# Petition — Local 394, Laborers' International Union v. National Labor Relations Board

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 454 U.S. 861

## Text

Sb-88 We

phir JUL 6 1981

Supreme Court of the Hrrited States “°°

+

October Term, 1980

LOCAL 394, LABORERS INTERNATIONAL UNION OF
NORTH AMERICA,

Petitioner,
VS.
NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT

LEIBOWITZ AND CORRADINO, P.C.
Attorneys for Petitioner
134 Evergreen Place
East Orange, New Jersey 07018
(201) 676-3100

5174 LUTZ APPELLATE PRINTERS, INC.
NY (212) 840-9494 © (516) 222-1606 © (914) 683-9363
NJ (201) 257-6850 © PA (215) 563-5587 © DC (202) 783-7288 © MA (617) 227-1133

QUESTIONS PRESENTED

I. Whether a settlement agreement accepted by the Union,
Region 22 of the National Labor Relations Board, and both
charging parties by their attorney should have been accepted
under all the circumstances as consistent with public policy and
Board policy?

II. Within the context and above circumstances of an
exclusive hiring hall referral system, is the National Labor
Relations Board confined to determining whether discrimination
has in fact been practiced?

III. Whether the National Labor Relations Board has met
its statutory burden in order to support its findings that the
Union violated Sections 8(b)(1)(A) and (2) of the National
Labor Relations Act?

ii

TABLE OF CONTENTS

Page
Questions Presented .......cccccccccccccccccvcccesccees i
Table of Contents ..cccccccccccccccccccsccccccscccvese ii
Table Of Citations .ccsccccccccccccvescvecsccccccvccese iii
Opinion Below ...ccccccccccccccsccccscccvccscscvvcces 2
FOIOUIOD: cc vcccbicevcccecivsccvcverecvocscoccceceecs 2
Statutes and Administrative Provisions Involved ......... 2
Seatomment Of the Case .ccccccccccvcccccscccvccccsvesces 2
Reasons for Granting the Writ:
I. A settlement agreement accepted by the Union,
Region 22 of the NLRB, and both charging parties
by their attorney, should have been accepted under
all the circumstances as consistent with public policy
ONG Board POUCY. 2 occccceccccvcccccccccceccecs 5
II]. Within the context and above circumstances of an
exclusive hiring hall referral system, the NLRB is
confined to determining whether discrimination has
im fact Beek practiodd.::..reccocscooscscscsececes 8

III. The NLRB has not met its statutory burden in order
to support its findings that the Union violated
Sections 8(b)(1)(A) and (2) of the National Labor
ET LEVER TEAL T OVATE TERETE eee 10

iti

Contents fete
Comclusiof .ccccccccccvccccccvreccsccnsccveccescceeses 12
TABLE OF CITATIONS
Cases Cited:
Alexander v. Gardner-Denver, 415 U.S. 36 (1974) ...... 6

Autura v. Robinson, 419 F. 2d 1197 (C.A. D.C. 1969) ... 6

Breckenridge Gasoline Co., 127 N.L.R.B. 1462 ........4.: ll
Cities Service Oil Co. v. Coleman Oil Co., Inc., 470 F. 2d 925

(Ist Cir. 1972), cert. denied, 411 U.S. 967 (1972) ..... 6
Farmer v. Carpenters, 430 U.S. 290 (1977) ...seeeeeeeee 8, 10

Farmers Co-Operative Gin Assn., 168 N.L.R.B. No. 64... 7

George Ryan Co., Inc. v. N.L.R.B., 609 F. 2d 1249 (7th Cir.

ISTE)

All of the relief agreed to in settlement discussions was
sufficient to remedy the alleged unfair labor practices, viz.,
reformation or adoption of a hiring hall system which satisfied
the NLRB’s Regional Director. The charging parties agreed to
look elsewhere for any personal compensatory damages (see fn.
1). And even though Abdunafi changed his mind and refused at
the 11th hour, to execute the settlement, Section 10134.2(b) of
the Manual provides:

“Unilateral settlement: Where the respondent
agrees to take action which will effectuate the
purpose of the Act, an agreement may be
consummated without the participation of the

charging party.”

Accordingly, as the Union agreed to take all necessary
action to effectuate the purposes of the Act, the settlement
should have been accepted. The proposition is simple. The
Union acted in good faith and the region concluded that the
settlement agreement would effectuate the purpose of the Act.
Abdunafi plainly acted in bad faith—but with the result that the
general counsel of the Board withdrew the settlement agreement
rather than accepting it unilaterally. See Leeds & Northrup
Company v. N.L.R.B., 357 F. 2d 527 (3rd Cir. 1966). This was,
of course, contrary to normal Board procedure which expresses
policies encouraging settlements. Farmers Co-Operative Gin
Assn., 168 N.L.R.B. No. 64. In the context of the foregoing it
was a rank abuse of discretion.

It is well established that the Board in administering the Act
is acting on behalf of the public interest and not in vindication
of private rights. Jack C. Robinson d/b/a Robinson Freight
Lines, 117 N.L.R.B. 1483, 1485. Thus, in George Ryan Co., Inc.
v. N.L.R.B., 609 F. 2d 1249, 1252 (7th Cir. 1979), the court
stated:

“In enforcing the Act the Board is not
providing a ‘private administrative remedy’ but is
acting in the public interest to prevent unfair
labor practices and ensure overall industrial
harmony through efficient use of Board
resources. Private right must give way when the
Board reasonably determines that the purpose of
the Act is best served by settlement.” (Citations
omitted.)

The Board, in the instant matter, initially determined that
“the purposes of the Act are best served by settlement.” Its
breach of the settlement agreement is contra to the public and
statutory policy of favoring conciliatory voluntary settlements.

Within the context and above circumstances of an exclusive
hiring hal! referral system, the NLRB is confined to determining
whether discrimination has in fact been practiced.

Whether a hiring hall practice is discriminatory and
therefore violative of the National Labor Relations Act, is a
determination Congress has entrusted to the NLRB, however,
the mere fact that the Union operates an exclusive hiring hall for
employment referral is not per se violative of the Act. Cf,
Farmer v. Carpenters, 430 U.S. 290, 292 (1977). It is not an
unfair labor practice to incorporate in a collective bargaining
agreement a requirement that casual employment shall %e
secured solely through a dispatching service maintained by the
union, and to enforce that requirement by denying casual
employment to a worker except in proper referral. Radio
Officers Union v. N.L.R.B., 347 U.S. 17 (1954). “It may be that
hiring halls need more regulation than the Act presently
affords .... It may be that the very existence of that hiring hall

9

encourages Union membership. We may assume that it
does.... But... the only encouragement or discouragement
of union membership banned by the Act is that which is
‘accomplished by discrimination.’... Where. . . Congress has
aimed its sanctions only at specific discriminatory practices, the
Board cannot go f*rther and establish a broader more pervasive
regulatory scheme.” Local 357, Teamsters v. N.L.R.B., 365 U.S.
667, 675 (1961).

It is well established that “a reviewing court is not barred
from setting aside a Board decision when it cannot
conscientiously find that the evidence supporting that decision is
substantial, when viewed in the light that the record in its
entirety furnishes, including the body of evidence opposed to the
Board’s view.” Universal Camera Corporation v. N.L.R.B., 340
U.S. 474, 488 (1951) “{SJubstantial evidence is more than a
scintilla, and must do more than create a suspicion of the
evidence or the fact to be established. It means such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion...” N.L.R.B. v. Columbia Enameling
and Stamping Co., 306 U.S. 292, 300 (1939).

The record below is replete with findings by the
administrative law judge and adopted by the Board that do not
meet the above-stated traditional standard of review demanded
by Section 10(e) of the Act, 29 U.S.C. §160(e). The
administrative law judge's decision is based almost entirely upon
events which occurred almost exclusively either prior to the
§$10(b) period or subsequent to the issuance of complaint.

The Supreme Court has long held that a finding of a
violation of Section 8(b)(2) requires an affirmative showing of a
motivation of encouraging or discouraging union status or
activity and “A union . . . is privileged to make decisions which
are reasonably calculated to further the welfare of all the

10

employees it represents, non-union as well as union, even though
a foreseeable result of the decision may be to encourage union
membership. Local 357, Teamsters, supra, Mr. Justice Harlan
concurring.

A reading of Radio Officers, Local 357, Teamsters and
Farmer v. Carpenter, supra, would indicate that the Court's
rationale is that a union may refer individuals on the subjective
basis of financial need and even though those individuals so
aided will be more inclined to favor the union, this would not
appear to be necessarily violative of the Act, for it is not, in and
of itself, discriminatory in nature.

Independent discriminatory motivation in addition to an
alleged \ack of objective criteria and standards in hiring hall
referral system are necessary for a Section 8(b)(1) and (2)
violation. Cf., Local No. 324, International Union of Operating
Engineers, 226 N.L.R.B. 587 and Local Union No. 174,
Teamsters, 226 N.L.R.B. 690.

The NLRB has not met its statutory burden in order to
support its findings that the Union violated Sections 8(b)(1)(A)
and (2) of the National Labor Relations Act.

In reckless disregard for the proscription and due process
protections contained in §10(b) of the Act, the Board rendered a
decision which indicts petitioner's referral procedure based upon
events which occurred almost exclusively either prior to the
10(b) period or subsequent to the issuance of complaint.

The Board’s decision is an undeniable attempt to avoid the
proscription of §10(b) and to provide an improper and
prejudicial basis to support a preconceived conclusion of

liability. The broad inquisition is inconsistent with the policy of
10(b) which is “to bar litigation over past events ‘after records
have been destroyed, witnesses have gone elsewhere, and
recollections of the events in question have become dim and
confused,’ HR Rep. No. 245, 80th Cong., Ist Sess. p. 40 and of
course to stabilize existing bargaining relationships.” Local 1424,
Machinists (Bryan Mfg. Co.) v. N.L.R.B., 362 U.S. 411, 419
(1960).

Although events outside the 10(b) period cannot be used to
transform otherwise lawful acts into illegalities, it is concedely
proper to use pre-10(b) evidence as background material to shed
light upon the true nature of actions undertaken within the 10(b)
period. Local 1424, Machinists v. N.L.R.B., 362 U.S. at 416-17.
But the availability of time-barred evidence for background
purposes does not permit the Board to give “independent and
controlling weight to such evidence.” News Printing Co., 116
N.L.R.B. 210, 212 (1956).

Evidence within the 10(b) period must be “substantial” in
the sense of “significant” or “not inconsiderable” if the reference
to time-barred evidence is to be permissible background
evidence. Breckenridge Gasoline Co., 127 N.L.R.B. 1462, 1465 (the
trial examiner's decision was invalid because it was “inescapably
grounded on events predating the limitation period”); Wine &
Liquor Salesman Local 195 v. N.L.R.B., 452 F. 2d 1312, 1319
(D.C. Cir. 1971) [pre-10(b)] conduct may not be used as
“background” for the purpose of augmenting a finding or
employer “assistance” to employer “domination” under §8(a)(2).
See also, N.L.R.B. v. District 30, U.M.W., 422 F. 2d 115 (6th
Cir. 1969), cert. denied, 398 U.S. 959 (1970) [union may not be
pre-10(b) events to establish an employer ULP as a defense to a
§8(b)(7)(A) charge].

12
CONCLUSION

For all of the foregoing reasons, this Court should grant a
writ of certiorari.

Respectfully submitted,

G. DOLPH CORRADINO
LEIBOWITZ and CORRADINO, P.C.
Attorneys for Petitioner

ORDER FROM THE DISTRICT OF COLUMBIA CIRCUIT
COURT DATED APRIL 7, 1981

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1980
No. 80-1106

Loca! 394, Laborers’ International Union of North America,
AFL-CIO, Petitioner | |

Vv.
National Labor Relations Board, Respondent
Wakil Abdunafi, Intervenor
FILED APR 7, 1981
PETITION FOR REVIEW AND CROSS-APPLICATION
FOR ENFORCEMENT OF AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD

Before: McGOWAN, Chief Judge, ROBINSON, Circuit Judge
and NORMA HOLLOWAY JOHNSON*, United States
District Judge for the District of Columbia

JUDGMENT

This cause came on to be heard on the petition for review
and cross-application for enforcement of an order of the

* Sitting by designation pursuant to Title 28 U.S.C. §292(a).

2a

Order

National Labor Relations Board and was argued by counsel for
petitioner and respondent, respectively, and by intervenor as
attorney pro se. While the issues presented occasion no need for
an opinion, they have been accorded full consideration by the
Court. See Local Rule 13(c). On consideration of the foregoing,
it is

ORDERED AND ADJUDGED by the Court, that the
order of the National Labor Relations Board under review is
hereby affirmed on the basis of the decision of the Board, Local
394, Laborers’ International Union of North America, 247
N.L.R.B. No. 5 (Jan. 4, 1980).

Per Curiam

For the Court

s/ George A. Fisher
George A. Fisher
Clerk

3a

DECISION OF THE NATIONAL LABOR RELATIONS
BOARD 247 N.L.R.B. NO. 5 DATED JANUARY 4, 1980

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD

LOCAL 394, LABORERS’ INTERNATIONAL UNION OF
NORTH AMERICA, AFL-CIO

and

WAKIL ABDUNAFI, an Individual

and

BUILDING CONTRACTORS ASSOCIATION OF NEW
JERSEY

Party to the Contract
Case 22-CB-3003
DECISION AND ORDER

On March 16, 1979, Administrative Law Judge William F.
Jacobs issued the attached Decision in this proceeding.
Thereafter, Respondent filed exceptions and a supporting brief,
the General Counsel filed exceptions and a supporting brief, and
the Charging Party filed an answering brief to Respondent's
exceptions.

Pursuant to the provisions of Section 3(b) of the National
Labor Relations Act, as amended, the National Labor Relations
Board has delegated its authority in this proceeding to a three-
member panel.

4a

Decision

The Board has considered the record and the attached
Decision in light of the exceptions and briefs and has decided to
affirm the rulings, findings,' and conclusions? of the

1. Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board’s established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.

In addition, Respondent contends that the Administrative Law Judge's
credibility resolutions, factual findings, and legal conclusions are the result of
bias. After a careful examination of the entire record, we are satisfied that this
allegation is without merit. There is no basis for finding that bias and partiality
existed merely because the Administrative Law Judge resolved important
factual conflicts in favor of the General Counsel's witnesses. As the Supreme
Court stated in N.L.R.B. v. Pittsburgh Steamship Company, 337 U.S. 656, 659
(1949), “{T]otal rejection of an opposed view cannot of itself impugn the
integrity or competence of a trier of fact.”

2. In adopting the Administrative Law Judge's Decision in this case, we
do not rely upon his statement in the penultimate paragraph of sec. I!1, B,2.(a)
that Respondent's failure to keep written records concerning the operation of
its exclusive hiring hall constitutes a per se violation of Sec. 8(b)(1)(a) and (2)
of the Act. Rather, we find that Respondent violated Sec. 8(b)(1)(A) and (2) of
the Act by operating its exclusive hiring hall without any objective criteria or
standards for the referral of employees. In finding the violation, one of the
factors we rely upon is that Respondent used no written standards or rules for
referrals, thus leaving the operation of its hiring hall within the unbridled
discretion of a few union officials: however, this is merely one of several factors
which we evaluated in determining whether or not objective standards had
been used. While written rules or standards for the referral of employees and
written records showing the actual referrals made are certainly relevant
evidence as to whether Respondent used objective standards, it is conceivable
that a union could prove by means of other evidence that it had consistently
used objective standards for the referral of employees without having

(Cont'd)

Sa
Decision

Administrative Law Judge and to adopt his recommended
Order, as modified herein.’

ORDER

Pursuant to Section 10(c) of the National Labor Relations
Act, as amended, the National Labor Relations Board adopts as
its Order the recommended Order of the Administrative Law
Judge, as modified below, and hereby orders that the
Respondent, Local 394, Laborers’ International Union of North
America, AFL-CIO, Elizabeth, New Jersey, its officers, agents,
and representatives, shall take the action set forth in the said
recommended Order, as so modified:

1. Substitute the following for paragraph I(d):

(Cont'd)

established any written rules or kept any written records. Therefore, we would
not find that a union's failure to keep written records or to use written rules in
referring employees would, standing alone. constitute a violation of Sec.
8(b 1A) and (2) of the Act. See Local Union No. 174, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Independent (Totem Beverages, Inc.), 226 NLRB 690, 700 (1976).

3. Respondent has excepted to the Administrative Law Judge's use of the
broad cease-and-desist language in his recommended Order. For the reasons
set forth in Hickmott Foods Inc., 242 NLRB No. 177 (1979), we find that a
broad order is unwarranted under the facts of this case. Accordingly, we shall
modify the Administrative Law Judge's recommended Order by inserting the
narrow “in any like or related manner” remedial language.

As noted above, we do not find that Respondent's failure to maintain
written standards and records concerning the operation of its hiring hall,
standing alone, constitutes a violation of Sec. 8(b)(1)(A) and (2) of the Act. We
do, however, agree with the provisions in the Administrative Law Judge's
recommended Order requiring Respondent to maintain comprehensive records
in the future concerning the operation of its hiring hall for remedial purposes.

6a

Decision

“(d) In any like or related manner restraining or coercing
employees or applicants for employment in the exercise of the
rights guaranteed them by Section 7 of the Act.”

2. Substitute the attached notice for that of the
Administrative Law Judge. Dated, Washington, D.C. January 4,
1980.

John H. Fanning, Chairman

Howard Jenkins, Jr., Member
John A. Penello, Member

NATIONAL LABOR
RELATIONS BOARD

(SEAL)
APPENDIX
NOTICE TO MEMBERS

Posted by Order of the National Labor Relations Board
An Agency of the United States Government

After a hearing at which all parties had the opportunity to
present evidence and cross-examine witnesses, the National
Labor Relations Board has found that we violated the National
Labor Relations Act, as amended, and has ordered us to post
this notice. We intend to abide by the following:

WE WILL NOT maintain and operate our exclusive
job-referral system without the use of objective criteria
or standards or in a discriminatory manner.

7a

Decision

WE WILL NOT discriminatorily fail or refuse to
refer Wakil Abdunafi or Adolph Farmer to jobs through
our exclusive job-referral system.

WE WILL NOT in any like or related manner
restrain or coerce employees or applicants for
employment in the exercise of the rights guaranteed them
by Section 7 of the Act.

WE WILL make whole Wakil Abdunafi and
Adolph Farmer for any loss of earnings as a result of our
discrimination against them, with interest.

WE WILL maintain and operate our exclusive job-
referral system in a nondiscriminatory manner based
upon objective criteria or standards.

WE WILL initiate and maintain a comprehensive
recordkeeping system which will fully disclose the basis
upon which each referral is made, and make such records
available to job applicants to enable them to determine
for themselves that their referral rights are protected and
that referrals are made in a fair and impartial manner.

LOCAL 394, LABORERS’
INTERNATIONAL UNION OF
NORTH AMERICA, AFL-CIO

(Labor Organization)

By

(Representative) (Title)

Decision

This is an official notice and must not be defaced by
anyone.

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. Any questions concerning this
notice or compliance with its provisions may be directed to the
Board’s Office, Peter D. Rodino Jr. Federal Building, Room
1600, 970 Broad Street, Newark, New Jersey 07102, Telephone
201-645-3652.

9a

Decision
JD-105-79
Newark, NJ

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

LOCAL 394, LABORERS’ INTERNATIONAL UNION OF
NORTH AMERICA, AFL-CIO

and
WAKIL ABDUNAFI, An Individuai
and

BUILDING CONTRACTORS ASSOCIATION OF NEW
JERSEY

Party to the Contract
Case No. 22-CB-3003

George H. Abrams, Esq.
of Newark, NJ, for the
General Counsel.

James R. Zazzali, Esq.
(Zazzali, Zazzali & Whipple),
of Newark, NJ, for Local 394

Jose Rivera, Esq.,

of Brooklyn, NY

for Charging Party, Adolph Farmer
Wakil Abdunafi of Newark, NJ,
pro se.

10a

Decision
DECISION

Statement of the Case

WILLIAM F. JACOBS, Administrative Law Judge: This
case was tried before me on December 8, 1977 and January 8-11,
18-19 and 26-27, 1978 at Newark, New Jersey. The charge
was filed by Wakil Abdunafi, an individual, on July 1,
1975. The complaint issued January 14, 1977 alleging that Local
394, Laborers’ International Union of North America, AFL-
CIO, herein called the Union or Respondent Union, violated
Section 8(b)(1)(A) and 8(b)(2) of the Act by referring job
applicants solely on the basis of subjective, irrelevant unfair and
invidious standards and criteria, and by failing and refusing to
refer Wakil Abdunafi and Adolph Farmer for employment
through the operation of its exclusive hiring hall because they
engaged in intra-union activities in opposition to the Union's
leadership and in retaliation for their having filed charges and
given testimony under the Act. In its answer,' the Union
admitted certain of the allegations contained in the complaint
but denied that it engaged in the alleged unfair labor practices.

Representatives of all parties were present and were given
full opportunity to participate in the hearing. Briefs were
subsequently filed by Respondent and General Counsel. Based
upon the entire record including my observation of the witnesses
and after due consideration of oral argument and briefs
submitted, | make the following:

1. The answer was amended at the hearing in order to admit certain
allegations relating to jurisdiction and agency.

Decision
Findings of Fact

I. Jurisdiction

Building Construction Association of New Jersey (BCA) is
a corporation duly organized under the laws of the state of New
Jersey, with its principal offices located in the State of New
Jersey and its member-employers likewise engaged in the
building and construction industry in the State of New Jersey,
and in other states of the United States. During the 12 month
period immediately preceding the issuance of the complaint,
member-employers of the BCA provided and performed
building and construction services valued in excess of $50,000
outside the State of New Jersey and received, for use at their
New Jersey jobsites, during the same period of time, materials
valued in excess of $50,000 from outside New Jersey. The
complaint alleges, the answer admits? and I find that BCA is an
employer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.

Il. The Labor Organization
The complaint alleges, the answer admits, and I find that
the Union is, and has been at all material times herein, a labor
organization within the meaning of Section 2(5) of the Act.
III. The Unfair Labor Practices

A. Issues

The issues, as well framed by the allegations of the
complaint and answers thereto, are as follows:

2. A motion to amend the answer to admit the allegations dealing with
jurisdiction was granted during the hearing.

12a
Decision

1. Whether the Union maintained and operated on behalf
of the employer-members of BCA an exclusive job referral
system whereby all laborers to be employed by employer-
members at construction sites located within the Union's
jurisdiction, must be referred to them by the Union.

2. Whether, granting the Union maintained and operated
such an exclusive job referral system, it selected for referral and
referred applicants for jobs on the basis of solely subjective,
irrelevant, unfair and invidious standards and criteria without
the use of any objective criteria such as records, lists or rosters
and whether the use of solely subjective criteria is per se violative
of the Union's duty to treat job applicants fairly and impartially.

3. Whether the Union has failed and refused to refer Wakil
Abdunafi to jobs through its exclusive hiring all in retaliation
for his engaging in protected concerted activities including his
having filed internal charges against the Union's leadership and
charges with the National Labor Relations Board and the Equal
Employment Opportunity Commissior in violation of Section
8(b)(1)(A) and (2) of the Act.

4. Whether the Union has failed and refused to refer
Adolph Farmer to jobs through its hiring hall in retaliation for
similar activities.

B. Facts
1. The Exclusive Hiring Hall Arrangement
The Union operates a hiring hall in Elizabeth, New Jersey
from which it refers applicants for employment as laborers to

contractors including contractors who are members of the
Building Contractors Association of New Jersey. General

13a

Decision

Counsel contends that although the contract between the Union
and the BCA does not contain provisions for an exclusive hiring
hall referral system, the Union, at its Elizabeth, New Jersey
location operates or practices an exclusive hiring hall
arrangement. The Union denies this allegation.

In support of the exclusive hiring hall allegation, General
Counsel produced numerous witnesses including members of the
Union and cortractors familiar with the means by which
individuals are referred to jobs. Thus, Resbeth “Nick” Farmer,?
a member of the Union for 22 years, who has worked on various
construction sites as laborer, steward and foreman, testified as to
how hiring was and is done. He stated that when laborers are
needed on a job, the foreman tells the steward who then calls the
Union Hall and advises John Riggi, the business manager,‘ as to
the number of laborers needed, as well as any special
qualifications, if any, which may be required of them. Riggi, or
one of his two assistants in his absence, then gives any individual
he chooses referral slips and sends them to the jobsite where they
are hired. Nick Farmer testified that there is no way an
individual can obtain work as a laborer in the Union's
jurisdiction unless he obtains referral from the Union. Even
casually employed summer students must have referral slips and
be referred through the Union's hiring hall if they hope to obtain
employment. Farmer further stated that if a stranger should
come upon the work site and ask the steward for work without
first obtaining a referral slip, Farmer would have to call Riggi
and first obtain permission for the man to work before he is
given employment. Farmer, who has been working steadily over
the past several years as a laborer, steward or foreman, got each

3. Hereafter sometimes referred to as Nick Farmer.

4. Throughout all material times Riggi held this office.

I4a

Decision

job only after first obtaining a referral slip through the union
hall, and in his 22 years as a laborer he never obtained work
without first receiving approval from the hall. While employed
as a steward during this time, Farmer has had frequent occasion
to help friends and relatives obtain employment by asking
Riggi’s permission for them to work. If Riggi gave his
permission, they obtained employment. Through all of the years
that Nick Farmer has been employed in the laboring field he
never once attempted to place any person on a job without first
obtaining Riggi’s permission, and it was his understanding that
this was the procedure that had to be followed.

Ernest Gissendaner, a construction worker and member of
the Union for 16 or 17 years, testified that the procedure
followed to obtain employment consists of reporting to the
Union hiring hall early in the morning (shaping up) and waiting
for jobs to be called in from contractors. When a job is called in,
it is received in the office by Business Manager Riggi or one of
his assistants, who then comes out into the hall and calls the
name of, or points to, the man, to whom he chooses to give the
job. That man then goes into the office where he is given a
referral card to the job. Gissendaner testified that he never, in
his 16 or 17 years as a union member, or otherwise, went to a
job without a referral card or without first going through the
hiring hall procedure, as herein describeu.

Renious Edwards, a laborer and member of the Union for
30 years has worked regularly as a laborer, steward and foreman
over this period of time. Edwards testified that in order to get a
job, an individual must first go to the union hall and obtain a
referral slip from Riggi. No one has ever come on to one of
Edwards’ jobs without a referral from the Union, and in the 30
years that he has been a laborer, he has never gotten a job as a
laborer in the Union's jurisdiction without first being cleared

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through the Union's hiring hall. Similarly, Edwards testified that
it is Riggi who appoints stewards. When acting as steward on
jobs in the past, Edwards has requested permission from Riggi
to allow certain individuals to come on the job and his requests
have been granted. Conversely, Edwards has obtained
employment by having other stewards request permission of
Riggi to let Edwards go to work.

Jonathan Ruth, a member of the Union for 21 years has
served as shop steward a number of times. He testified that to
get a job in the Union's jurisdiction as a laborer, one must first
obtain a referral slip from the business manager to obtain
Riggi’s permission. For 21 years, according to Ruth, he has
obtained employment via this procedure and stated categorically
that unless this procedure is followed a man can not get a job.

Leo Charles, a construction worker and member of the
Union since 1951, testified that to obtain employment he reports
to the Union's hiring hall in the morning and when a job comes
in, the business agent calls him into the office, gives him a
referral slip and sends him to the job. During the past 5 years he
has worked fairly regularly, mostly as steward. As steward, one
of his duties is to check the people working on the job. He
testified that no one works without a referral slip, including
himself.

Similarly, testimony was adduced by General Counsel
through numerous other witnesses reflecting the complete
control of job referrals by the Union through its business
manager. The alleged discriminatees, Wakil Abdunafi and
Adolph Farmer testified at length on the subject. Adolph
Farmer, a construction worker and member of the Union for 30
years described how, in order to get a job, a laborer must
ordinarily report to the hiring hall to shape up. There he waits

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until Riggi comes out of his office and picks him to go to
whatever job is available. If a particular individual is chosen by
Riggi, he is called into the office where he is given a referral slip.
Farmer testified, as did the other witnesses, that when he served
as steward or foreman on the job, he would permit no one to
work on that job who did not have a referral slip. He, himself,
never in 30 years got a job without a referral slip and credibly
testified that he knew no one who did. As steward, however,
upon occasion, he has asked Riggi for permission to bring a
friend or relative on the job and, provided Riggi granted the
request, that individual could work. Abdunafi supported the
testimony of the other witnesses by stating that a man could not
get a job merely by appearing at a jobsite and asking for work
but had to have a referral slip from the business manager.
Moreover, Abdunafi stated that he had tried to obtain jobs
without going through the hiring hall procedure but was told at
the site that he had to go through the hall.’ He testified that it
was, however, possible for a steward to help an individual obtain
employment by going to the business manager and requesting
permission for that employee to go to work.

In addition to numerous individuals employed as laborers,
General Counsel also called as witnesses, a number of
contractors to testify concerning the hiring procedures as
practiced within the jurisdiction of the Union. Thus, Joseph F.
Fox, then project manager for the Brisco-Arace-Cunder job,
testified that when his company decides that it requires
additional laborers, it first determines the number and type
needed and then assigns to its foremen the job of procuring the
required help. The foreman then advises the steward of the
company’s needs and the steward obtains the required number

5. Documentary evidence in the record supports Abdunafi's testimony.

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and type of laborers through the Union’s hiring hall. Sometimes
the foreman will call the union hall directly. Fox stated that the
company never hires laborers off the street but only through the
union hall.

Clifford S. Stuart, Jr., vice president of Kramer Gunite,
Inc., was called by General Counsel and testified that in order to
obtain laborers within the jurisdiction of the Union, he does so
by requesting additional people through the steward. He stated
that the union hall is his only source of laborers and that the
company will not hire off the street. Even when the Company
brings its regular, steady laborer employees to work within the
jurisdiction of the Union, these people are first cleared through
the union hall. Over and above this nucleus of regular
employees, the company goes through the union hall for
additional help.

Albin F. Hook, Superintendent for Wilhems Construction
Company, testified that in order to obtain laborers, he calls the
Union's hiring hall and speaks with Riggi or another officer of
the Union and requests the number and type of men he needs for
the job. Later, the requested employees show up at the job with
referral slips and present themselves to the steward. If an
individual independently applies for work as a laborer at a
jobsite within the Union's jurisdiction, he is not hired but is
referred to the union hall. Even in cases of emergency, at night
or over the weekend, if Hook finds himself suddenly short of
laborers, he calls Riggi at home to have laborers sent to the
jobsite. On these occasions too, Riggi sends out the required
help.

As herein noted, General Counsel called numerous
members of the Union as well as contractors to support its
contention that the Union operated an exclusive hiring hall

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referral systern. Respondent on the other hand did not present a
single member witness to testify that he had obtained
employment as a laborer within the Union's jurisdiction without
either going through the hiring hall or obtaining the permission
of the business manager. | conclude that there were no witnesses
available who could truthfully offer such testimony. On the
contrary, John Riggi himself admitted that if a person wants to
work as a laborer within the jurisdiction of the Union, Riggi
would know it because that person would not get a job unless he
goes to the hall or checks with Riggi first. Riggi’s assistant, John
Corsentino also supported General Counsel's case in this area
when he testified that when a man is referred out to a job on
which he is steward, the man must have a referral slip before he
is permitted to work, and even regular employees of companies
coming into the area must be cleared by the Union before the
company calls them into the area to work on the job.

Respondent did not call any contractors, as did General
Counsel, to testify that they were free to hire laborers off the
street or from other sources to work at jobsites within the
jurisdiction of the Union. From Respondent's failure to do so, I
must conclude that no witnesses were available who would
truthfully testify that they were free to obtain laborers from
sources other than the Union for work at jobsites located within
the Union jurisdiction. Though Respondent called no witnesses
of its own for this purpose, counsel for Respondent thoroughly
cross-examined General Counsel’s contractor witnesses and
adduced certain testimony on the subject. Thus, Joseph Fox
testified that in addition to laborers referred by the Union, his
company also employs laborers who are members of a sister
local, Local 472, located in Essex County. However, Local 472
members are heavy construction laborers, rather than building
trades laborers as are the members of Respondent Union. Fox

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admitted that Local 472 laborers are hired through Local 472
rather than through Respondent Union. Moreover, when work
at the construction site is claimed by both Respondent Union
and Local 472, arrangements are worked out. If jurisdiction over
the work is clearly that of one or the other of the two unions,
employees are assigned to do the work who have been referred
by the Local who has jurisdiction over that particular work.

Other apparent exceptions to the exclusive referral system
as practiced by Respondent Union, as adduced through the
testimony of Joseph Fox, concerns the practice of Fox's
company of bringing into the Union's geographical jurisdiction
laborers from other locals, which the company has requested by
name, and who are apparently considered regular employees of
the company.® But inasmuch as members of Local 472 and of
other locals outside the geographical jurisdiction of Respondent
Union are, according to Fox, obtained through their respective
locals, this practice does not bear on the question of the
existence of an exclusive referral system arrangement at
Respondent Union's hiring hall since the tacit agreement
whereby Respondent Union recognizes the right of contractors
to bring into the Union geographical jurisdiction a certain
number of outside laborers, regular or otherwise, does not, at
least in this case, directly affect the rights of the individuals to
obtain fair and impartial treatment within the jurisdiction of the
Union, for the Union clearly has no control over the system of
referrals utilized at other hiring halls in other jurisdictions.

Finally, Fox testified that occasionally he has hired college
students without first going through the Union. These were

6. As noted above, John Corsentino, Riggi’s assistant, testified that even
regular employees must be cleared by the Union before being permitted to
come into Respondent Union's jurisdiction to work.

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Decision

summer employees, college students who were friends of Union
members or company officials or supervisors and who were
hired for short periods of time as favors to these individuals.
However, inasmuch as the Union had four foremen in addition
to stewards representing its interest on the Brisco-Arace-Cunder
job, concerning which Fox testified, these apparent exceptions
to the otherwise exclusive referral system clearly had the tacit, if
not the expressed consent of the Union, and do not undermine
the otherwise overwhelming evidence that the Union did, as
alleged, operate an exclusive hiring hall and referral system.

Clifford Stuart, Jr., also testified that his company similarly
employed laborers within the Union’s jurisdiction who were
obtained from other laborers’ locals. These are his regular
employees — the nucleus of his operation. According to Stuart,
his regular employees clear through the local business agent
when they come into the Union's jurisdiction. Like Fox, Stuart
testified that occasionally his company hires individuals within
the jurisdiction of the Union without going through the Union
— these are part-time employees hired for a day or two, a
nephew or son of the superintendent or of the local police chief
— done as a favor to the person involved. However, individuals
working for any longer period of time apparently must follow
the usual procedure.’ For reasons stated earlier with respect to
the Brisco-Arace-Cunder job, these exceptional | or 2 days
favor-hirings do not affect my finding of the existence of an
exclusive hiring arrangement.

In summary, I find that the Union operated an exclusive
hiring hall as alleged in the complaint. Though the current
contract does not provide for or establish an exclusive hiring

7. Two sons of a foreman brought up from Philadelphia to work as
laborers within the Union's jurisdiction later became members of the local.

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Decision

hall, in practice that is the type of arrangement under which the
parties have operated and still operate,* and the fact that there
may have been some infrequent and very special exceptions to
the exclusivity of the arrangement does not adversely affect the
finding herein under the total circumstances considered.

2. Referrals based upon solely subjective criteria
(a) Prior to September 1977

General Counsel contends and indeed the complaint alleges
that the Union has, in the operation of its exclusive hiring hall,
selected for referral and referred applicants for employment
based upon entirely subjective criteria and thereby violated its
duty, as the representative of all employees and applicants for
employment, to represent all of them fairly. The Union, via
stipulation at the hearing admits that its business manager, John
Riggi, utilized subjective criteria in deciding which applicants for
employment should be referred to which jobs.

General Counsel presented a number of witnesses who
testified to the fact that subjective criteria were used by Riggi in
deciding who should be referred to jobs. Thus, Wakil Abdunafi,
a member of the Union for 9 years, testified that Riggi simply
ose whomever he wished to work at a given time and referred
aim to a job by handing him a referral slip. He noted that it did
uw, Matter what time the individual arrived at the hiring hall and
that time of arrival was not a factor in Riggi’s decision to send a

8. Local Union No. 174, International Brotherhood oj; Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Indepenaent (Totem
Beverage, Inc.), 226 NLRB 690; Castleman and Bates, Inc. (Local 17, Sheet
Metal Workers International Association, AFL-CIO) 200 NLRB 477, 482.

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man to work. Prior to September 1977,° no one signed in at the
hall. Further, Abdunafi stated that no standards or guides were
utilized by the business manager or his assistants to help them
choose one applicant over another, nor were any records kept
which would enable these union officers to determine who had
been referred out in the past and perhaps thereby enable them to
choose on the basis of previous hours worked who should, in
fairness, get the next available job.

Adolph Farmer similarly testified that he knew of no
standards by which Riggi and his assistants were guided in
choosing applicants for referral; none were posted. During
Adolph Farmer's testimony a stipulation was received into the
record that, indeed, no records were kept at the hall to show
either where applicants had been referred on a given day or what
jobs were available for bidding or for referral. The testimony of
Abdunafi and Adolph Farmer were supported affirmatively, in
part or in toto, by all of the General Counsel’s witnesses that
testified regarding the subject. No one disputed their testimony
concerning the lack of written standards or records.

In summary, if General Counsel's witnesses cannot be said
to have adequately testified affirmatively that solely subjective
criteria were used, it can safely be concluded that any objective
criteria upon which choices for referral could be made were
entirely absent. Thus, reporting time at the hall was not
considered of importance for no sign in sheet was in use, and it
was credibly testified to that reporting time was clearly not a
visible consideration in Riggi’s decision as to his choice for
referral to specific jobs. Likewise, since no written records were
kept indicating who had been referred to what jobs in the past,

9. Certain reforms were undertaken in the referral system in September
1977 which will be treated separately, infra.

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Decision

and no records kept as to future available jobs and possible
referrals, no apparent objective attempt was being made to
distribute jobs either by number or by hours in such 4 manner as
to ensure a fair and impartial distribution of available work.
Riggi’s testimony concerning his keeping such information in his
head is rejected in light of the number of applicants, jobs and
hours of which he would have had to keep mental records over
the period of years in question.

The Union, in addition to admitting that no standards,
written guidelines or records of the type discussed supra, were
kept, further admits, in keeping with the allegation contained in
the complaint, that subjective criteria were the basis upon which
the Union made its referrals, and moreover contends that the use
of such subjective criteria is both proper and desirable under the
circumstances. In support of this contention, the Union relies
primarily on the testimony of John Riggi who described the
referral procedure as well as the subjective basis upon which he
ostensibly relied in deciding which applicants should be referred
to the jobs available. Riggi testified that contractors, through
their superintendent, or the foreman or steward on the job
would call the hiring hall to request the Union to send out a
certain number of men, sometimes particular types of
workmen.'® When Riggi received these calls he would look out
into the hall to see if there were any men present who could do
the job which was to be filled. If such a man were present in the
hall at the time, Riggi would call him in, hand him a referral slip
and send him to the job. In determining which individual best fit
the requirements of the job, Riggi testified that he used certain
subjective criteria. First, he considered the ability of the

10. Riggi also received information as to possible future jobs through the
utilization of Dodge Reports and through attendance at pre-job conferences
with contractors.

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individual to do the work involved. Riggi testified that he knew
which of the people at the hall could rig a scaffold, operate a
fork lift, power buggy or jackhammer or work with concrete.
Riggi emphasized that it was important that men capable of
performing such functions were sent to the job rather than men
“off the street” because “there’s a lot of human lives at stake
here.” A second basis for choosing a particular workman for a
job, according to Riggi, was the consideration of the status of
the workman’s situation with regard to the Welfare and Pension
Funds. To remain qualified for welfare and pension benefits, a
member must work a certain number of hours, making the
necessary contribution to these funds. If a particular member
were in danger of falling in arrears in his payments, Riggi would
give some consideration to this fact when making referrals.
Finally, Riggi testified, he gave consideration to an individual's
financial condition when making referrals. Thus, if an individual
should approach Riggi and advise him that he was in a financial
bind, that a mortgage payment was due, that he needed
something for his kids, or that he had a doctor t I to pay, Riggi
would give weight to such matters in determining who should be
referred.!!

Respondent takes the position that the use of such
paternalistic considerations in making referrals are not only
lawful, but when properly administered, in a non-discriminatory
manner, the use of such criteria is even desirable. General
Counsel counters that the use of subjective criteria such as those
described herein, places in the hands of the single individual
making the decisions based on such criteria, tremendous power,

11. As will be shown infra, Riggi gave no consideration to pension and
welfare payments or financial insecurity where Abdunafi was concerned
though Abdunafi’s financial problems were well known throughout the local,
including his having been evicted from his home.

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such as to necessarily have “a significant impact on the
membership as they realize what the consequences are of falling
into disfavor with Riggi.” General Counsel'? correctly points out
that Riggi decides himself whether a man has the necessary
qualifications to do a particular kind of job and personally
decides whether an individual’s adverse financial condition is
difficult enough to warrant special consideration in determining
whether he or someone else should ‘be referred to a particular
job. Discriminatory motivation aside, General Counsel argues
that Riggi is in no position to make the decisions he does on the
basis of the subjective criteria he utilizes because he does not
spend that much time at the work sites and does not actually
know how capable the individuals he sends out to the jobs are.
He may, as he testified, know the capabilities of the “old timers”
but admittedly does not know the abilities of the younger men,
much less those of the non-members who may utilize the hall’s
services sporadically or for the first time. Clearly, if it is known
by prospective applicants that Riggi chooses individuals for
referral, not on the basis of the man’s actual abilities, but rather
on the basis of how long and how well Riggi has been
acquainted with a man, it would follow that such prospective
applicants would consider it worthwhile not only to be a
member, in good standing, of the Union, but above all, a friend
of Riggi. Thus, assuming arguendo, as General Counsel argues,
that Riggi chooses individuals for referral on the basis of how
long and well he has known them and rightly or wrongly,
assumes on the basis of his acquaintanceship that the “old
timers” are better workmen than the younger union members or
“off the street” applicants, General Counsel’s logic does not
appear faulty in that granting all this to be true, it would tend to
drive individuals to curry favor with the business manager, and
to join and become members in good standing in the Union. The

12. General Counsel's brief p. 35.

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Decision

result would be, necessarily, enhancement of Riggi’s and the
Union's power.') But, again, assuming that a business agent uses
the criteria of “capacity to do the job” in referring individuals
and does so on the basis of his knowledge as obtained from
frequent visits to ¢he worksites and eyewitness observations of
individuals actually performing tasks, thereafter making
nondiscriminatory referrals on the basis of the knowledge he
obtains from these observations, such referrals would still be
subjective in that the business agent makes his determination
subject to his own perceptions as witnessed by him at the
jobsites. But are we to reject this kind of expertise simply
because the process is open to possible abuse? Or is it the better
course to permit the use of subjective criteria in referrals and
question only those cases where abuses occur, where
discriminatory motivation or where invidious considerations
appear to have tainted the fair and impartial character of the
system, be it based upon subjective criteria or otherwise.

Further, General Counsel also attacks the Union's, that is
Riggi’s utilization of such subjective considerations as an
individual's financial condition as a basis for determining
whether or not a specific individual should be referred to a
particular job rather than someone else. The theory is, of course,
that if the Union, through Riggi, chooses to aid one individual
rather than another because the former is more in need than the
latter, the result would again be to encourage union
membership. Showing favoritism toward those individuals who
cannot pay their mortgage or medical bills or are about to lose
their welfare or pension benefits surely encourages those
individuals to be loyal to the Union, but as stated in Local 357,
Teamsters, supra:

13. Local 357, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America v. N.L.R.B. 365 U.S. 667, 671.

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Decision

It may be that the very existence of the
hiring hall encourages union tmembership. We
may assume that it does. The very existence of
the union has the same influence. When a union
engages in collective bargaining and obtains
increased wages and improved working
conditions, its prestige doubtless rises and, one
may assume, more workers are drawn to it.
When a union negotiates collective bargaining
agreements that include arbitration clauses and
supervises the functioning of those provisions so
as to get equitable adjustment of grievances,
union membership may also be encouraged. The
truth is that the union is a service agency that
probably encourages membership whenever it
does its job well. But, as we said in Radio
Officers v. Labor Board, supra, the only
encouragement or discouragement of union
membership banned by the Act is that which is
“accomplished by discrimination.”

So, applying the Court's rationale to the instant case, onc can
reasonably conclude that although referring individuals on the
subjective basis of financial need will likely result in those
individuals so aided being more inclined to favor the Union, this
does not appear to be necessarily violative of the Act for it is
not, in and of itself, discriminatory in nature.

The record indicates that a certain factionalism has
manifested itself among the rank and file of individuals utilizing
the services of the hiring hall. Quite clearly a number of
individuals find the current union leadership lacking in many
ways. Others, however, have shown fierce loyalty to Riggi and

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Decision

his assistants. No doubt a number of the latter approve of the
use of such subjective criteria as financial need as one basis for
making referrals, and who can say it is wrong to award jobs to
those who need them most. Perhaps, by the nature of things,
those who are most friendly with the Union hierarchy, Riggi in
particular, are most likely to confide in him that they are in
particular need of work, while those who have found grounds
for disagreement will choose, for one reason or another, not to
approach him for special consideration. But granted that this is,
perhaps, the situation that exists, should a decision be rendered
that a union may not choose to refer out one man before
another because the former is under greater economic stress than
the latter. Should there be a blanket ruling that no such
subjective considerations be entertained. I think not, for the
Supreme Court has held that:

Where, as here, Congress has aimed its sanctions
only at specific discriminatory practices, the
Board cannot go further and establish a broader,
more pervasive regulatory scheme.'*

It would thus appear that the Board may not ban the use of all
subjective criteria in determining order of referral as long as
those criteria are non-discriminatory. However, above and
beyond the Supreme Court’s apparent proscription that the
Board has not been empowered to establish specific criteria for
the “proper” running of a hiring hall, there is also the
philosophical/legal consideration enunciated by Justice Harlan
in the cited case:

A union...is privileged to make decisions
which are reasonably calculated to further the

14. Local 357, Teamsters, supra.

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welfare of all the employees it represents,
nonunion as well as union, even though a
foreseeable result of the decision may be to
encourage union membership.

This Court’s interpretation of the relevant
statutory provisions has recognized that Congress
did not mean to limit the range of either
employer or union decision to those possible
actions which had no foreseeable tendency to
encourage or discourage union membership or
concerted activities. In general, this Court has
assumed that a finding of a violation of Section
8(a)(3) or 8(b)(2) requires an affirmative showing
of a motivation of encouraging or discouraging
union status or activity,

I would find that the subjective criteria utilized in part
by Riggi in making certain referrals, such as his own personal
educated view of an individual's capacity to do certain types of
work and the financial condition of an individual, do not
necessarily reflect discriminatory motivation and _ unless
otherwise shown to be discriminatorily, unfairly or invidiously
motivated, would not be per se violative of the Act, provided
further, that such criteria are subordinated to an overall,
established objective referral system easily understood by and
accessible to prospective applicants for referral.

Thus, what is basically wrong with the referral system used
by the Union in the instant case is not the use of the particular
subjective criteria defended by Respondent as not only lawful
but desirable but the fact that subjective criteria were the sole
basis for referral without any visible objective criteria being
utilized to ensure fairness and impartiality. As noted by Judge

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Decision

Reis in a context'> somewhat different than that of the instant
case, but dealing with the necessity of making information
available to prospective applicants for referral:

There inheres an enormous potential for abuse in
a hiring hall which maintains no published
priority lists, which operates with no written
standards for referral, and in which the livelihood
of men has been confided to the unbridled
discretion of a few union officials.

Judge Ries, with reference to the congeries of his own case
continued:

There are many records here, not examined into
at hearing, which facially suggest discrimination
or preference which beg for
explanation... While I would suppose that
Section 10(b) would lay to rest the possibility of
further Board proceedings as to these particular
records, the broader question of whether a hiring
hall may be operated in this fashion should be
pursued.

Within a year of Judge Reis’ decision, another case'® was
heard and decided in which Judge Holmes noted:

15. Local No. 324, International Union of Operating Engineers, AFL-
CIO (Michigan Chapter, Associated General Contractors of America, Inc.),
226 NLRB 587, 595.

16. Local Union No. 174, International Brotherhood of Teamsters
Chauffeurs, Warehousemen and Helpers of America, Independent (Totem
Beverage, Inc.), 226 NLRB 690.

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Decision

The [referral] system was operated without any
objective criteria or standards and in a
discriminatory manner. Simmons’ [a union
official] testimony in this regard is the most
significant because Simmons was the sole person
with complete authority over who would be

m referred. Simmons testified, “If you're asking
whether or not I have written standards or any
other kind of standards, no, most of them are in
my head.”

This of course reflects the situation extant here. Judge Holmes
commented:

It seems to me that . . . subjective criteria rather
than objective criteria were used.... [The
Union] did not have any written standard or any
other kind of standards for referral... .

Accordingly, I find that the Respondent has
operated its hiring hall and referral system for
referral of permanent employees to Totem
without any objective criteria or standards for the
referral of unit employees and in a discriminatory
manner in violation of Section 8(b)(1)(A) and (2)
of the Act.

The Board!’ in reviewing Judge Holmes’ decision did not
treat the question of whether a hiring hall which utilizes purely
subjective criteria in the operation of its referral system and
totally neglects the use of any objective criteria in the operation
of that system is per se in violation of the Act. Judge Holmes

17. The panel consisted of members Jenkins, Penello and Walthers.

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found independent discriminatory motivation in addition to the
lack of objective criteria and standards in the referral system in
the case cited. Nevertheless, in a subsequent case :here is the
following notation in a footnote:'®

Member Jenkins, in accord with the Board’s
decision in Local Union No. 174, Teamsters
(Totem Beverage, Inc.), 226 NLRB 690 (1976),
would find that Respondent’s operation of an
exclusive referral system without any objective
criteria for the referral of employees violated Sec.
8(b)(1)((A) and (2) of the Act and that the
operation of the discriminatory referral system
was one of the reasons for Respondent's failure
to refer alleged discriminatees Hendrix,
Newcomer, and Penrose. Accordingly, Member
Jenkins would find further that said failure was
discriminatory and in violation of Section
8(b)(1)(A) and (2).-of the Acton. =

Chairman Fanning and Member Murphy
agree with the Administrative Law Judge that the
evidence fails to establish that Respondent's
failure, if any, to refer Hendrix, Newcomer, and
Penrose was a result of the manner in which the
hiring hall was operated or that—-at least with
respect to Penrose—-there was any failure to
refer.

Since Member Jenkins in Totem made no comment on the
subject of a hiring hall operating without objective criteria being

18. Laborers’ International Union of North America, Local No. 282,
AFL-CIO (Millstone Construction Company, et al.), 236 NLRB No. 7 fn. 3.

4

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per se violative, yet appearing in Millstone as though he had
found it so, and since the rest of the panel in each of those cases
was different, there is no way of knowing what the Totem panel
would do in the Millstone case, that is, whether they would have
applied Board Member Jenkins’ Totem rationale to Millstone
and agreed with his conclusion.

If | am not reading into Board Member Jenkins’ rationale
something that is not there, I understand him to be holding that
in a particular case, if there are findings of specific violations of
Section 8(b)(1)(A) and (2) toward certain referral applicants
which satisfy the motivational requirements of Local 357,'? and
the discriminatory failure or refusal to refer occurs in the
context of the operation of a referral system based upon solely
subjective criteria without any objective criteria being utilized,
then the operation of such a hiring hall arrangement 4s itself
violative and any individual shown to have suffered by virtue of
that discriminatory referral system is discriminated against
within the meaning of the Act, even without a finding of
particular discriminatory motivation as regards those
individuals.

Although I have not been able to make a finding on the
subject on the basis of stare decisis in Board or in court law,
philosophical and legal bases for holding that the operation of a
hiring hall referral system void of objective criteria is per se
violative of Section 8(b)(1)(A) and (2) of the Act may be found
in that line of cases which hoids that a union owes to the
individuals it represents fair and impartial representation, and
that fair and impartial representation in the context of an
exclusive hiring hall situation requires the union to furnish to
individuals so requesting it, information concerning the referral

19. Local 357, Teamsters, supra.

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Decision

or out-of-work list including names and addresses of potential
applicants for referral who are included thereon. The Board has
stated?® that a union's arbitrary refusal to comply with an
indiwidual’s reasonable and manageable request for job referral
information is a breach of its duty of fair representation and
therefore violative of Section 8(b)(1)(A) of the Act. In finding
the violation, the Board noted in the cited case that the
Respondent Union's refusal to prepare the list of employees on
the referral register and supply it to the individual requesting it,
deprived that person of the only means whereby he could fully
investigate whether or not his referral rights were being
protected. In light of this rationale, how can it possibly and
logically be concluded that it is violative to deny referral
information to an individual who needs it to protect his referral
rights but not a violation for a business agent or union to
deprive the entire 400 to 500 individuals dependent for their
livelihood on referrals, as in the instant case, of similar necessary
referral information by the simple expedient of refusing to keep
standards or records which could be used by them to insure
fairness and impartiality in the operation of the hiring hall. If, as
is the case in the instant proceeding, the only standards or
records of referrals are kept in the business manager's head, that
procedure effectively denies all applicants for referral the
information which the Board has stated they need to protect
their rights. Failure to keep proper records which may serve as
objective criteria for referral, and the operation of a hiring hall
on the basis of solely subjective criteria, as in the instant case, is
therefore per se violative of the Act.

To the extent that the record reveals that the business
manager also granted the request of various stewards and
foremen for the referral of specific individuals, inasmuch as this

20. Local No, 324, 1.U.0.E., supra.

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Decision

practice is open to the same objections as the failure to maintain
appropriate objective standards, and is, in effect, another means
of avoiding the proper use of objective criteria in making
referrals, it too is, for reasons stated, violative of the Act.
Backdooring, which, in effect, this practice amounts to, in order
to avoid the fair and impartial operation of a proper referral
system is discriminatory.?! /nternational Association of Bridge,
Structural and Ornamental Iron Workers, Local 433 (The
Associated General Contractors of California, Inc.), 228 NLRB
1420.

(b) After September 1977

The Union takes the position that as of September 1977 it
devised a referral system containing the necessary objective
standards which would insure a fair and impartial operation of
its hiring hall. Although not all of the plan's provisions had, as
of the time of the hearing, been instituted, several of the more
important provisions were put into effect. Among these were a
work classification system, a sign-in procedure, and a carry-over
feature designed to assure each applicant for referral that if he is
not referred out to a job the first day, his name will remain on
the list and be moved up in proper order, so that he is referred
out the second or third day as jobs become available. According
to the Union, the essential elements of the plan are in operation
and working well, and the few exceptions which came to light
during the hearing are insufficient to warrant a finding that the
new plan is defective.

21. Although this issue is not specifically and separately alleged in the
complaint, it is sufficiently encompassed within the broad language of
paragraph 13 to permit findings to be made with regard to it inasmuch as the
matter was fully litigated at the hearing. McGraw Edison v. N.L.R.B., 419 F.
2d 67,

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Decision

General Counsel, on the other hand, contends that the
September 1977 plan does not reflect any great change in the
operation of the hiring hall since basically it is ignored by Riggi
who continues to refer individuals on the basis of the same
subjective criteria as he has in the past.

With regard to the changes in hiring hall procedures, as
reflected in the September 1977 plan, it should first be noted
that any reform in the hiring hall referral system that may have
been instituted subsequent to the issuance of the complaint
alleging 8(b)(1)(A) and (2) violations occurring prior thereto
does not, of course, obviate the need for a remedial order, for it
is settled law that the discontinuance of unfair labor practices
does not dissipate their effect. The Union, does not dispute this
fact. The Union does, however, argue that an abortive attempt
on its part and on the part of General Counsel to reach
settlement was based, in part, on the new hiring hall procedures
initiated in September 1977 and implemented shortly thereafter,
and requests that on the basis of the newly instituted referral
system, the settlement be unilaterally approved. During the
hearing, I refused to approve the settlement on grounds that
Wakil Abdunafi and Adolph Farmer, alleged discriminatees,
were offered nothing to make them whole for losses which they
may have suffered due to the alleged failure of the Union to refer
them. I hold to my decision on this score and for the reasons
cited.

Finally, with regard to possible violations on the part of the
Union since the implementation of the new hiring hall plan, it
should be noted that the hiring hall plan of September 1977 was
instituted long after issuance of complaint. The complaint did
not, therefore, contain either allegations concerning the
institution of that plan or its later implementation, nor was the
complaint amended at hearing to include such allegations.

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Decision

Although counsel for General Counsel collaterally attacks the
means by which referrals have been made at the hall under the
plan since September 1977, as a sort of adjunct to its case in
chief, in an attempt to show that its use did not ameliorate
conditions at the hall, he did not specifically request that the
plan or its utilization be found in violation of the Act.
Therefore, in light of the fact that there is no specific allegation
concerning the new hiring hall plan, that evidence in the record
concerning the plan is at best sketchy, that the plan was
instituted by the Union in a good faith effort to reach settlement,
while working together with the Regional office to solve the
problems theretofore found to be in evidence, and that, at any
rate, Abdunafi has filed new charges specifically related to the
new hiring hall referral system, and these charges are currently
under investigation,” I will make no finding concerning the new
hiring hall referral system or its operation.

3. The Alleged Failure to Refer Wakil Abdunafi
(a) Abdunafi's protected activiiies

Wakil Abdunafi, the Charging Party herein testified at
length concerning his intra-union activities and his filing of
charges and giving of testimony under the Act, for which, it is
alleged. Respondent Union retaliated against him by refusing to
refer him for employment. Abdunafi’s testimony is voluminously
supported by a myriad of documents.

Though perhaps not necessary to a finding of a violation
with regard to the Union's failure to refer Abdunafi, the totality
of his intra-union efforts to change the referral system is laid out

22. Case No. 22-CB-3849.

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Decision

in minute detail herein, in order to show how impossible it is for
a job applicant to obtain redress in an exclusive hiring hall
situation where that individual has been denied referrals, where
the union hierarchy is in complete control of such referrals and
maintains no criteria or standards upon which that applicant or
other applicants may rely to support their grievances, and to
show, moreover, the hopelessness of that individual’s case where
a single individual or small group of individuals, not only
controls all job referrals but also the dispensation of justice
within the union.

Abdunafi and Business Manager Riggi have been
acquainted with each other for 20 to 25 years. During most of
this period their relationship was relaxed and friendly. They
socialized together and Riggi befriended Abdunafi on a least one
occasion with personal financial help when Abdunafi was in
need. This was in 1965. Riggi was even cosignatory to a loan for
Abdunafi on a later occasion. Through 1968 and 1969 this
relationship continued to be cordial and was reflected in the
referrals which Abdunafi obtained for himself, his friends, and
between 1965 and 1970 for his son.

In 1969 or '70 Abdunafi began to take issue with certain
policies within the Union which were implemented or fostered
by Business Manager Riggi and the Executive Board of the
Union.?3 Abdunafi testified and Riggi conceded that Abdunafi
and Adolph Farmer were the most vocal members of the Union
critical of the policies which Riggi and the Executive Board
favored, from 1969 on. It was about this time, according to
Riggi, that the friendly relationship between Abdunafi and the

23. Riggi testified that Abdunafi was opposed to union policies and was
outspoken about it for over 20 years. There is no evidence, however, to support
Riggi's bald assertion relative to this matter.

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Decision

business manager began to deteriorate. They ceased to socialize
and Riggi admitted that he did no favors for Abdunafi
thereafter.

In 1971 Abdunafi, supported by Adolph Farmer, spoke out
from the floor at numerous union meetings as well as elsewhere,
against the policies of the union leadership. Although other
members, upon occasion likewise spoke out against such
policies, it is generally conceded by all that Abdunafi and
Adolph Farmer were the most outspoken. Upon occasion when
Abdunafi and Adolph Farmer criticized the way that the Union
was run, their criticism resulted in shouting matches between
them and the union leadership and some meetings were closed as
“disorderly.”

At one meeting in mid-1971 there was a discussion
concerning pensioners coming out of retirement and being
referred to the best jobs. Abdunafi and Adolph Farmer first
raised the issue and vociferously objected to this practice.
Emmanuel Riggi, the business manager's father, was one of the
pensioners specifically discussed at this meeting. The discussion
erupted into a heated argument between Abdunafi and Adolph
Farmer on the one hand and John Riggi and his father on the
other. After the meeting was adjourned as disorderly, John
Riggi went to the back of the meeting hall, grabbed his father by
the arm and told him, “Don’t argue with these guys, Pop, I will
hit them in the pocketbook where it hurts.”?4 I find the incident
discussed herein as having occurred as described by General
Counsel's witnesses.

24. This event is described as testified to by Abdunafi and Gissendaner,
both witnesses for General Counsel. Riggi denied having made the statement
and describes an entirely different situation. Riggi’s denial is, however,
discredited in favor of that of General Counsel's witnesses.

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Decision

Abdunafi’s and Adolph Farmer's attempt to restrict job
referrals to non-pensioners is activity protected under the Act
and Riggi’s threat to “hit them in the pocketbook” clearly
indicates animosity and an intention to retaliate against
Abdunafi and Farmer because of their participation in this
protected activity. But for the restraints of Section 10(b), the
threat would be found to be violative under the Act.

During meetings in early 1971, and prior thereto, Abdunafi
complained to Riggi about not being referred out to jobs. He
and Adolph Farmer repeatedly made a point not only of the fact
that pensioners were getting the better jobs as noted above, but
also that college students were being referred out to jobs during
holiday seasons and in the summer, while members in good
standing, such as themselves, were out of work. In May
Abdunafi wrote a letter to the International in which he
complained that in referring men to jobs the Local did not keep
a roster, and that its failure to do so resulted in card carrying
members being denied work while pensioners, college boys and
non-members were getting jobs. He requested that the
International take action at the forthcoming September
convention to ameliorate the problem and specifically requested
permission to address the convention himself on the matter. The
International replied that it would refer Abdunafi’s letter to its
New York regional office.

On May 28, 1971 Abdunafi brought internal charges against
Business Manager Riggi charging him with racial discrimination,
alleging that of 40 new members brought into the Union, 36
were Italian, only 4 blacks and none were Spanish Americans.
He charged that this was an attempt on Riggi’s part to control
the Union. He further charged Riggi with preferential treatment
of certain members, thus attacking the referral system, as
operated by Riggi as being unfair. He noted in his charges that

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Decision

while he had been out of work for 6 months, certain other
individuals had been put to work several times on different jobs,
including the new members who were referred out to jobs while
he, Abdunafi, was not considered at all. Finally, he objected to
the fact that Riggi referred college students to jobs during the
holidays, again while Abdunafi and other members in good
standing were ignored. He asked for a new hiring hall system of
referral. These were the first charges ever filed personally against
Riggi.

About this period of time, during the union meetings,
Abdunafi and Adolph Farmer vocally took issue with the union
leadership with regard to other matters. When at the June 4
meeting a recommendation was received to suspend summer
meetings, Abdunafi and Adolph Farmer strenuously objected.
Once again, a rather heated argument ensued. Similarly,
Abdunafi and Adolph Farmer took issue with the union
leadership, and Riggi in particular, throughout the meetings held
in 1971 on such issues as the amount of money provided out of
the Union's treasury for delegates to the September convention,
money paid out of the treasury to Riggi, and, of course, the
contents and subject matter of Abdunafi's charges against Riggi,
all of which frequently resulted in what some witnesses described
as personal attacks on Riggi by Abdunafi and which, others
described simply as heated arguments between or among the
participants.

About the time that Abdunafi brought his charges against
Riggi he similarly brought charges against other members of the
union leadership. He filed one charge against the president of
the local and its entire executive committee on grounds that they
permitted a raising of dues on a show of hands without taking a
proper secret ballot vote. The record is not clear as to the
outcome of these charges.

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Decision

Despite the opposition of Abdunafi and Adolph Farmer to
the suspension of meetings during the summer of 1971, those
meetings were nevertheless suspended. Abdunafi therefore, once
again, contacted the International stating that his charges
against the Executive Board and the “accused” should have
received attention. He noted his anger and argued that since
meetings had been suspended he had to bring his complaint
directly to the attention of the International. He appealed that
there should be constitutional modifications to protect his rights
and the implementation of a new referral system using a roster
to protect dues paying members. He charged that members had
no voting power, that Blacks were being starved out of the local
and that there was a conspiracy between the local’s Executive
Board and the Union's New York regional office to delay action.
In late October, receipt of Abdunafi’s letter was acknowledged
by the International. Abdunafi was advised that his earlier
correspondence had been forwarded to the New York regional
office of the Union but that the regional office had been
unsuccessful in trying to contact Abdunafi. It was then suggested
that Abdunafi contact a particular official at the New York
regional office who would do whatever possible to straighten
everything out.

In October 1971 Abdunafi received notice that his charges
against Riggi would be heard by the Executive Board on
October 18, 1971. The hearing was, in fact, held on that date,
and by letter dated October 27, 1971, Abdunafi.received the trial
board’s report. The report stated that although Abdunafi was
free to bring charges against any member or officer of the
Union, he had failed to indicate any basis for the charges he had
brought. Nevertheless, the report stated, his charges were heard,
but after hearing testimony from both sides the trial board
found no grounds for the complaint. It noted that the decision
being rendered was an informal one because “no complaint of
any violation of the Uniform Local Union Constitution exists.”

43a
Decision

It further noted “that a previous similar complaint by another
brother member was heard and judged by the Trial Board, and
the decision rendered was the same” and that “any future similar
complaints of facial discrimination or preferential treatment will
not be heard by any Trial Board of Local 394 unless a violation
of the Uniform Local Union Constitution is cited.”

When Abdunafi received the decision and report of the
Trial Board, apparently in disagreement with its findings, he
filed new charges, this time against the Recording Secretary, the
entire Executive Board and the Hearing Panel for “not being fair
and impartial and for being influenced by Brother Riggi whom
they must depend on for work.” Abdunafi stated in his charge
that to prove his case against Riggi he wanted certain union
records produced upon which he wished to rely, but that when
he asked for the records, Riggi stated that he would not permit
their production. According to Abdunafi’s charge, when Riggi
forbade production of the records, the Trial Board did not
pursue the matter. This prevented Abdunafi from obtaining the
evidence he needed to support his charge against Riggi.
Abdunafi charged that the Trial Board members were dependent
upon Riggi for work since he was in total control of referrals
and for that reason they would not act impartially for fear of not
obtaining work in the future. Thus, Abdunafi implied that, not
only does Riggi determine who makes a living through his
control of the referral system, but that he also, through this
power, controls justice within the Union, thereby cutting off any
effective means of appeal, again by virtue of his control of the
entire hiring hall referral system. This, at least, was Abdunafi’s
charge.?5 ‘

25. The numerous documents received into the record by stipulation of
the parties, were received for the purpose of showing the extent of Abdunafi’s
intra-union activity not for the truth of assertions contained within the
documents.

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Decision

On November 3, 1971 Abdunafi appealed the Trial Board’s
decision and in his letter of appeal to the International of that
date, implied that the local had engaged in discrimination based
on color, national origin and/or religion and charged it with
preferential treatment noting that the entire Executive Board of
the local, the men who heard and judged Abdunafi’s charges,
represent a controling faction in the local who “have raped the
Local of all the best jobs for themselves, family and friends.”
Receipt of Abdunafi’s appeal was acknowledged in December
1971 by the International and he was later advised that a hearing
on his appeal would be conducted on January 20, 1972 in New
York City.

Also on November 3, 1971, Abdunafi filed additional
charges against Jack Merlo, President of the Union and against
the entire Executive Board for suspending the July, August and
September union meetings, during which suspension, the
alternate candidate picked to attend the convention was, he
charged, chosen illegally. The new charges also included’ the
allegation that Recording Secretary Phillip Renna and the entire
Executive Board had tampered with and falsified the minutes of
the June meetings in connection with the extraction of $3,000
from the Union's treasury. Though not clear from the document
itself, it would appear that the charge was that a motion had
been included in a previous meeting's minutes to give $1000 to
each of the delegates to the convention, and that the minutes, as
written, did not reflect what actually had occurred.

On January 14, 1972 the Executive Board through its
secretary, Phillip Renna, advised Abdunafi that the charges
included in Abdunafi’s letter of November 3 would not be heard
because his charge that the suspension of meetings during the

months of July, August and September was illegal, was the
' subject of an earlier charge filed by another member which had

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Decision

already been resolved and that the resolution of the earlier
charge disposed of Abdunafi’s charge. With regard to
Abdunafi’s charge that the alternative candidate to the
September convention had been chosen illegally, the Executive
Board decided that since the Executive Board had selected two
alternative delegates at a meeting on September 18, 1971, and
one of them attended the convention, the procedure was not in
violation of the constitution. With regard to the charge of
tampering with and falsifying minutes in order to extract monies
in violation of the Constitution the Board noted that members
Adolph Farmer had filed a similar charge and had been denied a
hearing because there was no evidence of any tampering with or
falsifying of minutes. The report further noted that the
Constitution authorizes lawful expenditures and the allottment
of convention expenses is a lawful expenditure. It concluded that
since Farmer is appealing to the International, no Trial Board
hearing would be held. Finally, with regard to the charge that
delegates to the International Convention held in September
1971 were alloted $1000 each in violation of the International
Constitution, the report noted that the _ International
Constitution allows for per diem expenses by the International
to delegates but does not state that a local union cannot
supplement these expenses and there is therefore no basis for the
charge. Upon receipt of the local Executive Board's report,
Abdunafi wrote a letter to the International complaining about
his being refused a hearing by the Executive Board of the local
union, noting that there is nothing in the constitution which
permits denial of a hearing on the grounds tendered by the local
union’s Executive Board. Abdunafi was advised on February 28,
1972 that the matter had been placed on the International
General Executive Board’s agenda. On June 21, 1972 he was
further advised that a hearing panel of the General Executive
Board would consider the matter on July 11, 1972 in New York
City. Though scheduled for hearing in New York City on July

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Decision

11, 1972, the record reveals that the matter was heard or also
heard by the General Executive Board sometime during the
period July 24-28, 1972 in Banff. Alberta, Canada. The hearing
panel in Banff decided? with regard to the suspension of
meetings in July, August and September 1971 that “the time to
hold said meetings has passed and they cannot be ordered to be
held.” The panel further found that at the meeting of June 4,
1971 a motion was made, seconded and passed to allow each
delegate to the convention expense money, and presumably it
was therefore legal; that the charge that the minutes were
falsified was not proven; and that the Executive Board indicated
that there was no falsification of the minutes and that no trial
would be held on these charges. The panel recommended that
the appeal be denied and its recommendation was adopted.

On February 2, 1972 the General Executive Board of the
International met in Miami to consider Abdunafi’s appeal dated
November 3, 1971 concerning his charges of racial
discrimination and preferential treatment levelled at Riggi and
dismissed by the local union’s Executive Board. The General
Executive Board recommended that Abdunafi’s appeal be denied
as he had failed?’ to substantiate his charges against Riggi. This
recommendation was approved.

On December 12, 1972 Abdunafi attempted to file charges
directly with the International. He charged the entire local
union’s Executive Board with disregard of the constitution when
it filled the vacancy occasioned by the resignation of the vice
president with an individual who did not meet the requirements
to fill that office as outlined by the constitution. He requested the

26. Both Abdunafi and representatives of the local union made
appearances.

27. Abdunafi was present as were representatives of the Union.

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Decision

International to act because, he complained, the local’s
Executive Board always finds itself not guilty and because he
could not get a fair hearing because the Executive Board
consisted of relatives and friends of the union leadership. He
charged the local’s Executive Board with being corrupt and
requested the International to intervene. The International, on
December 20, acknowledged receipt of Abdunafi’s letter and
advised him that charges on the local level must first be heard by
the local’s Trial Board after which appeals may be taken to the
General Executive Board of the International. On January 16,
1972 Abdunafi followed the suggestion of the International and
filed his charges against the Union's entire Executive Board at
the local level alleging that it had chosen a member to fill the
vacancy for the office of vice president who met none of the
qualifications for the job. Receipt of Abdunafi’s charges was
acknowledged on March 14, 1973 at which time he was advised
that they would be heard on March 23, 1973. Meanwhile,
Abdunafi wrote one more letter to the International complaining
about the delay caused by the failure of the local union's
Executive Board to meet, and bringing to the attention of the
International the fact that he had been filing charges and appeals
without success for two years and had not worked for one of
these years. He blamed, once again, the hiring system and
strongly implied that his failure to obtain work was in part due
to the fact that he filed charges. On March 20, 1973, Abdunafi
indicated his distrust of both the Local Union and the New York
Regional office when in a letter to the International he requested
that an observer be sent to the forthcoming March 23 hearing
and that the observer not be sent from the New York Regional
office. The local Executive Board met on March 23 as scheduled
and on March 28, 1973 issued its decision finding that since
Abdunafi presented no evidence, the complaint against the
Executive Board should be dismissed. Abdunafi subsequently
appealed this decision to the International and in the appeal

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Decision

explained that he had brought witnesses with him through which
he intended to submit evidence but that Riggi prevented him
from using his witnesses. He also explained that when he was
asked to produce evidence in support of his charge, he told the
Executive Board that the evidence was contained in his charge
and in the minutes of the meeting at which the alleged violation
of the constitution occurred. Riggi, however, refused to permit
the use of the minutes as evidence, and for this reason Abdunafi
was prevented from proving his case.

Despite the initial decision concerning Abdunafi’s charge
that the vice president’s nomination was improper, and the
Executive Board's findings of no evidence to support his charge,
the same trial Board met again on April 11, 1973 and
determined that Abdunafi had been right, that the individual
holding the position of vice president had, in fact, not been in
good standing for 2 years preceding this appointment and had
under the constitution, been appointed illegally. The Trial Board
recommended that the Executive Board take further action.
Meanwhile, Abdunafi filed another charge, this one against
Secretary Phillip Renna, the Executive Board and the March 23,
1973 Trial Panel, apparently for their handling of Abdunafi's
charge which was heard on that day.** The hearing of this charge
was scheduled for May 9, 1973. On that day the Trial Board
rendered its decision finding that although Renna had been
guilty of negligence, he should not be penalized because of
illness in his family. It further found that the Executive Board
and Trial Panel of March 23, 1973 were not guilty of the charges
brought against them by Abdunafi. The decision included
instructions that no copies of the minutes of the Trial Board's
meeting were to be given out.?? It was noted under separate

* 28. Abdunafi's charge is not, itself, part of the record.

29. Article XII, Section 5, 6 and 7 were cited.

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Decision

cover that with regard to the charges against the Trial Board of
March 23, 1973, all of the charged parties were present but that
Abdunafi did not press®® his original charges against them and
so they were dismissed as unfounded.

On June 7, 1973 Abdunafi appealed the May 9, 1973
decision to the International charging that the panel had been
handpicked, that it had willfully defied and violated the
constitution, and demanding that the handwritten minutes of the
trial panel be made available.

Abdunafi’s appeal from the dismissal of his earlier charges
against the entire Executive Board and his appeal of the Trial
Board’s decision to dismiss his charge concerning the illegal
appointment of the vice president were decided at a General
Executive Board meeting held at White Sulpher Springs, West
Virginia during the period August 13-17, and these decisions
were adverse to Abdunafi's position. Abdunafi was so advised
on August 30, 1973. Abdunafi therefore, in ‘a letter dated
September 21, 1973, appealed the decisions of the General
Executive Board, reviewing all the grievances, charges, appeals
and supporting facts, concerning these matters and requesting
permission to address the next regular convention by way of
appeal as provided by the International Constitution. On
September 25, 1973 Abdunafi was advised by the International
that he would subsequently be advised of the dates of the next
regular convention and of the time and place at which he might
appear before the Committee on Grievances, Adjustments and
Appeals.

On March 20, 1973 Abdunafi wrote to Robert E. Powell of

30. Abdunafi had, in the meantime, been trying to get hearings before the
International in Washington because he felt that he could not get a fair trial in
Newark.

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Decision

the International stating that there are 125,000 blacks in the
International and asking Powell where he should seek help.
There is no indication in the record as to whether Abdunafi
received any reply from Powell.

Through a letter dated April 3, 1973 Abdunafi was advised
by the Union that charges had been brought against him by
John Riggi based upon alleged misconduct on Abdunafi’s part
at the March 23, 1973)! meeting at which his charges against the
Executive Board had been heard. Abdunafi was advised that a
hearing on Riggi’s charges against him would take place on
April 19, 1973. The apparent basis for the charges were
allegations by Riggi that Abdunafi used foul language at the
meeting during a heated argument among those present.
Abdunadi denies having sworn but admits that he may have
used inflamatory language. On April 19, 1973 the Trial Board
held its hearing and found that Abdunafi had, as Riggi charged,
conducted himself at the March 23, 1973 meeting in a manner
violative of the constitution. Abdunafi was so advised by letter
dated April 26, 1973 in which he was also advised that he was
suspended from attendance at all regular and special meetings of
the Union for | year commencing June |, 1973. He was also
advised that the decision would not affect, or prevent future
work referrals.

Riggi testified that controversies have arisen at some
meetings during which tempers get frayed, that people shout and
get angry. He also testified that 4-letter words under such
circumstances are not uncommon and that at the same meeting
other members used improper language. Riggi attempted to
make the point, however, that it was not the use of the language

31. Both Abdunafi and Riggi were in error as to the dates of this incident.
Rather than relying upon their testimony, | rely on supporting documentation.

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Decision

used by Abdunafi so much as it was his tone and that
disciplinary action may be taken against members for swearing,
depending on the tone. He stated that it is a matter of
“containing the meeting in its proper perspectives” and “it is the
duty of the president” to take steps to insure this because the
meetings must be conducted with dignity. The president did not,
however, bring charges against Abdunafi on this occasion.
Rather, it was Riggi who brought charges. The record contains
no evidence that anyone had ever had charges brought against
him, either before or after the incident of March 23, 1973, for
swearing at a union meeting, other than the charges discussed in
this decision.

Despite Riggi’s testimony that charges were brought against
Abdunafi, not so much for the fact that he swore but because of
the tone he used, I find that Riggi brought these charges against
Abdunafi because of the various positions Abdunafi had
previously taken against Riggi and the Executive Board and the
numerous charges he brought against them, particularly his
criticism of Riggi’s one man control of the Union and its referral
system. I base this finding on Riggi’s own testimony that
swearing was not uncommon at union meetings and that others
had used improper language at the very same March 23 meeting,
yet no one had ever previously been disciplined for swearing as
had Abdunafi. I find it of particular interest that it was Riggi,
rather than the president who, according to Riggi, is in charge of
such matters, that brought the charges and that the Executive
Board Panel found Abdunafi guilty and recommended discipline
all out of proportion to the offense — a full year’s suspension
from all meetings. Though the internal disciplinary actions
undertaken by this local against Abdunafi at Riggi’s bidding are
not subject to a finding of a violation, they are subject to
analysis for the purpose of determining whether or not there was
animus on Riggi’s part and on the part of the Executive Board

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in its dealings with Abdunafi. I find therefore that Riggi brought
the charges against Abdunafi, and the Executive Board Trial
Panel suspended Abdunafi because of his continuing efforts to
undermine Riggi’s control of the Union and its referral system,
and that Riggi’s animosity, as reflected by Abdunafi’s
suspension, sheds light on the subsequent events discussed
hereafter.

Abdunafi subsequently appealed his suspension to the
International in Washington, D.C. and asked for a hearing in
Washington because he felt he could not obtain a fair hearing
from the Local’s Executive Board since everyone on the
Executive Board depended on Riggi for job referrals. As
Abdunafi pleaded in his appeal, “. . . they either fall in line or
their families starve like mine.” Abdunafi further urged that
' when an Executive Board is charged with wrongdoing, it should
not then act as a trial panel. Thus, Abdunafi expanded his
charges against Riggi and the Union by charging that Riggi’s
control of the referral system also interfered with fair and
evenhanded dispensation of justice within the Union.

On May 5, 1973 Abdunafi followed up his initial appeal to
the International with another, more detailed letter, attacking
the system of trial procedures used at the local; his suspension;
the referral system; the complete control of the Union at the
local level by Riggi and his “hand picked” Executive Board, and
requesting, once again, that his appeal be heard in
Washington.’2, On May 8, 1973 he formally appealed the

32. Abdunafi was advised by letter dated May 9, 1973 that it is customary
for the General Executive Board to delegate its judiciary authority to hearing
panels in various regions for the sake of expedition. Abdunafi replied on May
4, 1973 stating that he did not want the New York panel to hear his case but
rather that the General Executive Board in Washington hold the hearing. He
also asked for a transcript of any hearing held in New York.

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Executive Board's decision of April 19, 1973 alleging that the
panel was illegal because its members were not disinterested but
partial, unfair and hand picked by Riggi. He asked for a new
trial at which he would present his own witnesses. He charged
Riggi with retaliating against him because he had previously
filed charges against Riggi. On July 19, 1973 Abdunafi was
advised that a hearing on his appeals would be held by a
Hearing Panel of the General Executive Board in New York on
August I, 1973. Abdunafi was invited to be present at his own
expense and to submit a brief or other documents, in the
alternative. Despite his appeals and other efforts, Abdunafi was
suspended from attending union meetings for one year. While on
suspension he did not, of course attend union meetings but both
before and after his suspension he attended meetings and
vociferously and untiringly pursued his goal of undermining
Rigg’s authority and control of the hiring system.

On July 18, 1973 Abdunafi filed new charges against the
Union on the local level, this time against the May 9 Trial Panel,
alleging that it was hand picked, presumably by Riggi, and again
bringing charges against the entire Executive Board. On July 25,
1973 Abdunafi was advised by Recording Secretary Renna that
since he had not mentioned any specific violations as wrong, and
no date was specified, his charges would not be entertained.

On December 21, 1973 Abdunafi wrote a letter to Executive
President Peter Fosco of the Laborers’ International Union of
North America, in which he outlined the hiring hall referral
system as he understood it to operate at the Newark local.
Specifically, he charged that 10 percent of the jobs, the best jobs
were awarded outside the hiring hall; that Riggi gives the better
jobs to whomever he chooses; that Riggi controls all referrals
and therefore controls the membership; that other members
including himself have been deprived of benefits under this

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system; and that the International assists the local union in its
violation of the constitution by ignoring what has been going on.
Abdunafi then asked for an audience to discuss these matters.
Receipt of this 3-1/2 page single spaced letter was acknowledged
on January 4, 1974 with a note that it had been referred to the
New York Regional Office of the Union. On January 28, 1974
Abdunafit mailed copies of this letter to the eight vice presidents
of the International along with a complaint in his covering letter
that he had asked Fosco not to refer his letter to the New York
Regional Office but to have the International tend to the matter.
On February 28, 1974 Fosco acknowledged receipt of
Abdunafi's letter to the vice presidents and promised to inquire
into the matter. In an undated letter?? sometime later, Abdunafi
advised Fosco that he was in receipt of Fosco’s letter dated
April 11, 1974. In his letter, Abdunafi stated that he was
shocked to have been told by Fosco that he had investigated
Abdunafi’s charges and found that Local #394 does not have a
hiring hall or roster system and that members were permitted to
seek employment on their own. Abdunafi went on to complain
about being out of work and deprived of welfare and pension
benefits as a direct result of the illegal referral system. After
reviewing the problems with the way the hiring hall system was
run, Abdunafi registered an objection to Fosco telling him that
he should seek his own employment. Abdunafi then complained
that the local was corrupt and that the business manager only
represents 10 percent of local laborers and gets the better jobs

33. The letter was allegedly postmarked September 10, 1974 according to
a communication from Fosco to Abdunafi's dated October 9, 1974.

34. Not included in the record. Once again the description of the content
of Fosco's letter as described in Abdunafi's letter is noted, not to show what
Fosco’s letter allegedly contained nor for the truth of matters contained in
Abdunafi's letter but rather to show that Abdunafi registered his displeasure in
this and other letters as to how the Union operated under Riggi's direction.

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for his own people. Abdunafi complained further that he could
not obtain work because stewards and foremen would only
accept laborers with slips signed by Riggi. Abdunafi closed with
a request for an audience. Receipt of Abdunafi’s letter was
acknowledged on October 9 by Fosco who once again advised
him that it had been forwarded to the New York Regional
Office.

On December 23, 1974 Abdunafi wrote to Fosco once again
enclosing clippings*’ from the Elizabeth Daily Journal of the
same date. He advised Fosco that it was Fosco’s job to depose
Riggi and see to it that a fair and impartial hiring system was
installed. He told Fosco that he had not received a reply to his
last letter and took the step he did with great reluctance because
he was forced to do so under the circumstances. Abdunafi was
apparently referring to his filing of charges against the Union
with the National Labor Relations Board on December 12,
1974.36 He had previously filed charges against the Union with
EEOC in October 1974. Fosco acknowledged receipt of
Abdunafi's letter on January 2, 1975.

On July 1, 1975 Abdunafi filed the charge in the instant
proceeding. The charge was discussed at union meetings by
Abdunafi and by the Union leadership. The Union leadership
maintained that the filing of the charges with the Labor Board
put the Union under a financial strain and that they could not
tell what the total cost would be because they did not know how
long the matter would be in issue. In particular, attorney's fees
were discussed, and certain sums of money labeled as attorney's
fees and apparently received by the business agent for that use
was questioned by Abdunafi.

35. Not included in the record.

36. Dismissed February 21, 1975.

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Even after filing the unfair labor practice charges against
the Union in late 1974 and 1975 Abdunafi pursued his objective
of getting the hiring hall referral system changed through
internal means. On September 27, 1975 he once again filed
charges personally against Riggi for “unfair hiring practices.”
The matter was tabled, however, “until such time as the National
Labor Relations Board has. reached a decision on similar
charges,” according to a letter dated November 4, 1975
addressed to Abdunafi and signed by Recording Secretary Urso.

On October 14, 1975 Abdunafi wrote a letter to Secretary of
Labor Dunlop briefly outlining a number of the various
grievances which he had previously brought to the attention of
the Local Union, International, National Labor Relations Board
and other entities. There is no evidence, however, that this letter
ever came to the attention of the Union.

Abdunafi’s crusade against Riggi and the Union’s leadership
continued throughout 1976 and 1977. In June 1976 Abdunafi
contacted President Angelo Fosco of the International to ask
about his being on the agenda at the forthcoming convention.
He mentioned, once again, Riggi’s alleged wrongdoing, the
retaliation which he claimed to have suffered for the 5 years
since he first filed charges against Riggi and requested a personal
audience with Fosco before the convention to discuss the matter.
Subsequently, Abdunafi received a letter from the General
Secretary-Treasurer of the International advising him that he
would be advised of the time and place just as he had been in
1973 when he first appealed from the General Executive Board
decisions. .Eventually, Abdunafi received word that his appeal
would be heard by a trial panel at the convention in Miami on
September 13, 1976.

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On October 15, 1976 Abdunafi filed charges with the
Department of Labor under the Labor Management Reporting
and Disclosure Act concerning reimbursement of Riggi from the
Union's treasury for $12,500 in attorney's fees which Abdunafi
alleged were personal in nature and which reimbursement would
therefore be illegal. Abdunafi alleged that the reimbursement
was voted by a simple show of hands and that this too was
illegal. He alleged, further, that an increase in dues was voted
without a secret ballot in violation of the statute; and that $1,000
was extracted illegally, apparently to send delegates to the
forthcoming convention, again without a secret ballot. These
matters had been discussed, according to sketchy testimony, at a
union meeting in early October and resulted in heated debate.

Under separate cover, by letter of the same date, Abdunafi
also wrote a letter to the Secretary of Labor requesting that an
injunction issue restraining the business manager from sending
anyone to work until his problems were resolved. In his very
lengthy letter Abdunafi charged that the International was
covering up and condoning the breach by the Local Union of its
constitution. He alleged that at the convention in Miami, at his
hearing, two of the panel members were the same individuals to
whom he objected when they sat on the Trial Panel in the New
York Regional proceeding. He argued that this was “tantamount
to the accused sitting in judgment of themselves.” He charged
that the Miami panel recommended dismissal of his bona fide
charges, that breaches of the constitution by the local resulted in
monies being improperly extracted from the treasury and in the
improper election of ineligible local officials. He complained
that his charges were not properly presented and called into
question the practice of the local of failing to follow proper
protocal. He thereafter discussed, at length, the various
problems previously brought to the attention of the
International including the business manager's complete control

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of the local union through his authority to unilaterally refer out
individuals of his choosing and the alleged “improper extraction
of $1,000” for the use of the alternate delegates to the 1971
convention.

Firslly, Abdunafi criticized Riggi for the financial
hardships which he alleged he suffered because of Riggi’s failure
to refer him to jobs in retaliation for the charges which he had
brought against Riggi. Along with the explicit charges contained
in Abdunafi’s letter of October 15, 1976, he also enclosed several
copies of earlier letters which included similar or related charges
and allegations.

On November 23, 1976 Abdunafi brought new charges
based upon occurrences which allegedly took place during a
meeting of the Local Union on November 5, 1976. He charged
Recording Secretary Urso with falsifying the minutes of that
meeting by not including therein a reference to Abdunafi's
conversation with an attorney concerning the reimbursement of
Riggi out of treasury funds for attorney’s fees amounting to
$12,500. Secondly, he charged the President of the Local Union
with failure to coperly conduct the meeting because he did not
ask Abdunafi why he objected to adoption of Urso’s minutes.
Finally, he charged the entire Executive Board, except for Vice
President Carrington,’ with complicity along with the recording
secretary and president for permitting minutes to be adopted
which did not properly reflect what had occurred at the meeting.
Abdunafi then charged a conspiracy among those named in his
charge to have the lawyer brought to the meeting “to brainwash
the membership into allowing $12,500 to be extracted illegally
from the treasury.” Abdunafi contended that the legal expenses

37. Carrington has asked that Abdunafi'’s reasons for objecting to the
adoption of the minutes be noted but his request was ignored.

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were the result of Riggi'’s errors and therefore not reimbursable,
but added that he might not have objected to the reimbursement
of Riggi if it were not for the fact that Riggi personally
controlled the entire referral system and “had the power to
decide if a man eats or starves,” and therefore effectively
controlled the vote in favor of reimbursement. In conclusion,
Abdunafi drew a comparison between himself and certain others
who were bearing the hardships of unemployment because of
their defiance of Riggi and those who supported him and his
control of the Union through his singular authority over the
referral system. Abdunafi demanded that his charges be read to
the membership at the next regular meeting.

On January 4, 1977 Recording Secretary Urso advised
Abdunafi that the charges which he had filed on November 23,
1976 were scheduled for hearing on January 24, 1977. In the
same letter Urso also advised Abdunafi that countercharges had
been brought against him, copies of which were enclosed, and
that the countercharges would also be heard at the same trial
board meeting. The countercharges against Abdunafi were
brought by the members of the Executive Board, individually
and as a body and accused Abdunafi of “defaming and
slandering the Recording Secretary with an accusation of
minutes falsification” and by “alluding that a conspiracy existed
between the various members of the Executive Board... and
separately the business manager and an attorney . . . to illegally
extract money from the Union's treasury.” Abdunafi’s charges of
minutes falsification and conspiracy were considered to be,
under the countercharges, defamation and slander and therefore
violative of the Local Union Constitution.

On January 26, 1977 the Trial Board issued its report on the
January 24, 1977 hearing on Abdunafi's charges and on the
countercharges filed against him. The Trial Board found all of

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Abdunafi’s charges to be without merit and all of the
countercharges against Abdunafi to be meritorious. The Trial
Board decided unanimously that Abdunafi should be suspended
from attending all regular and special meetings for 2 years.
Although none of the individuals charged by Abdunafi served
on the January 24, 1977 Trial Board, one of those who served on
that Board, Timothy Nickles, testified that he was appointed to
the Trial Board by the President of the Local Union, Jack
Merlo. It must be assumed that the procedure for choosing
individuals to serve on Trial Boards is a regular, ordered
procedure done in accordance with established rules, Therefore,
it may safely be assumed that the other members of the January
24, 1977 Trial Board, like Nickles, were all chosen to serve on
that Board by Merlo or by the Executive Board of which he is a
member. Thus, in either case, as Abdunafi was later to
complain, the charged parties, i.e. Urso,>* Merlo and the rest of
the Executive Board chose their own judges to decide their own
guilt or innocence with respect to the charges brought against
them by Abdunafi as well as the guilt or innocence of Abdunafi
with respect to the countercharges brought against him by the
members of the Executive Board, individually and as a body. In
light of the inequities of the procedure utilized, the ultimate
decision was not surprising. Abdunafi appealed to the
International on procedural grounds and charged that his
suspension was retaliatory. The battle continues.’

Although it is not the province of the undersigned to judge
the internal functioning of a labor organization to determine
whether it is democratic or otherwise and although the Supreme
Court, as noted above, has counselled against the National
Labor Relations Board attempting to take an affirmative role in,

38. Urso was also a member of the Executive Board.

39. New charges against the Union were filed in late 1977.

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Decision

or getting too much involved in establishing internal union
procedures, the Charging Party, in his 8 year old crusade has
attempted to show that placing in the hands of one individual
the sole authority to control the hiring hall referral system
permits that individual to dictate who will be able to support
himself and his family, and if that individual has the power to
feed or starve those who are dependent on such a system, he
likewise effectively controls those who serve on the various
committees and boards upon whom the membership depends to
adjust grievances and dispense justice. Without deciding the
correctness of the decision of the January 24, 1977 Trial Board, I
find that the entire congeries of events beginning in 1971 and
culminating in the January 24, 1977 Trial Board decision amply
demonstrates the credibility of Abdunafi's hypothesis that the
placing in the hands of one individual the sole power to regulate
an exclusive hiring hall system, without the utilization of
objective criteria or standards, has consequences more far-
reaching than the occasional denial of a particular job to a
person out of favor with that authority and permeates the
atmosphere with such potential for abuse that the organization
dependent upon the proper functioning of that hiring hall system
cannot effectively operate to serve its membership or other
interested parties.“

40. As noted above, Abdunafi, in his many appeals and letters to the
International and to government bodies charged that the Executive Board
could not operate in an independent manner free of Riggi’s authority because
they were dependent on Riggi for their livelihood. Without concluding that the
Executive Board which brought countercharges against Abdunafi in 1977 was
in any way influenced by the amount of work they were referred to by Riggi, as
claimed by Abdunafi, the record reveals that in 1975, (the only year for which
adequate records were provided) of the five members on the Executive Board
besides Riggi and his assistant Corsentino, al! worked in excess of 1,100 hours,
twice the average worked by other members of the Union that year. Although
this does not, in and of itself, prove that Riggi controls the Union by
controling the referral system, it does, once again, indicate that the lack of
visible objective standards creates a situation where there could be abuses and,
moreover, abuses which could not be detected without such standards.

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Although the primary purpose in describing in such minute
detail the course of Abdunafi's 8 year battle with Riggi and the
Union hierarchy is to demonstrate beyond question Abdunafi's
protected concerted activity in trying to undermine Riggi’s
control of the hiring hall system, and to illustrate by means of
describing the various actions taken in retaliation against him,
the fact that animosity existed and exists because of these
activities, an overall complete understanding of the sequence of
events in Abdunafi's case is also necessary in order to
comprehend the tremendous extent to which an individual
worker's Section 7 rights to freely engage in protected concerted
activities can be actually or potentially limited by placing in the
hands of one individual or group of individuals complete
dictatorial control of a hiring hall system without the protection
of workable objective criteria or guidelines to immunize those
who are dependent upon such a system for their livelihood from
the actual or potential abuses-which may be occasioned by the
use of irrelevant, unfair or invidious considerations in the
dispensation of job referrals. Although only a few individuals or
even no one at all may suffer actual financial setbacks if an
exclusive hiring hall referral system without objective guidelines
is operated in a fair and just manner, the potential for abuse in
such a system is all too pervasive and cannot help but serve as a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2530%3A1. Public record. Not legal advice.