Painters Local Union No. 1555

PAINTERS LOCAL UNION NO. 1555 Painters Local Union No. 1555, affiliated with the In- ternational Brotherhood of Painters and Allied Trades, AFL-CIO and Stephen Strickland and Alaska Constructors, Inc., Party in Interest. Case 19-CB-2997 April 4, 1979 DECISION AND ORDER BY MEMBFRS PENELLO, MURPHY, AND TRUESI)AI.E On August 10, 1978, Administrative Law Judge Bernard J. Seff issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions with supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record in the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge, except as modified herein. As set forth more fully in the Administrative Law Judge's Decision, the record establishes that the Charging Party, Stephen Strickland, was a member in good standing of Respondent Union when, on June 16, 1977,2 he was laid off by his Employer, Alaska Constructors, Inc., hereafter ACI because of a reduc- tion in force. On June 17 Strickland reported to Re- spondent's hiring hall and signed the out-of-work list.3 Strickland did not receive an immediate dis- patch, and while awaiting his next assignment of work, he obtained several small freelance painting jobs in the local community. On or about July 29,4 Strickland spoke with ACI Painting Superintendent William Reed who informed Strickland that pursuant to ACI's collective-bargain- ing agreement with Respondent ACI had made a name request5 for Strickland on July 20. Reed recom- ' Respondent has excepted to certain credibility findings made by the Ad- ministrative 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 Drv 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. 2 Unless indicated otherwise, all dates hereafter refer to 1977. 1 Pursuant to a collective-bargaining agreement with ACI and a number of other employers, Respondent maintained an exclusive hinng hall through which all of the employees of the contracting employers were dispatched. ' The Administrative Law Judge stated that Reed and Strickland first spoke on July 25. However. the record, reveals that the conversation oc- curred on July 29. 'The collective-bargaining agreement provides for two types of dis- patches: "name" requests and "open" calls. Name requests are specific re- quests from an employer to Respondent's hiring hall for specificly named employees. Under the contract, an employer may make a name request for mended that Strickland report to the hiring hall so that he could be dispatched to work for ACI. Strick- land, who was in the process of finishing a freelance painting job, asked Reed if ACI could wait several days so that he could finish his present work. Reed indicated that several days did not present a problem On August 3, immediately after finishing his work, Strickland went to Respondent's hiring hall and spoke with Clarence Thomas, Respondent's business agent, business representative, and financial secre- tary, about ACI's July 20 request for his dispatch. Thomas responded by telling Strickland that Respon- dent was only obligated to honor one name request for every five open-call requests made by an em- ployer. In addition, Thomas accused Strickland of acting as a contractor and stated that the Union was going to penalize him for acting as a contractor by not dispatching him for 30 days. Strickland then contacted Reed again and ex- plained that Thomas had refused to dispatch him be- cause of the alleged "one-for-five" rule. Reed told Strickland there was no such rule and that Respon- dent was obligated, upon request, to dispatch a named employee and that he, Reed, would again re- quest Respondent to dispatch Strickland. The next morning Strickland returned to the hiring hall and confronted Thomas with the information that he had learned from Reed. Thomas admitted that there was no one-for-five rule and that an employer's name re- quest had to be honored. Thomas further stated that Strickland's 30-day suspension would be reduced to 7 days, and that if ACI again requested Strickland he would be dispatched on the following Monday or Fri- day. However, at approximately the same time Thomas spoke with Reed's superiors about the ACI name re- quest for Strickland. Subsequently, Reed's superiors instructed Reed not to "make waves" with the Union by making another name request for Strickland. Reed then went on vacation. When Reed returned from his vacation on August 20, Strickland requested that ACI place another name request for him. In response, Reed told Strickland that such a request could not be made at that time. Strickland then engaged the services of an attorney in order to obtain the July 20 dispatch which he felt had been unfairly denied him. On August 23, Strick- land's attorney sent a letter to the Union complaining about the failure to dispatch Strickland. Shortly thereafter, on August 30, Thomas filed an internal any employee who has worked fior that employer during the last 120 days. An employee properly requested by name is automatically dispatched re- gardless of his or her position in the out-of-work list and regardless of whether the employee is signed up on the list. Open calls, on the other hand, are filled by dispatching the employee holding the highest position on the out-of-work list. 241 NLRB No. 112 741 DECISIONS OF NATIONAL LABOR RELATIONS BOARI) union charge against Strickland, alleging that Strick- land had violated internal union rules governing a member acting as a contractor. On September 6, Strickland again met with Thomas and requested that he be dispatched to ACI. Thomas became angry and told Strickland to cease his personal and legal efforts to be dispatched and threatened to refuse to dispatch him in the future if his current efforts did not cease. Shortly thereafter, Thomas called Phillip Morrison, a senior ACI official, and told him not to requet the Union to dispatch Strickland because Strickland was in the process of suing the Union. At approximately the same time, George Straughn, the union shop steward at the ACI project, requested ACI officials not to place a name request for Strickland because he was in the process of suing the Union. On September 8 Strickland's attorney sent a second letter to the Union indicating that if Strickland was not dis- patched and paid for his lost wages legal action would be taken. On September 9 Strickland filed the unfair labor practice charges involved herein, alleging that the Union had failed to dispatch him for "arbi- trary, capricious, and bad faith reasons." The record further establishes that on August 30, September 7, and October 19 ACI placed "open calls" with the Union's hiring hall for a phenolic coater, a position that Strickland was qualified to fill. On each of the above dates, Respondent dispatched individuals who, relative to Strickland, held inferior positions on the hiring hall out-of-work list. On No- vember 10 Respondent conducted an intraunion trial pursuant to Thomas' August 30 charge and found that Strickland had violated internal union rules by acting as a contractor. Strickland was fined $1,125 and suspended from the hiring hall's out-of-work list. Subsequently, the general membership voted to re- duce the fine to $200 and to eliminate Strickland's suspension from the hiring hall. Thomas, however, refused to abide by the general membership vote, and on December 14 he wrote to Strickland that Respon- dent had reinstated the full penalty voted by the trial board. In mid-January 1978 Thomas told Strickland that he would not be considered for dispatch until the $1,125 fine was paid in full. On January 18, 1978, after discussing the matter with Board agents, Respondent agreed to dispatch Strickland pursuant to a new name request by ACI. On January 22 and 23, 1978, Respondent's ACI job steward, Straughn, requested that ACI Officials Reed and Morrison discharge Strickland because Strick- land was in the process of suing the Union. Reed and Morrison declined to take this action. Analysis The board has consistently held that a union vio- lates Section 8(b)(1)(A) and 8(b)(2) of the Act where it discriminatorily refuses to refer an employee or ap- plicant for employment pursuant to the terms of an exclusive referral system.6 In the instant case, it is clear that on July 20, 1977, ACI made a specific name request at Respondent's hiring hall for Strickland's dispatch and that, pursuant to its collective-bargain- ing agreement with ACI, Respondent was obligated to dispatch Strickland unless its actions were neces- sary for the effective performance of its functions as bargaining representative.7 Since Respondent has failed to offer a valid reason for its refusal to honor its obligaiton to dispatch Strickland, we find that Re- spondent acted arbitrarily and capriciously and thus in derogation of its duty of fair representation in fail- ing to dispatch Strickland pursuant to ACI's July 20 name request for him and thereby discriminated against Strickland in violation of Section 8(b)(1)(A) and (2) of the Act by adversely affecting his employ- ment status.8 We find no merit to Respondent's numerous and changing explanations as to why it failed to dispatch Strickland on July 20. Initially, we note that the Ad- ministrative Law Judge discredited Thomas' testi- mony that he had made several unsuccessful attempts to contact and dispatch Strickland pursuant to the ACI request on July 20. Strickland, on the other hand, credibly testified that when he first spoke with Thomas on August 3 about ACI's July 20 name re- quest Thomas did not mention that he had attempted to contact him; but rather, Thomas gave other rea- sons for refusing to comply with ACI's request for his dispatch. Thomas first told Strickland that he had not been dispatched because Respondent was only re- quired to honor one name request for every five open- call requests. Thomas later admitted that the alleged "one-for-five" rule did not exist. Thomas also accused Strickland of acting as a contractor in violation of union rules, and he offered Strickland's alleged con- tractor status as an explanation for Respondent's re- fusal to dispatch Strickland. In the context of Respondent's obvious hostility and animus and its other false explanations for refus- ing to dispatch Strickland, we find that the allegation of contractor status was merely another pretextual at- tempt to mask Respondent's arbitrary and capricious refusal to dispatch Strickland. In addition, later in the proceeding, Respondent belatedly claimed that Strickland was not entitled to be dispatched because 6 Local 357, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America Los Angeles-Seattle Motor Express] v. N.L.R.B., 365 U.S. 667 (1961); Local Union 675, International Brotherhood of Electrical Workers, AFL-CIO (S & M Electric Co.), 223 NLRB 1499 (1976), and cases cited therein, enfd. 559 F.2d 1208 (3d Cir. 1977). ? International Association of Bridge, Structural and Ornamental Iron Workers, Local No. 433 (The Associated General Contractors of California, Inc.), 228 NLRB 1420, 1438 (1977). 'Id at 1437-40. 742 PAINTERS LOCAL UNION NO. 1555 he was a nonresident and further because he was not qualified to do the requested work. Respondent, how- ever, never established that Strickland lacked resident status or the ability to do the work in question. Ac- cordingly, we find that these belated and changing explanations constitute additional evidence that the explanations offered by Respondent were in fact pre- textual, and that Respondent discriminatorily refused to dispatch Strickland for arbitrary and capricious reasons in violation of Section 8(b)(l)(A) and (2) of the Act. We also find that Respondent violated Section 8(b)(l)(A) and (2) of the Act by refusing to dispatch Strickland pursuant to ACI's open-call requests on August 30, September 7, and Ocotober 19. As indi- cated above, in late July Strickland first began ques- tioning Respondent's operation of its hiring hall; in August and September Strickland's attorney sent let- ters to Respondent complaining about the failure to dispatch Strickland; and in early September Strick- land filed the unfair labor practice charges involved herein. Respondent has offered no valid explanation for failing to dispatch Strickland on the above dates and for instead dispatching individuals who were lower than Strickland on the hiring hall out-of-work list. In the absence of a valid explanation, we find that Respondent discriminatorily refused to dispatch Strickland in retaliation for his questioning of Re- spondent's operation of its hiring hall and/or because he filed the unfair labor practice charges involved herein. The record also contains numerous examples of Respondent's attempt to dissuade ACI officials from requesting Strickland's dispatch and a number of ex- amples in which Respondent sought to have ACI dis- charge Strickland after he was in fact working. Cred- ited testimony establishes that Respondent's officials told ACI officials and Strickland that such action was taken in retaliation for Strickland's personal and legal attempts to obtain a dispatch from the hiring hall. We find therefore that Respondent further violated Sec- tion 8(b)(l)(A) and (2) of the Act when it retaliated against Strickland by attempting to induce ACI offi- cials to discriminate against him in violation of Sec- tion 8(a)(3) of the Act. In addition, the record establishes that shortly after Strickland's attorney sent a letter to Respondent com- plaining about Respondent's operation of its hiring hall, Respondent filed an internal union charge alleg- ing that Strickland had violated a union rule by act- ing as a contractor. Subsequently, after Strickland's attorney sent a second letter and Strickland filed un- fair labor practice charges, the internal union com- plaint was prosecuted, Strickland was fined, and his name was taken off the hiring hall list. We have al- ready found that such allegations by Respondent were in fact a pretextual attempt to mask its arbitrary and capricious refusal to dispatch Strickland. We fur- ther find that in the context of Respondent's clear hostility and animus directed toward Strickland, the pretextual nature of the internal union charge, and the other retaliatory actions taken by Respondent against Strickland, the internal union charge was also filed in retaliation for Strickland's contacting an at- torney; and we find that Strickland was later pros- ecuted, fined, and his name was taken off the hiring hall list because he had questioned Respondent's op- eration of the hiring hall and/or filed unfair labor practice charges with the Board.9 Thus, we conclude that by its conduct involving the internal union charge and fine Respondent violated Section 8(b)(l)(A) and that, by taking Strickland off the hir- ing hall list, Respondent violated Section 8(b)(1)(A) and (2). Finally, we also find that Respondent violated Sec- tion 8(b)(1)(A) of the Act when it threatened on nu- merous occasions to refuse to dispatch Strickland be- cause he had contacted an attorney and/or had filed unfair labor practice charges with the Board.' ° The Effect of the Unfair Labor Practices Upon Commerce The activities of Respondent set forth above, occur- ring in connection with the operations of Alaska Con- structors, Inc., as described in section I of the Admin- istrative Law Judge's Decision, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead and have led to labor disputes burdening and obstructing commerce and the free flow thereof. CONCLUSIONS OF LAW' i. Painters Local Union No. 1555, affiliated with the International Brotherhood of Painters and Allied Trades, AFL-CIO, the Respondent herein, is a labor organization within the meaning of Section 2(5) of the Act. 9 In finding that Respondent unlawfully retaliated against Strickland, the Administrative Law Judge relied in part on G.C. Exh. 14, the transcript of the recording of Strickland's intraunion trial. Respondent filed exceptions to the Administrative Law Judge's reliance on the transcript of the recording, contending, inter alia, that the transcript was incomplete and had not been properly authenticated. As indicated above, we find that the record, aside from the transcript of the tape, overwhelmingly establishes that Respondent unlawfully retaliated against Strickland. Since we find it unnecessary to rely on G.C. Exh. 14, we find it unnecessary to determine the admissibility and probative value of that exhibit. In addition, the record does not support the Administrative Law Judge's finding that Thomas was a member of the union appeal committee, and accordingly we have not relied upon that finding in reaching our determination that Respondent unlawfully retaliated against Strickland. o International Brotherhood of Boilermakers, Iron Ship Builders, Black- smiths, Forgers & Helpers. Local Lodge 587, AFL-CIO (Stone d Webster Engineering Corporation), 233 NLRB 612 (1977). 743 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Alaska Constructors, Inc., Party in Interest, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By discriminatorily failing to dispatch Stephen Strickland pursuant to the exclusive referral system under its collective-bargaining agreement with Alaska Constructors, Inc., on July 20, 1977, and on other relevant subsequent dates, Respondent has vio- lated Section 8(b)(1)(A) and (2) of the Act. 4. By retaliating against Stephen Strickland by at- tempting to cause Alaska Constructors, Inc., to dis- criminate against Stephen Strickland in violation of Section 8(a)(3) of the Act because he had contacted an attorney and questioned Respondent's operation of its exclusive referral system and/or because Strick- land had filed unfair labor practice charges with the Board, and by taking his name off the hiring hall list for the same reasons, Respondent has violated Sec- tion 8(b)(1)(A) and (2) of the Act. 5. By filing an internal union charge, prosecuting that charge, and fining Stephen Strickland because he had contacted an attorney and questioned Respon- dent's operation of its exclusive referral system and/ or because he filed unfair labor practice charges with the Board, Respondent has engaged in unfair labor practices in violation of Section 8(b)(1)(A) of the Act. 6. By threatening to refuse to dispatch Strickland because he had contacted an attorney and questioned Respondent's operation of its exclusive hiring hall system and/or because he filed unfair labor practice charges with the Board, Respondent has violated Sec- tion 8(b)(1)(A) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent is engaged in cer- tain unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action necessary to effectuate the policies of the Act. Respondent shall be ordered to make Stephen Strickland whole for any loss of earnings that he may have suffered by reason of Respondent's discrimina- tory referral practices subsequent to July 20, 1977. Such loss of earnings will be computed in the manner proscribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest computed in accordance with Florida Steel Corporation, 231 NLRB 651 (1977)." Respondent shall also be ordered to refund to Strickland any discriminatory fine or penalty paid by Strickland, with interest computed in accordance with Florida Steel Corporation, supra, and Respon- 1i See, generally, Isis Plumbing Healing Company, 138 NLRB 716 (1962). dent shall be ordered to expunge from its files any record of the discriminatory intraunion charge and penalties assessed against Strickland. In addition, we shall direct Respondent to cease and desist from en- gaging in any other violations of the Act and to post an appropriate notice. We believe that the nature, repetitiveness, and vin- dictiveness of Respondent's unfair labor practices against Strickland tend to demonstrate a total disre- gard of Strickland's statutory rights and its own obli- gations under the Act. Accordingly, in agreement with the Administrative Law Judge, we find that a broad cease-and-desist order is clearly warranted. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that Respondent, Painters Local Union No. 1555, affiliated with the Interna- tional Brotherhood of Painters and Allied Trades, AFL CIO, Fairbanks, Alaska, its officers, agents, and representatives, shall: I. Cease and desist from: (a) Refusing to dispatch Stephen Strickland or any other employee pursuant to its exclusive referral sys- tem for arbitrary, capricious, or discriminatory rea- sons. (b) Retaliating against Stephen Strickland or any other employee because such employee has contacted an attorney and questioned Respondent's operation of its exclusive referral system and/or filed unfair la- bor practice charges with the Board by threatening to refuse and refusing to dispatch such employee, by threatening to institute and instituting union disci- plinary action against such employee, or by attempt- ing to cause the Party in Interest, Alaska Construc- tors, Inc., to discriminate against such employee in violation of Section 8(a)(3) of the Act. (c) In any other manner restraining or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Make whole Stephen Strickland for any loss of earnings which he ma3 have sustained by reason of Respondent's discriminatory action against him in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due un- der the terms of this Order. (c) Withdraw, rescind, and expunge from its rec- 744 PAINTERS LOCAL UNION NO. 1555 ords any evidence of the discriminatory discipline, fine, and penalty imposed upon Stephen Strickland in November 1977 and refund with interest any money paid by Strickland pursuant to the above-mentioned discriminatory fine. (d) Post at its business offices, meeting halls, and dispatch halls copies of the attached notice marked "Appendix."'2 Copies of said notice, on forms pro- vided by the Regional Director for Region 19, after being duly signed by Respondent's authorized repre- sentative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to members are cus- tomarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Mail to the Regional Director for Region 19 signed copies of notice for posting by Alaska Con- structors, Inc., if willing, in places where notices to employees are customarily posted. (f) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 2 In the event that this Order is enforced by a Judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the Na- tional Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to dispatch Stephen Strickland or any other employee pursuant to our exclusive referral system for arbitrary, capri- cious, or discriminatory reasons. WE WILL NOT retaliate against Stephen Strick- land or any other employee because they have contacted an attorney and questioned the opera- tion of our exclusive referral system and/or filed unfair labor practice charges with the Board by: (1) Threatening to refuse and refusing to dispatch Stephen Strickland or any other em- ployee. (2) Threatening to institute and instituting union disciplinary action against Stephen Strickland or any other employee. (3) Attempting to cause Alaska Construc- tors, Inc., or any other employer to discrimi- nate against Stephen Strickland or any other employee in violation of Section 8(a)(3) of the Act. WE WILL NOT in any other manner restrain or coerce employees in the exercise of rights guar- anteed by the Act. WE WILL make Stephen Strickland whole, with interest, for any loss of earnings which he may have sustained because of our unlawful re- fusal to dispatch him to Alaska Constructors, Inc., on July 20, 1977, and on all other relevant subsequent dates. WE WILL withdraw, rescind, and expunge from our records any evidence of the discrimina- tory discipline, fine, and penalty imposed upon Stephen Strickland in November 1977 and re- fund with interest any money paid by Strickland pursuant to the above-mentioned discriminatory fine. PAINTERS LO('AI. UNION No. 1555, AFFILI- ATED WITH TE INTERNATIONAL BROTHER- HOOD OF PAINTERS AND ALLIED TRADES, AFL-CIO DECISION STATEMENT OF THE CASE BERNARD J. SEFF, Administrative Law Judge: The unfair labor charge in Case 19-CB-2997 was filed on September 9, 1977.' The case came on for hearing in Fairbanks, Alaska, on March 21 and 22, 1978. The complaint, issued January 16, 1978. and amended on March 21, 1978, alleged that the Painters Local Union No. 1555. affiliated with the Interna- tional Brotherhood of Painters and Allied Trades, AFL- CIO, hereinafter called Respondent, which has a contract with Alaska Constructors, Inc., hereinafter called ACI, which contains an exclusive hiring hall provision, failed and refused to dispatch Stephen Strickland to ACI for unlawful, arbitrary, invidious, and capricious reasons and thereby violated Section 8(b)( 1) and (2) of the National Labor Rela- tions Act, as amended. Upon the entire record in this proceeding and based upon my observation of the demeanor of the witnesses. I make the following: FINDINGS OF FACT I. JURISDICTION Alaska Constructors, Inc., is an Alaska corporation with offices and places of business located at Anchorage and Fairbanks, Alaska. It is engaged in the construction of a U.S. Army Corps of Engineers project known as Melones Dam. ACI, during the past 12 months, sold and shipped di- rectly from its Alaska facilities finished products valued in excess of $50,000 to points outside the State of Alaska. ACI, during the past 12 months, in the course and con- duct of its business operations, purchased and caused to be I All dates In this Decision are within 1977, unless otherwise stated. 745 DECISIONS OF NATIONAL LABOR RELATIONS BOARD transferred and delivered to its Alaska facilities goods and materials valued in excess of $50,000 which were trans- ported to said facilities directly from States other than the State of Alaska. ACI is, and has been at all times material herein, an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. I so find. II. TIHE LABOR ORGANIZATION INVOLVED It was admitted in the pleadings, and I find, that Respon- dent has been at all times material herein a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The principal issues which were raised by the pleadings are: 1. Did Respondent fail and refuse to dispatch Strickland to employment positions to which Strickland is entitled in Respondent's exclusive hiring hall system to include a job with ACI? 2. Did Respondent engage in the conduct described, su- pra, for unlawful, arbitrary, invidious, and capricious rea- sons? 3. Was the reason for not dispatching Strickland because he had filed charges with the National Labor Relations Board? B. The Pleadings The General Counsel filed a motion to correct the tran- script. This motion was unopposed, and I hereby grant the said motion. C. The Facts On or about April 12, 1976, Strickland moved to Fair- banks, Alaska, where he has since resided. He applied in November and became a member of Respondent Union about December 1976 and has been a member ever since. Respondent dispatched Strickland to his first union paint- ing job in Alaska on or about November 1976. That job was with Peter Kiewitt and Sons on the Slope where Strick- land worked as a painter and phenolic coater.2 Strickland was laid off from the Kiewitt job due to reduction in force on or about January 2, 1977. Thereafter, Strickland was redispatched by Respondent on or about January 19 to ACI on the Slope. He worked for ACI until June 16 when he was laid off due to a reduction in force. After his June 16 layoff, Strickland immediately went to Respondent's hiring hall and signed the out-of-work list on June 17. He signed about 10 or 12 names above fellow union member, Gerald Parker. He did not immediately re- ceive a dispatch through Respondent's hiring hall, and he 2 A phenolic coater is a painter whose specialty requires about 2 weeks of intensive training. decided to do a little "pot-lugging."3 At or about this time, Strickland placed a small ad in the Fairbanks evening newspaper classified ads on or about July 28. On August 3, after being reprimanded by Clarence Thomas, for "adver- tising as a contractor." Strickland told the paper to remove his advertisement, which was accomplished by the time the August 5 newspaper was published. During the time Strick- land was not sent to the Slope, he did three small pot- lugging jobs between his June 16 layoff from ACI and his August 3 visit to Thomas at Respondent's hiring hall. Thomas testified that Respondent tried to contact Strick- land about a name request made on July 20 by ACI, and it is not disputed that Respondent never did contact Strick- land on this matter. By sheer happenstance, Strickland was visiting a fellow painter and union member, Mike Moore, on or about July 25 when ACI Painting Superintendent William Reed telephoned Moore from the Slope. After speaking with Moore, Reed talked with Strickland and told him that ACI had a name request for Strickland on July 20 at Respondent's hiring hall. Reed told Strickland to hurry to get his dispatch from Respondent's hiring hall so that Strickland could come to work for ACI on the Slope. At this point, Strickland was painting a house for a Mr. Titus, together with two members of the Union, Moore and Matheson. It is to be noted that charges were filed by the Union against Strickland for "contracting" but not against Moore and Matheson. Strickland completed work for the Titus house on August 2. Immediately thereafter, on the morning of August 3, Strickland went to Respondent's hiring hall and spoke with Clarence Thomas about being dispatched pursuant to ACI's July 20 name request for Strickland. Thomas said that Respondent had a problem in that employers were making too many name requests and were not making enough open calls from the general out-of-work lists. Thomas then went on to explain an alleged one-for-five rule: Thomas said Respondent had to honor only one name request for five open-call requests made by employers. Thomas then continued by accusing Strickland of acting as a contractor. Thomas said he had seen Strickland's ad in the yellow pages of the Fairbanks telephone book and that he had personally called Strickland's answering service to verify that it was Strickland who had the ad in the yellow pages. Thomas did not then accuse Strickland of doing any nonunion work or of actual contracting but only of having had an ad in the yellow pages. Thomas told Strickland that due to Strickland's ad in the yellow pages, Thomas consid- ers Strickland a "contractor," and thus Respondent would not dispatch Strickland for 30 days. In view of the comments made by Thomas with respect to Strickland's ad in the local newspaper, he immediately went to the newspaper on August 3 and canceled the small painting ad that he had placed in the paper on July 28. Strickland then went home and telephoned Reed and ex- plained that Thomas had refused to dispatch Strickland to ACI, although Thomas admitted that ACI had requested Strickland by name. Strickland then told Reed that Thomas I Pot-lugging is also referred to as "pot-lucking". In the painting trade, pot-lugging means doing free-lance painting work on one's own after making an individual contract to paint a house as opposed to a union-dispatched job. 746 PAINTERS LOCAL UNION NO. 1555 had specifically mentioned the alleged one-for-five rule as the reason for not dispatching Strickland. Reed stated that there was no such one-for-five rule, and that he would see that Thomas got straightened out on that matter. Reed also said that he would call Thomas and demand Strickland's immediate dispatch. On the following morning Strickland returned to Respondent's office and talked to Thomas. At this point Strickland confronted Thomas and told him that when he talked to Reed he learned that there was no one- to-five rule. Thomas then admitted that name requests must be honored by Respondent for anyone who has worked for the requesting employer within the last 120 days regardless of the ratio of such name requests to open calls. Strickland explained to Thomas that he had already cancelled the newspaper ad the day before, after talking to Thomas. Strickland then explained his need to do some work to earn a living while Respondent had no dispatches for him. Thomas admitted that everybody, including Thomas, did "pot-lugging" and Thomas bragged that he, Thomas, had been the biggest "pot-lugger" in town. Strickland testified that he had placed an ad in the yellow pages and had se- cured an answering service phone number prior to becom- ing a union member because he once considered that he would become a full-fledged contractor beginning in the spring of 1977. Strickland explained that he had never got- ten licensed, bonded, or insured as a contractor because he had decided not to become a contractor about the time he joined the Union in November 1976. Strickland also told Thomas that he thought the penalty imposed on him by Thomas of not giving him a dispatch for 30 days was very severe. Strickland also explained that he had not responded to any requests that had been made as a result of the yellow pages ad and he vowed not to do any futute "pot-lugging." As a result of this explanation, Thomas ended the conversa- tion by telling Strickland that he was reducing Strickland's penalty to about 7 days of ineligibility for dispatch. Thomas also said that if Reed called requesting Strickland by name on the following Monday or Friday, Thomas would be in- clined to allow Strickland's dispatch. On or about August 3 or 4, Strickland testified that he had a second conversation with Reed. At this time it was explained to Strickland that ACI instructed him not to make a name call for Strickland because his superiors at ACI did not want to "make waves" with Respondent Union. In view of the fact that Strickland did not get a dispatch in July or early August, he felt that he had been unfairly discriminated against; therefore, he hired a lawyer who engaged in vigorous correspondence with Respondent Union. On August 23, Strickland's attorney sent a letter complaining about Strickland's failure to be dispatched in late July. On September 8 Strickland's attorney sent a sec- ond letter to Respondent. These letters caused great con- cern to Respondent who, in obvious retaliation, filed charges against Strickland on August 30. It is clear that the substance of Thomas' charge against Strickland reveals that Respondent was much more con- cerned with retaliating against Strickland than with enforc- ing its rules. The basis of the charges against Strickland were that he allegedly advertised as a painting contractor in the classified section of the Fairbanks telephone directory and offered to do contracting and subcontracting work. However, it should be pointed out that as of August 30 when Thomas filed these retaliatory charges, he already knew that Strickland's yellow page ad had been placed be- fore Strickland became a union member. The General Counsel also points out that nowherre in Respondent's con- stitution, bylaws, or contracts is there to be found any pro- vision outlawing a member's advertising. It also shows that Thomas admitted that all union members did "pot-lugging" and that Thomas himself did not care about that. Thomas had even been the "biggest pot-lugger." It is significant that Thomas offered no evidence in sup- port of his charge that Stnckland was oing contracting work. Furthermore, it should be pointed ( ut that the record clearly shows that Thomas was upset that Strickland had filed NLRB charges against the Union and that Respon- dent would not have tried Strickland if not for Strickland's seeing an attorney, causing "dissension" at the Union, and causing Respondent to spend money defending against Strickland's claims. In further proof that the motive behind bringing charges against Strickland had its genesis in the irritation that Thomas felt about the steps which Strickland had been taking to protect his own interests, Thomas phoned Morrison, a senior employee of ACI, and told Mor- rison he did not want ACI to call Strickland as he was in the process of suing the Union-it was bad for the Union- it was creating turmoil. Phil Morrison, who is ACl's superintendent, testified that Respondent's shop steward, George Straughn, phoned Morrison to make inquiry about Strickland; and Straughn said that he did not want ACI to call him back anyway as Mr. Strickland was in the process of suing the Union, and it was bad for the Union, and it was creating turmoil. The reference to suing the Union concerns itself with the unfair labor practice charges filed by Strickland against Respon- dent, which is the subject matter of the present litigation. It is clear from the record that both Thomas and Straughn testified that Strickland, because he brought suit against Respondent, had caused resentment against Strickland, and for that reason he was not going to be dispatched to ACI. D. Respondent' Denial of the Agency of Thomas Respondent's answer denied that Clarence Thomas was an agent of the Union. However, the record evidence is to the contrary. General Counsel's brief points out, without refutation, that Thomas has held the positions of business agent, business representative, and financial secretary of the Union. In these varied positions his official duties include policing Respondent's collective-bargaining agreements, or- ganizing, dispatching members to jobs, and having respon- sibility for Respondent's financial status including collec- tions and financial record keeping. Thomas is Respondent's only official who is present on a daily basis at the union hall. It is clear from the record, and I find, that Thomas is an officer and agent of Respondent. Similarly, George Straughn is Respondent's shop steward of the ACI project. In this capacity he is jointly responsible with the Employer's agents to distribute overtime among employees. He is also Respondent's official representative on the slope. These facts are not denied and constitute the basis for my additional finding that Straughn is an agent of the Union. 747 DECISIONS OF NATIONAL LABOR RELATIONS BOAR[) E. Intraunion Trial of Strickland Strickland came to trial on November 10, 1977. Accord- ing to the testimony of Thomas, the basis for the trial in- cluded (I) contracting; (2) the fact that Strickland was al- leged not to be an Alaska resident, and there is a requirement that creates a preference for Alaska residents; and (3) he did not follow the grievance procedure but in- stead filed a charge with the NLRB and hired a private attorney. It is significant that the only matter that came up before the union committee concerned itself with contracting. There is no evidence in the record to indicate that Strick- land ever was a contractor. No such evidence was adduced at his trial. Furthermore, this is the only subject that came up during the course of the trial before the union commit- tee. With respect to the matter of Strickland being a resident of Alaska, there is evidence in the record that Strickland obtained an Alaska voting card before his election to the Union in 1976. He voted in Alaska in 1976 and 1977. He has an Alaska driver's license and owns real estate south of Fairbanks. Furthermore, Strickland testified that neither Thomas nor any other union official questioned him about his status as an Alaska resident. This matter is mentioned in the instant decision to demonstrate that Respondent's charges against Strickland have no substance in fact and, in effect, represent Respondent's clutching at straws in order to justify its failure to dispatch Strickland. With respect to not following the grievance procedure by filing a charge with the NLRB and hiring a private attor- ney, it is to be noted that the filing of the charge with the NLRB is a protected action, and the National Labor Rela- tions Act in Section 10(a) states that the Board "is empow- ered ... to prevent any person from engaging in any unfair labor practice ... affecting commerce. This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law or otherwise." Therefore, this too is a charge against Strick- land without foundation in fact or law; and together with the other charges about not being an Alaska resident and about being a contractor, all of these reasons have no sub- stance in fact and represent convincing reasons for conclud- ing that the discipline imposed on Strickland is in violation of Section 8(b)(1)(A) and (2) because it represents arbitrary and invidious reasons for failing to dispatch him to jobs he was entitled to receive, F. The Hostility Directed Against Strickland by Thomas Respondent's trial board conducted its trial on Novem- ber 10, 1977. Respondent found Strickland guilty of "con- tracting," imposed on him a fine of $1,125, and suspended him from its out-of-work list beginning November 23. At the general membership meeting of December 8, Respon- dent's president called upon the membership to ratify the trial board's action. Strickland was permitted to explain his side of the matter. After hearing Strickland, the member- ship recognized the injustice which Respondent had visited upon Strickland and the membership voted to reduce the fine to $200 and to eliminate any suspension of Strickland from the out-of-work list. Thomas and Respondent refused to accept the member- ships' decision, and on December 14 Thomas wrote Strick- land a letter reinstating the trial board's original penalties. Thereafter, the NLRB and ACI arranged for name-call requests for Strickland to minimize any damages Respon- dent might owe Strickland as a result of the unfair labor practice charges. At this point Thomas backed off his threat not to dispatch Strickland until he paid his fine of $1,125, and Strickland was dispatched to ACI by January 18, 1978, pursuant to a name-call request. This did not terminate the vendetta against Strickland. Shortly after he arrived at ACI, Union Steward Straughn approached ACI's Painting Superintendent Reed and dis- cussed Strickland's employment with ACI in Reed's office. Morrison, ACl's construction superintendent, testified that within 2 days after Strickland was dispatched to ACI in January 1978, Straughn and Reed approached Morrison in the latter's office. Straughn attempted to pressure Morrison to terminate Strickland's employment. He explained this action by stating that Strickland was suing Respondent in relation to the unfair labor practice trial and because Strickland had caused problems for the Union and was not good for the Union. Reed was the only witness to the above-described conver- sation between Straughn and Morrison. Reed corroborated Morrison's testimony as being accurate and complete. In addition, Straughn also spoke alone with Reed about the same subject, and Reed specifically recalled that Straughn came into Reed's office about 9:30 a.m. Straughn told Reed that Strickland was not good for the Union and that he was a problem because he was going to sue the Union at a trial in March 1978 (this refers to the unfair labor practice charge); Straughn then asked Reed to terminate Strick- land's employment with ACI. Reed refused to take this ac- tion. The testimonies of Reed and Morrison must be credited. They were neutral witnesses and gave accurate, straightfor- ward, candid, and mutually corroborative testimonies. It should also be noted that Respondent offered no evidence to contradict the testimonies. It should be further pointed out that Respondent did not call Straughn as a witness and did not attempt to explain its failure to do so. This fact leads to an inference, which I make, that Straughn's testi- mony would have supported that of Morrison and Reed and would have been adverse to Respondent. The General Counsel further points out in his brief that neither Reed nor Morrison had any real interest in this litigation, and that they were at the trial pursuant to the General Counsel's subpoena. The testimonies of Reed and Morrison were, for the most part, unrefuted. In one instance Thomas disputed Morrison's testimony in that Thomas denied that he called Morrison on September 6 to tell Morrison not to name re- quest Strickland again. In this connection, it should be noted that Morrison's version of the facts is much more credible than Thomas'. Thomas had an important stake in the litigation and Morrison did not. Furthermore, Morri- son's recollection is much more consistent with Strickland's unrefuted testimony that on September 6 Thomas told Strickland that Thomas would not dispatch Strickland to ACI again and for Strickland to thus call Reed and tell him not to request Strickland again. Morrison's recollection of 748 PAINTERS LOCAL UNION NO. 1555 this instance has special validity in view of the fact that Morrison kept a written record of the call. With respect to credibility, it should be pointed out that Strickland's testimony was straightforward and impressive. He did not hedge in his answers nor did he evade the ques- tions asked of him. For the most part, his testimony was entirely consistent, and in many essential respects Strick- land's testimony was corroborated by Reed. I was im- pressed with the demeanor and candor of Reed, Morrison, and Strickland, and I credit their testimony. On the other hand, Thomas was evasive, inconsistent, and told conflicting stories. He testified that when he re- ceived a name call for Strickland on July 20 he attempted to reach Strickland by personally calling the telephone number that Strickland had listed as a place where he could be reached. It later developed that he did not make the call at all. The call was made by the secretary of Thomas who claimed that she could not reach Strickland. The testimony of Thomas was overladen with hostility directed against Strickland, and his manner while testifying from the stand created a negative impression on me to such an extent that I do not credit the testimony given by Thomas. The General Counsel, in his brief, calls attention to the fact that Thomas admitted knowing that Strickland signed Respondent's out-of-work list on June 17, 1977, but at the hearing Thomas denied knowledge that Gerald Parker was about 10 names below Strickland on that list. Despite this fact, the record shows that Respondent had an open call on October 19, and that Thomas sent two men (Kim Sik and Gerald Parker) to ACI to fill the jobs but did not dispatch Stephen Strickland. Strickland made a tape recording of the testimony given at the Union's trial board which was received in evidence as General Counsel's Exhibit 14. Pages 6 and 7 of this tran- script make it clear that Thomas' conduct was retaliatory and directed against Strickland out of a strong feeling of resentment entertained by Thomas about Strickland. The General Counsel states in this connection that "Thomas admits that he would not have filed charges against Strick- land and Respondent would not have tried Strickland if it was not for Strickland's seeing an attorney, causing 'dissen- sion' at the Union, causing Respondent to spend money defending against Strickland's claims and Strickland having done 'a number of things.'" In sum, the record demonstrates that the action taken against Strickland was motivated by unlawful, arbitrary, and invidious reasons. Strickland was engaging in protected activities when he filed NLRB charges and when he made efforts to determine Respondent's hiring hall practices. I so find. G. Concluding Findings It is well settled law that a union which undertakes to operate an exclusive hiring hall pursuant to a contract or other arrangement with employers as the exclusive source of recruitment of employees is obligated to treat applicants equally and to refer them to jobs without regard to their union membership or loyalty or lack of it. If the union fails to observe this obligation and administers a hiring hall in a discriminatory manner, it clearly violates Section 8(b)(2) and (1)(A) of the Act.' Additional issues in the case at bar concern Respondent's removal of Strickland's name from its out-of-work list and its refusal to dispatch him to jobs for which he was qualified at ACI. These acts of Respondent were unlawful, arbitrary, and capricious and were violative of Section 8(b)(1)(A) and (2) of the Act. Judge Pannier addressed himself to these problems in the case of International Longshoremen's and Warehousemen's Union, Local 13 (Pacific Maritime Association). 228 NLRB 1383, 1385 (1977): Integral to the policy underlying both Section 8(b)(1)(A) and (2) of the Act was the intent to separate membership obligations owed by employees to their labor organizations from the employment rights of those employees. "The policy of the Act is to insulate employees' jobs from their organizational rights." The Radio Officers' Union of the Commercial Telegraphers Union, AFL v. N.L.R.B., 347 U.S. 17, 40 (1954). More specifically Section 8(b)(1) and (2) and Section 8(a)(1), (2). and (3) of the Act "form a web, of which 8(b)( I)(A) is only a strand, preventing the Union from inducing the employer to use the emoluments of the job to en- force the Union's rules. Scofield et al. v. N.L. R.B., 394 U.S. 423, 429 (1969). Similarly §§8(a)(3) and 8(b)(2) were designed to allow employees to freely exercise their right to join unions, be good, bad, or indifferent members, or abstain from joining any union without imperiling their livelihood." . . . Consequently, while the labor organization is free, under the proviso to Sec- tion 8(b)(1 })A). "to prescribe its own rules with respect to the acquisition or retention of membership therein," its ability to enforce such rules is restricted by "barring enforcement of a union's internal regulations to affect a member's employment status." N.L.R.B. v. Allis- Chalmers Manufacturing Co. et al., 388 U.S. 175, 195 (1967). For example, while a labor organization may freely fine a member for violation of a membership rule, "the same rule could not be enforced by causing the employer to exclude him from the work force or by affecting his seniority without triggering violations of Section 8(b)(1), 8(bX2), 8(a)(1), 8(a)(2), and 8(a)(3). An exception to this prohibition against labor or- ganization interference with employees' employment is provided under Section 8(a)(3) of the Act, allowing la- bor organizations to seek the discharge of employees who have failed to comply with agreements requiring "as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agree- ment ... " Yet, this is a quite limited exception, for "the burdens of membership upon which employment may be conditioned are expressly limited to the pay- ment of initiation fees and monthly dues." N. L R. B. v. General Motors Corp., 373 U.S. 734, 742 (1963). "If the Union imposes any other qualifications and conditions for membership with which he is unwilling to comply, Local 357, International Brotherhood of Teamsters, Chauffeur, Warehouse- men and Helpers of America Los Angeles-Seattle Motor Express] v. N.L. RB., 365 U.S. 667 (1961); Local Union 136. Muskingum alley District Council of the United Brotherhood of Carpenters and Joiners of America. AFL CIO, el al (Frank lack Co.), 165 NLRB 1040. 1041 (1967). 749 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such an employee may not be entitled to membership, but he is entitled to keep his job." Union Starch and Refining Company, 87 NLRB 779, 784 (1949), enfd. 186 F.2d 1008 (C.A. 7, 1951), cert. denied 342 U.S. 815 (1951). So far as appears from the record, the reasons assigned by Respondent's dispatching officer, Thomas, whether he was guilty of "contracting; inquiring into the way in which Respondent's hiring hall functioned; hiring a private attor- ney and filing the charge with the NLRB which is the sub- ject matter of the instant litigation," there is no proof that he ever engaged in contracting. Strickland never had been licensed, bonded, or insured as a contractor. He did put an ad in the telephone company's yellow pages and in a local newspaper, but cancelled the ad when Respondent objected to it. The filing of the charge with the NLRB is a protected right. Strickland also had a right to inquire into the func- tioning of Respondent's hiring hall. Applying the principles set forth above to the facts of the instant matter, it is clear that Respondent refused to dis- patch Strickland to ACI jobs and thus he was denied em- ployment for unlawful, arbitrary, discriminatory, and capri- cious reasons and by so doing Respondent violated Section 8(b)(1)(A) and (2) of the Act. I so find. I further find that Strickland was not obligated to submit his complaint for adjustment to the appeals committee or to internal union procedures, especially since one of the members of the ap- peals committee was Thomas, who was the source of the problem that developed in this case. Pursuant to Section 10(c) of the Act, as amended, it is recommended that the Respondent be ordered to cease and desist from engaging in the unfair labor practices found and that it take certain affirmative action designed to effectuate the policies of the Act. By resorting to its dispatch hall, it was relying on "an employment-related sanction" regarding an internal rule. Respondent has taken the step from internal enforcement to external enforcement of its rule and, in this manner, has violated Section 8(b)(I)(A) and (2) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE. The activities of Respondent set forth above, occurring in connection with Respondent's operations described in sec- tion I above, have a close, intimate and substantial relation- ship to trade, traffic, and commerce among the several States and tend to lead, and have lead to labor disputes burdening and obstructing commerce and the free flow of commerce. Upon the basis of the findings of fact and upon the entire record in this proceeding, I hereby make the following: CONCLUSIONS OF LAW I. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 2. Alaska Constructors, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. Under the contract there are two types of dispatches: "name" requests (or name calls) and "open" calls. Name calls are specific requests from an employer to Respon- dent's hiring hall for a specificly named employee. The con- tract provides that an employer may make a name request for any employee who has worked for the employer in the past 120 days. An employee properly requested by name is automatically dispatched regardless of his position on Re- spondent's hiring hall out-of-work list or whether he is signed up on the list. Open calls are requests for dispatch of employees not specifically named. Such employees are dis- patched according to their ranking on the out-of-work list being used, with the "highest" (and thus earliest) sign of having dispatch priority over all those signed under him. 4. Refusal to dispatch Stephen Strickland, despite ACI having made a name request for him on July 20, 1977 (al- legedly and incorrectly because he was a contractor) was based on irrelevant, invidious, or unfair considerations. By so doing Respondent has engaged in unfair labor practices within the meaning of Section 8(b)( )(A) and (2) of the Act. 5. The unfair labor practices set forth above affect com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Since I have found that Respondent has engaged in un- fair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act, I shall recommend to the Board that Respondent be ordered to cease and desist from engaging in those unfair labor practices. I will also recommend to the Board that Respondent take certain affirmative action in order to effectuate the policies of the Act. Such affirmative action will include making Ste- phen Strickland whole for his loss of earnings resulting from the unfair labor practices involving him as specified above. Such loss of earnings will be computed on a quar- terly basis in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950); with interest thereon as established by the Board in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and at the rate of inter- est as determined by the Board in Florida Steel Corporation, 231 NLRB 651 (1977). In view of the nature of Respondent's unfair labor prac- tices found herein, I shall also recommend to the Board that Respondent be required to cease and desist from infringing in any other manner on the rights of the employees guaran- teed by Section 7 of the Act. See International Brotherhood of Electrical Workers, Local 112, AFL-CIO (Ajax Electric Company), 231 NLRB 162, fn. 2 (1977). See also Local No. 78, United Brotherhood of Carpenters and Joiners of Amer- ica, AFL-CIO (Murry Walter, Inc.), 223 NLRB 733 (1976), and Local Union No. 77 of the International Brotherhood of Painters and Allied Trades, AFL-CIO (Colorite, Inc.), 222 NLRB 607 (1976). [Recommended Order omitted from publication.] 750