc., during all times material to this proceeding, has been engaged
in two construction projects in the State of Alaska, one near Anchorage, Alaska,
herein referred to as the Monta-Vista project, and one on Adak Island, herein
referred to as the Adak project.
The Alaska Chapter of the Associated General Contractors of America , Inc., is,
and has been at all times material herein, a multiemployer association of general
contractors and other employers of carpenters in the State of Alaska. Said Asso-
ciation was formed and exists for the purpose, among others, of representing its
members in collective bargaining with labor organizations , including the Respond-
ent. The members of said Association in the aggregate course and conduct of their
business operations , receive an annual gross income exceeding $ 1,000,000, and annu-
ally purchase goods and supplies from outside the State of Alaska valued in excess
of $50,000, and annually perform services valued in excess of $50,000 for the United
States Government relating to national defense.
I find that the Alaska Chapter of the Associated General Contractors of America,
Inc., and Raber-Kief, Inc., are each employers within the meaning of Section 2(2),
( 6), and (7) of the Act.
RABER-KIEF, INC.
II. THE LABOR ORGANIZATION INVOLVED
639
United Brotherhood of Carpenters & Joiners of America , Local 1281 , AFL-CIO,
the Respondent herein , is a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issue
The issue in this case is whether or not Respondent failed and refused to refer
Ivan DiBoff for employment with Raber-Kief, or other employers, during the sum-
mer of 1963 pursuant to the existing exclusive hiring hall agreement, because of
animosity for DiBoff by Respondent's business agent and because of DiBoff's lack
of good standing with said business agent, or because DiBoff's lack of good standing
with said business agent, or because DiBoff failed to qualify for referral pursuant to
the exclusive referral agreement between Respondent and the employers involved.
B. The exclusive hiring agreement
The Respondent and the Alaska Chapter of the Associated General Contractors
of America have an exclusive hiring agreement providing for the referral of qualified
applicants for carpentry work from two lists. List No. 1 consists of men who (a)
have been for the preceding year residents of Respondent's jurisdictional area; or
(b) have worked in the carpentry trade within Respondent's jurisdictional area in
each of the preceding 2 years. List No. 2 consists of all other qualified applicants.
The agreement gives job preference to employees on list No. 1 with the exception
that contractors may employ one carpenter out of each eight carpenters on or quali-
fied for list No. 2 without regard to the said preference. The agreement provides
that: "Of the first eight carpenters employed on each job one may be the exception,
thereafter the exception shall be only after seven other carpenters are employed.
This ratio of List No. 2 to List No. 1 carpenters will not be exceeded at any stage
or period of project."
When an employer requests the referral of a list No. I carpenter by name, that
carpenter is entitled to referral regardless of his placement on the out-of-work list,
and even though his name is not physically on the list. A request for a specific list
No. 2 carpenter, by name, is also honored unless the one-to-seven ratio would pre-
clude the referral of a list No. 2 carpenter, and this is so even though his name is
not physically on the list. When the request is not for carpenters by name, referrals
are made in accordance with the numerical order on the out-of-work lists, and in
such cases the list No. 2 is not used until all names on list No. 1 have been exhausted.
A request by an employer for a particular carpenter can be made through the
employee himself. This is an expedient that the Union has developed through suc-
cessful usage.
C. DiBoff's qualifications for referral
DiBoff is a man of 77 years of age and has worked in the jurisdictional area of
Respondent for many years. He was absent from the State of Alaska from Novem-
ber 1961 to May 1963, during which time he was in the State of Hawaii following
his trade as a carpenter. He maintains a residence in Edmonds, Washington.
When DiBoff returned to Alaska in May 1963, he talked with Ben Perkins,
Respondent's finance secretary, regarding a referral. Perkins concluded that DiBoff
should be placed on list No. 1, and he based this conclusion on the premise that
DiBoff did not establish a home in Hawaii. This was not in accordance with the
provisions of the hiring hall agreement, and shortly thereafter, when the matter
came to the attention of Business Agent Robert Powell, he removed DiBoff's name
from list No. 1 and placed it on list No. 2. DiBoff's position on list No. 2 was 28th.
Although DiBoff was on list No. 2, he was qualified for referral to an employer if
requested by that employer and if the ratio of list No. 2 men to list No. 1 men in
the employ of the particular employer did not exceed one to seven. Otherwise,
DiBoff would be eligible for referral only after all men on list No. I had been offered
employment and after those that preceded him on list No. 2 had been offered
employment.
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The refusal to refer DiBoff
In the early part of June 1963, DiBoff talked with George Woodward, a foreman
on the Monta-Vista job of Raber-Kief, regarding employment. Woodward asked
Link Morse, the general superintendent on the Monta-Vista project, to request that
DiBoff be referred by Respondent. DiBoff stated that he wished to use his own
tools, which had not arrived in Alaska at that time, and stated that he would be
ready to go to work when he received his tools. His tools arrived in the latter part
of June 1963, and from then on DiBoff made frequent visits to the union hall and
to the jobsite seeking employment. There is no evidence that Morse made a request
for DiBoff. Respondent denies receiving a request from Morse, and Morse did not
testify. Woodward could only assume that it was made. Nevertheless, DiBoff com-
municated to Business Agent Powell that a job with Raber-Kief was waiting for him
if he could obtain a referral.
In the latter part of June 1963, on or about June 23, 1963, Woodward made a
telephone request of the Respondent for three carpenters-DiBoff, Narvald Osnes,
and Torstein Nicolaysen-all list No. 2 carpenters. The request was refused on
the grounds that they were list No. 2 men. Woodward testified that he needed these
men very badly for the type of work he felt sure they could do, and he took them
personally to the union hall. Powell explained to him that under no circumstances
could he dispatch anyone of the three because of the fact that Woodward had too
many list No. 2 men on the job at the time. Powell had previously dispatched men
pursuant to Woodward's request, but some of these had been terminated as incom-
petent. A few days after the request for DiBoff, Osnes, and Nicolaysen, Powelt
visited the jobsite and brought with him a carpenter named Hansen, who was an
elderly gentlemen. Woodward informed Powell that he could not use Hansen, as
the work he then had required younger men who could climb up and down scaffolds.
He asked Powell to send out Nicolaysen and Osnes. Powell told him that if he
would put Hansen to work, he would send out one of the two younger men. Wood-
ward asked that he send both of them. Powell refused to do this and that ended
their conversation. The next morning Osnes came to the job with a referral slip.
Woodward then placed a call for Hansen and Nicolaysen, and these men were dis-
patched and put to work.
Following the June 23 request for DiBoff, Woodward did not again make a spe-
cific request for DiBoff; but he told DiBoff that any time that he could get a referral'
slip, he had a job at the Monta-Vista project.
On or about June 23, Woodward was promoted from foreman to general super-
intendent at the Monta-Vista project, succeeding Link Morse.
In the latter part of July 1963, Raber-Kief began hiring carpenters for the Adak
project. Louis Taylor, office manager for Raber-Kief, was in Anchorage, Alaska,
during this time hiring personnel for the Adak project. DiBoff was recommended
by Woodward for employment; Taylor placed a request by telephone with Respond-
ent for DiBoff. On another occasion, during this same time, Taylor talked with
Powell regarding DiBoff and was told by Powell that he could not be dispatched
because he was not on list No. 1. During this time, DiBoff visited both the union
hall and the office of Taylor regarding employment, and Taylor told him that if
DiBoff could get Powell to dispatch him, he would send him to Adak.
I conclude and find that DiBoff was specifically requested for the Monta-Vista
project on or about June 23, 1963, and for the Adak project during the time car-
penters were initially employed for that job, near the end of July 1963, and that
DiBoff continually thereafter made known to Respondent that Raber-Kief desired his
employment. The specific requests were turned down by Powell on the grounds
that DiBoff was a list No. 2 carpenter and that the ratio of list No. 2 carpenters to,
list No. 1 carpenters did not warrant his referral. Respondent further contends that
following the specific requests in June and in July DiBoff was not again requested
by Raber-Kief until about September 5 or 6 Pursuant to this request, DiBoff was
referred for employment on September 10, 1963, on the Adak project.' The period'
during which he had been requested and not referred was from about June 23 to
September 10, 1963
Counsel for General Counsel contends that DiBoff continuously made known to
Respondent that Raber-Kief requested him and that DiBoff was discriminated against
as evidenced by the referral of other list No. 2 men, and that Powell's statements to
other persons evidence his animosity for DiBoff as his motive for not referring him.
The charge in this case was filed on September 3, 1963, and a copy was personally-
served on Respondent on or about the same date.
RABER-KIEF, INC. 641
E. Referral of list No. 2 men
Records of Raber-Kief show the following carpenters, who were list No. 2 men,
to have been employed on the Mona-Vista project from the latter part of June 1963
to September 10, 1963:
June 21 (Friday) : Jacob Morken
June 26 (Wednesday): Ashjarn Saelvik 2
July 2 (Tuesday) : Narvald Osnes
July 3 (Wednesday) : Torstein Nicolaysen 3
Records of Raber-Kief show that the following carpenters, who were list No. 2
men, were employed on the Adak project from its inception to September 10, 1963:
June 21 payroll: Hal Vosberg, foreman 4
August 4 payroll: Ivan E. Wood a
August 18 payroll: William T. O'Shaughnessy, foreman
August 25 payroll: Jay S Wymer
Payroll records of Raber-Kief show that at all times material herein the ratio of
list No. 2 men to list No. 1 men was at maximum or exceeded maximum. The
turnover of employees resulted in frequent changes in the ratio. The termination
or quitting of list No. 1 men could cause a ratio-excess of list No. 2 men; also the
records indicate that on occasions extra list No. 2 men were employed causing a
ratio imbalance at least temporarily. This could be from erroneous calculations of
the ratio by Respondent due to the fluidity of the employment situation and require-
ments, or due to laxity by Respondent in adherence to the seven to one ratio, or due
to knowledge by Respondent of impending employment of, or changes in status of,
list No 1 men, which would then bring the ratio into balance.
The records do not indicate at any time a ratio shortage of list No. 2 men in the
employ of Raber-Kief. From this there appears to have been no opening for DiBoff.
But, as indicated above, some list No. 2 men were referred. What was the basis for
their referral in preference to DiBoff9
Until list No. 1 is exhausted, a list No. 2 man can get employed only upon specific
request of an employer and then only provided the ratio is not exceeded. It can
then be concluded, in absence of evidence to the contrary, that the list No. 2 men
named above were specially requested by Raber-Kief. There is no testimony regard-
ing the circumstances surrounding the employment of Morken, Saelvik, and Free-
berg on the Monta-Vista project nor on the four list No. 2 men hired on the Adak
job. The fact that Saelvik worked only 2 days, coupled with Superintendent Wood-
ward's testimony that some unnamed carpenters referred were not competent, and
coupled with the continued referral of carpenters, suggests that Saelvik was one of
the incompetent referrals; and thus in turn suggests that he may not have been
requested by the Employer. But such conclusions are mere conjectures and not
based on adequate evidence. Counsel for General Counsel did not identify during
the hearing the list No. 2 men allegedly referred in preference to DiBoff (except
Osnes and Nicolaysen). He indicated that an analysis of the payroll record of
Raber-Kief and the exhibits showing the list placement of carpenters would reveal
list No 2 men employed by Raber-Kief and their periods of employment. This is
quite true, but the payroll records do not reveal the circumstances surrounding the
employment of these men. No evidence was elicited from Raber-Kief or the employ-
ees involved or from Respondent on this matter, and Respondent, not being informed
as to the names of the carpenter allegedly referred in preference to DiBoff, offered
no testimony on this matter. Two of the list No. 2 men on the Adak job were fore-
men and a third, Wood, had worked all season for Raber-Kief on the Monta-Vista
job. These facts taken from the payrolls would "indicate" an employer preference
2 Saelvik worked only 2 days and was paid off. This was at a time when carpenters
were needed and being hired
3 Counsel for General Counsel contends that Donald E. Freeberg, employed on August 20'
as a carpenter-floorman, was a list No 2 carpenter None of the records in evidence
reveal his list placement, and Powell, who was interrogated on the matter, did not know
which list Freeberg was on I cannot conclude from Powell's general testimony that in
the latter part of July he exhausted his No 1 list and had to use list No. 2, that there-
fore Freeberg was on list No 2, as counsel for General Counsel contends
4I find that the payroll classification of "carpenter 4M" stands for carpenter foreman
6 Wood was employed on the Monte-Vista project from early June through July 27,
1963 ; thus, apparently, was transferred from one project to the other
7 8 9-7 3 0-6 6-v o f 15 2-4 2
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for these men over DiBoff. As to the fourth, Wymer, employed during the August
25 payroll, there being no testimony as to the circumstances of his employment, I
cannot conclude that this referral was discriminatory as to DiBoff. The same is true
as to Jacob Morken and Ashjarn Saelvik employed June 21 and 26, respectively, on
the Monta-Vista job.6
Evidence was adduced concerning the referral and employment of Osnes and
Nicolaysen, and this is set forth in a prior paragraph. Powell had tried to get
Woodward to employ a list No. I carpenter, Hansen, on the occasion; but he was
rejected primarily because of his physical limitations due to his age. Woodward
then urged and bargained with Powell to dispatch two young carpenters, Osnes and
Nicolaysen. Finally, Powell did send Osnes, and then after a specific request for
Hansen and Nicolaysen, they were dispatched the next day.
Counsel for General Counsel contends that Raber-Kief's request for DiBoff was
still pending. Respondent contends that on the occasion under consideration, Wood-
ward made no request or mention of DiBoff and that the request was for Osnes and
Nicolaysen. Woodward testified that he did not again specifically request DiBoff after
the occasion when he took DiBoff, Osnes, and Nicolaysen to the union hall for refer-
rals, because DiBoff had stated to him that he could not get a referral slip. Wood-
ward wanted to employ DiBoff, Osnes, and Nicolaysen; he did not prefer any one of
the three over the others.
I am of the opinion that counsel for General Counsel has not sustained the bur-
den of proof that DiBoff was discriminatorily refused a referral to a Raber-Kief
project from about June 23 to September 10, 1963. The selections of Osnes and
Nicolaysen were at Woodward's insistence.
F. DiBoff not referred to other projects
In June or July 1963, Frank Skinner, superintendent for Ramstad Construction
Company, told DiBoff to get a referral slip and he would employ him. DiBoff
returned later and told Skinner that he could not get a dispatch. Skinner did not
make a personal request to the union hall for DiBoff.
In August 1963, after Skinner had left the employ of Ramstad, and was a super-
visor for Wedekind Company, he had a discussion with Powell regarding DiBoff
one evening in a night club. He asked Powell. "What's the deal with Ivan DiBoff?"
Powell answered, "Well, he is on List No. 2." Skinner stated, "Well, he came down
and asked me for a job and I told him if he could get straightened out with the
Union I would put him to work." Roberts answered, "I can't put him to work, we
have men out there waiting for work"; and Powell added, "I don't give a damn if
he ever goes to work." Powell also told Skinner that on a project on St. Paul Island
some years ago, DiBoff had let some laborers do carpenters' work.?
DiBoff had also requested Skinner to give him a job with Wedekind, which Skin-
ner had agreed to do if DiBoff got a referral.
The record is incomplete as to whether there has been a discriminatory refusal to
refer DiBoff to jobs with Ramstad Construction Company or Wedekind Company.
There is no showing as to the existing ratio of list No. 1 men to list No. 2 men, nor
as to the referral of list No. 2 men during the time involved.8
G. Powell's resentment toward DiBoi
When Powell removed DiBoff's name from list No. 1 and placed it on list No. 2,
DiBoff was very displeased and strongly expressed his displeasure to Powell and to
others. Powell endeavored to explain to him the reason for his action, but DiBoff
was not inclined to accept or concur in the explanation. Powell readily admitted
that DiBoff made him "temporarily angry," and stated, "I'm not very happy with
DiBoff because of the way he insulted me all summer and because of the length to
which he went to get dispatched." Financial Secretary Lannert stated, "I thought
they would come to blows several times there."
6 The referral of Saelvik on June 26, in particular-so soon after the refusal to refer
DtBoff, Osnes, and Nicolaysen-arouses speculation as to the circumstances surrounding
his referral (how and why it happened)
7In the summer of 1960 DiBoff had asked laborers to move or carry some lumber or
material for him; he was reprimanded at the time by Powell who stated that once lumber
and other material used by carpenters are delivered to a project, only carpenters can
move it.
s The complaint does not allege a refusal to refer to any employer other than Raber-
Kief and its joint venturers, which had two construction projects, Monta-Vista and Adak ;
but evidence was also adduced relating to Ramstad and Wedekind.
MALONE KNITTING COMPANY 643
In addition to the statement of Powell to Skinner quoted above, Powell also dur-
ing the time involved stated to the financial secretary of Respondent (in the summer
of 1963), Peter Lannen, that "he wasn't going to dispatch the old son-of-a-bitch
[DiBoff] he was on List No. 2, regardless."
In July 1963 DiBoff registered a complaint with the general offices of the United
Brotherhood of Carpenters and Joiners of America in Washington, D.C., concerning
Respondent's refusal to give him a referral.
In 1960, as previously mentioned, while DiBoff was employed on St. Paul Island,
Powell had an occasion to criticize him for using laborers to do carpentry work.
In June 1963 an election was held for the position of business agent for Respond-
ent. Powell, who occupied the position, was a candidate for reelection. The election
was rerun in August 1963, after an appeal was taken to the general offices of the
Union that the first election had not been properly conducted. In both instances
Powell prevailed. DiBoff was one of the union members who campaigned strongly
against Powell.
H. Conclusion
A union representative administering a hiring hall must at all times maintain
objectivity and not permit himself to be influenced in the performance of his duties
by his emotional reactions to job applicants; he has a grave responsibility in this
regard. It appears that Powell was in fact annoyed by DiBoff's reaction to the
change in his list placement and to his failure to get a referral, and Powell expressed
his feelings to Frank Skinner that he "didn't give a damn if he [DiBoff] ever goes to
work," and similarly to Financial Secretary Lannen. But, in the operation of a
nondiscriminatory hiring hall, Powell was under just as much an obligation not to
discriminate in favor of DiBoff as not to discriminate against him. Some of the
members of Respondent were desirous of granting him "special dispensation" for
referral, because of his age and long union membership. The issue to be resolved
first is whether there has been a discriminatory application of the hiring hall proce-
cedure in the case of DiBoff.
I cannot conclude that counsel for General Counsel has sustained the burden of
proof that the referral of any of the list No. 2 men mentioned herein constituted a
discrimination against DiBoff; and there is no evidence of any other occasion on
which DiBoff could have been referred in accordance with the ratio requirements of
the exclusive hiring agreement. Accordingly, I find that there has been no violation
of Section 8(b)(1)(A) or (2) by Respondent, and I shall recommend that the com-
plaint be dismissed.
CONCLUSION OF LAW
1. Raber-Kief, Inc., and the Alaska Chapter of the Associated General Contractors
of America, Inc., are each employers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. United Brotherhood of Carpenters & Joiners of America, Local 1281, AFL-
CIO, Respondent herein, is a labor organization within the meaning of Section 2(5)
of the Act.
3. Respondent has not engaged in any unfair labor practice as alleged in the
complaint.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed.
Malone Knitting Company and International Ladies Garment
Workers' Union , AFL-CIO. Case No. 1-CA-4668. May 17,
1965
DECISION AND ORDER
On February 1, 1965, Trial Examiner Sidney Lindner issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
152 NLRB No. 68.