United Brewery Workers

UNITED BREWERY WORKERS 915 International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO; Local No. 8 International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO, and Thomas Owens, Business Agent (Considine Distributing Co., et al.) and International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America. Cases 1-CB-1053 and 1-CB-1070 July 28, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING, JENKINS, AND ZAGORIA On April 14, 1966, Trial Examiner Ramey Donovan issued his Decision in the above-entitled proceeding, finding that Respondents had engaged in and were engaging in certain unfair labor prac- tices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondents had not engaged in certain other alleged unfair labor practices and recommended that the allegations of the complaint pertaining thereto be dismissed. Thereafter, Respondents and the General Counsel filed exceptions and supporting briefs. The National Labor Relations Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Deci- sion, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations 1 of the Trial Examiner, as modified herein. The Trial Examiner found that Respondents vio- lated Section 8(b)(1)(A) and (2) of the Act prior to July 7, 1965, as to Thomas Walsh, prior to July 11, 1965, as to Robert Moore, Charles Vincent, and James Farrell, and prior to July 20, 1965, as to Ralph Kirk, by failing to accord these employees fair and impartial treatment in making job referrals through its exclusive hiring hall. Although the General Counsel does not except to these findings, he does except to the Trial Examiner's failure to find that Respondents had knowledge prior to the aforesaid dates that these employees were Team- sters adherents. The General Counsel contends that the evidence warrants a finding that Respond- ents' improper listing of, or failing to list, the names of these employees on the referral lists from mid-June 1965, was motivated by their known or suspected Teamsters adherency or sympathy, and that such conduct constituted violations of Section 8(b)(1)(A) and (2) of the Act. The General Counsel further contends that such a finding would render it unnecessary to rely, as did the Trial Examiner, on the Miranda Fuel Company doctrine.2 We find merit in the General Counsel's contention. The record reflects that a regularly scheduled monthly meeting of Respondent Local 8 was to be held June 6, 1965. Prior thereto, Ralph Gilman, a business agent of Respondent Local 8, notified the membership that the question of affiliation with the Teamsters would be raised at this meeting and urged the members to attend. The meeting was held as scheduled and the question of disaffiliation from Respondent International was debated for several hours. Gilman then moved to dissolve Respondent Local 8 and to transfer all of its assets and bargain- ing rights to an affiliate of the Teamsters. This resulted in a walkout by Thomas Owens, also a business agent of Respondent Local 8 and a party Respondent herein, and those members opposed to any such affiliation. A substantial number of mem- bers remained and continued the meeting with Frederick Hoar, vice president of Respondent Local 8, presiding. A vote was taken, and the tally was 143 to 1 for dissolving Respondent Local 8 and for affiliating with the Teamsters. Steps were taken at this meeting to establish Teamsters Local 8, and a new set of officers was elected. During the following week of June 7, Gilman and Respondent Owens contested each other's right to possession of the union hiring hall and its property. As had been the practice in the past, Gilman arrived at the hall first and had possession. Gilman also ob- tained police protection which resulted in the removal of Respondent Owens upon his arrival. Gilman retained possession for the remainder of this' week. Respondents finally regained possession during the week of June 14, 1965, pursuant to a temporary injunction issued by the Massachusetts Superior Court. Upon repossession, Respondent Owens was primarily responsible for running the hiring hall. From that time on, however, he did not operate it in quite the same manner as theretofore. Thus, he failed to maintain the referral lists in a notebook as had been the past practice, but rather, he used vari- ous assorted sheets of paper on which he entered the names of employees seeking employment. There is testimony in the record by William Rockovits, International representative of Re- spondent International, that all five of the afore- ' Our policy normally does not require the payment of backpay by a union agent. In view of the exceptions to the Recommended Order filed on behalf of Respondents, we shall not hold Respondent Owens per- sonally liable for backpay. See Hoisting and Portable Engineers, Local4, International Union of Operating Engineers, AFL-CIO (Corey Steeple- jacks, Inc.), 141 NLRB 1231, 1232; Marble Polishers, Machine Opera- tors and Helpers, Local No. 121, AFL-CIO (Miami Marble & Tile Company), 132 NLRB 844, 845. 2 140 NLRB 181 166 NLRB No. 97 916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mentioned employees were at the hiring hall during the latter part of June and in July 1965. He esti- mated the frequency of their attendance during this period as ranging from a high of "quite frequently .. most every day" as to Walsh and a low of "a few times" as to Farrell. Despite the foregoing, Respondents did not list any of the five employees after June 18, 1965, until varying dates in July 1965. Respondents seek to explain the above failures as resulting from mistakes or human errors . While it is true that the activities of Gilman and Owens noted above must have had a disruptive effect on the operations of the hall and created considerable con- fusion, the fact remains that Respondents regained possession of the hiring hall during the week of June 14. We deem significant the Trial Examiner's characterization of Respondent Owens, a business agent of 16 years' standing , as possessing intimate knowledge of the operation of the hiring hall, and as not being prone to careless actions particularly in such a matter so important to his organization, its members, and himself. Furthermore, the referral system required no involved computations, but merely a listing in proper order of the names of those present in the hiring hall, notations of refer- rals, and a carryover of a relatively few names from one day to the next . In fact, the usual number present during the period involved herein ranged from 10 to 25 individuals, and practically all of them had been known personally to Respondent Owens for a number of years . In these circumstances, we cannot conclude that Respondent Owens ' failure to list the names of these employees was due to human error. We agree with the General Counsel 's contention that the failure to list was motivated by Respondent Owens' knowledge or suspicion that these em- ployees were Teamsters adherents . In this regard, we note the extended discussion over the critical issue of disaffiliation at the June 6 meeting, Respondent Owens' attendance thereat and strong opposition thereto , and the overwhelming vote to disaffiliate. All five employees , alleged to have been discriminated against in making referrals, were members of Respondent Local 8 , attended this meeting, voted, and shortly thereafter joined the newly formed Teamsters local. It is reasonable to conclude that Respondent Owens developed more than a passing interest in the affairs of the newly formed group, as evidenced on July 11 , 1965, when he sat in his car and observed who was entering the meeting called by Gilman at a local hotel . All mem- bers of Respondent Local 8 were invited to attend this meeting, and, as a result of the meeting, Team- sters Local 8 became Teamsters Local 22. Moreover, on July 7, 1965, Respondent Owens visited the Burke plant and accused Walsh of being a Teamster ; and earlier in mid-June 1965, when Farrell went to the hiring hall and asked Respond- ent Owens where he stood on the referral list, he received the reply that "I wasn't on the list, that I was on a Teamsters list." On the basis of the above facts , we find that, as of June 18, 1965, Respondent either knew or suspected that these five employees were Team- sters adherents, and that Respondents' failure to place their names on the referral lists from that date on was motivated either by their actual knowledge or belief of such adherency; and constituted viola- tions of Section 8(b)(1)(A) and (2) of the Act. In view of this finding , we deem it unnecessary to rely on the Trial Examiner's rationale for finding such violations as to these five employees prior to the specific dates on which he found Respondents had knowledge of their Teamsters adherency. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, and hereby orders that the Respondents, International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO; Local 8 International Union of United Brewery , Flour, Cereal, Soft Drink and Distillery Workers of Amer- ica, AFL-CIO, and Thomas Owens, Business Agent, their officers, agents, and representatives, shall take the action set forth in the Trial Ex- aminer's Recommended Order , as herein modified: Delete the fourth indented paragraph of the notice and add the following as the second indented paragraph. WE WILL, in conducting our exclusive hiring arrangement or practice , maintain a book or semipermanent type of record to reflect accu- rately, fairly, and nondiscriminatorily, the operation of the referral system from the hiring hall, and for a period of 1 year, we will disclose to the Regional Director for Region 1 or his agents the manner of operation of the hiring hall. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE RAMEY DONOVAN, Trial Examiner: The unfair labor practice charges in this case were filed on July 28 and Oc- tober 13, 1965, by International Brotherhood of Team- sters, Chauffeurs , Warehousemen & Helpers of America, herein called Teamsters. A consolidated complaint issued on November 2, 1965, and a hearing was held on January 24-27, 1966, inclusive, at Boston, Massachusetts. The complaint allegation is that Respondents, the above-captioned Local 8 and the International of the Brewery Workers Union, and Business Agent Owens, have maintained an exclusive hiring practice or arrange- UNITED BREWERY WORKERS 917 ment with five named employers t and, since June 6, 1965, in the operation of the exclusive hiring arrange- ment, have discriminated in referrals of employees and of prospective employees, and have caused or attempted to cause the named employers to discriminate against em- ployees, all in violation of Section 8(b)(1)(A) and (2) of the Act. Particularization of the complaint allegations, furnished pursuant to Respondents' motion, and a Trial Examiner's Order, are to the effect that the discrimina- tions commenced on or about June 15, 1965, and that the discriminatees were eight named individuals. Respond- ents deny that there is an exclusive hiring arrangement or practice and deny discrimination. The issue, therefore, is whether or not the evidence sustains the complaint al- legations, aforedescribed. Upon the entire record, including observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS; THE LABOR ORGANIZATIONS INVOLVED Considine Distributing Co., herein called Considine, at all material times, is a Massachusetts corporation, with a place of business in Needham, Massachusetts, and is en- gaged in the sale and distribution of malt beverages and Narragansett Western Distributing Co., herein called Narragansett Western, at all material times, is a Mas- sachusetts corporation, with a place of business in Cam- bridge, Massachusetts, and is engaged in the sale and dis- tribution of malt beverages and related products. Narragansett Boston Distributing Co., herein called Narragansett Boston, at all material times, is a Mas- sachusetts corporation, with a place of business in Dorchester, Massachusetts, and is engaged in the sale and distribution of malt beverages and related products. Burke Distributing Co., herein called Burke, at all material times, is a Massachusetts corporation, with a place of business in Dorchester, Massachusetts, and is engaged in the sale and distribution of malt beverages and related products. Schlitz Distributing Company of Massachusetts, herein called Schlitz, at all material times, is a Mas- sachusetts corporation, with a place of business in Brighton, Massachusetts, and is engaged in the sale and distribution of malt beverages and related products. All and each of the foregoing employers receive, respectively, at their places of business in Massachusetts, goods and products directly from points outside Mas- sachusetts valued in excess of $50,000. All and each of the said employers are engaged in interstate commerce within the meaning of the Act.2 Local No. 8 International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America,'AFL-CIO; and International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Work- ers of America, AFL-CIO, are labor organizations within the meaning of the Act. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of AIr_erica is a labor organization within the meaning of the Act. We refer to the Unions as the Brewery Workers and the Teamsters, respectively. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent Union, Local 8, has for many years represented employees in the brewing and beer distribu- tion industry in the Greater Boston area. The Union also has members and representative status in the soft drink industry in the same area but our attention in the instant case is focused upon the situation in the brewing industry, including distribution, during the 1965 period. During the period with which we are concerned, there was a contract in effect between the Union, or, the one hand, and a group of beer distributors in the Boston area, on the other. The latter consists of Considine, Busch, Schlitz, Narragansett Western, and Narragansett Boston.3 The Union also has a contract with Burke and another contract with Carling.4 The multiemployer contract with Considine and four other employers, aforementioned, contains a main- tenance-of-membership and union-shop provision and provides:5 The Employer agrees to notify the Union whenever additional employees are needed and also when new employees are hired. The Employer shall interview any person recommended by the Union until the position or positions are filled. The Union agrees that, when requested to do so by the Employer, it will assist the Employer in the recruiting of employees, and will do so on a non-discriminatory basis. Under the provisions of the contract, seniority status is acquired by an employee who works 60 out of 90 work- ing days with that particular employer.6 It is also pro- vided that "any employee who now has a seniority status or had a seniority status, with any Employer in the indus- try shall, by virtue of his prior experience, be credited with the equivaient of thirty (30) days of work in acquir- ing a seniority status with the new Employer."7 Section 5(d) of article I states that "Any employee with seniority status with any Employer under this contract on the date of execution thereof or who thereafter acquires seniority with an employer under this contract shall have the right to `bump' any non-seniority employee of any employer under this contract ...... The aforementioned provisions regarding seniority have been substantially unchanged in succeeding con- ' Considine Distributing Co.; Narragansett Western Distributing Co.; Narragansett Boston Distributing Co.; Burke Distributing Co.; Schlitz Distributing Company of Massachusetts. 2 Other employers who are referred to in the record include August A. Busch and Company Inc. (Budweiser), herein called Busch; Carling Brewing Company, herein called Carling, and several companies such as Cody Distributing Co.; Haffenreffer Brewing Co .; Metro-Boston Co.; and O'Brien Distributing Co., formerly, but no longer, in the brewing in- dustry in the Boston, Massachusetts, area. 3 Busch is not named in the complaint since it is not alleged that there was discrimination in referrals to Busch. 4 In July 1965, the Charging Party, Teamsters, filed a representation petition with the Board regarding Burke's employees. Pursuant to an elec- tion in September 1965, Teamsters was thereafter certified as collective- bargaining representative at Burke. 5 Article I, section 3. 6 Seniority carries with it certain rights and benefits that are not ac- corded to nonseniority employees . Among such advantages are layoff, re- call, and bumping rights; matters of insurance , uniforms, and other fringe benefits. Seniority, also, as we shall see, is an important factor in the Union's operation of its hiring hall. 7 Article I, section 5(b). 308-926 0-70-59 918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tracts since 1957. The Trial Examiner is satisfied that the evidence establishes that the phrase in article I, section 5(b), ". . . seniority status with any Employer in the in- dustry - " refers to the brewing industry and that it was so understood by both the Union and the employers. It is also found that the phrase includes at least present and former employers in the brewing industry s in the Greater Boston area. This would embrace former employers such as Cody, Hassenreffer, O'Brien, and Metro-Boston, who had contracts with the Union but who are no longer in business, as well as the current employer signatories to the contract. Article I, section 5(d), of the contract, dealing with "bumping" rights uses a narrower term than "industry," which is found in section 5(b), above. Section 5(d) speaks of seniority status "with an employer under this contract on the date of executions thereof-." Literally construed, therefore, bumping rights would not exist in seniority men whose status was obtained with employers who formerly were in the industry and who were parties to expired con- tracts. The Union and all the employers, except Busch, who are parties to the contract in 1965, with which we are concerned, appear to construe section 5(d) in the same manner as section 5(b); i.e., an employee with seniority in the brewing industry has bumping rights and this includes seniority men who obtained their status with former or present employers in the brewing industry. Burke, not a part of the aforementioned multiemployer unit, has a contract with the Union which does not con- tain a hiring clause. However, pursuant to an oral agree- ment between Burke and the Union since 1961, Burke follows substantially the same hiring procedure as do the employers under the multiemployer contract, including the conditions for the acquisition of seniority. Those employers, who have contracts with the Union and with whom we are concerned during the 1965 period, have a basic complement of employees who have seniori- ty status with their respective employers.9 The qualifica- tions that these seniority employees have met in order to obtain their status are described in a series of contracts between the employers and the Union, as described above. From time to time, because of seasonal or other factors in the industry, an employer will lay off some of its seniority employees. Subsequently, if business increases and additional employees are needed, the employer will first contact and call back its laid-off seniority men. The employer will normally contact its seniority men directly by calling them at home.10 However, from time to time, for one reason or another, the employer may call the union hiring hall and ask for the employer's seniority man or men by name. If the seniority man is at the hall, the Union will send him to the employer. When the employer has exhausted his seniority list, he will then call the Union for additional employees. This procedure is required by the contract and the employers and the Union expect and follow this practice. In the event that the Union is unable to furnish employees, the employer may then hire men from the street or elsewhere. Occasionally, an employer may hire an extra employee without having called the Union previously. Such action is an acknowledged deviation from the accepted practice and obligation of the employer, and, when the matter is called to the employer's attention by the Union, the em- ployer will take the necessary steps to correct his devia- tion. It is the Trial Examiner's opinion that in 1965 there ex- isted an exclusive hiring practice and procedure between the Union and the employers herein involved. We do not believe that this conclusion is affected by the fact that some, but not all, employers, when they call the union hall for extra employees, sometimes specify which of the hir- ing hall registrants they want or may specify which men they do not want." An employer by calling for certain registrants over a period of time will, of course, be able to control which men eventually obtain seniority with the particular employer and, conversely, the employer may prevent an undesirable employee from acquiring seniority with that employer. But we do not consider that this fac- tor alters the basically exclusive nature of the hiring prac- tice. Although certain aspects of the union hiring hall opera- tion after June 6, 1965, are in issue in the instant case, we can describe the general operation of the hall and then move to consider the specific situation after June 6, 1965. The Union, Local 8, had two business agents, Gilman and Owens. The union office or hall was opened for busi- ness at 7 a.m., usually by Gilman, who regularly arrived shortly before Owens. Some employees who were seek- ing work would generally be waiting at the door of the hall when Gilman arrived. Others would, arrive at the hall thereafter. The business agent would list, in longhand, in a referral book, the names of employees at the hall.12 Those employees who had been waiting at the door of the hall when it opened would be considered as having ar- rived simultaneously. They would be listed in the referral book in the order of their seniority in the industry.13 8 Whether the term, "[brewing industry]," which, on its face , at least, could be the nationwide industry or the portions of the nationwide indus- try having past or present contracts with the Union, is not entirely clear We incline to the belief that the term is not interpreted by the parties to be nationwide but this aspect need not be resolved for present purposes. 4 Although there is no evidence on this in the record, there can be little doubt that the brewing industry is among the oldest of American indus- tries. It is also a safe assumption that Boston, being one of the oldest American cities, has had such an industry for many years. Union or- ganization of the industry probably goes back many years and the hiring hall has been a characteristic part of the employment picture in the indus- try. There appears little reason to doubt that the instant employers, at the inception of their operations , had recourse to the union hiring hall as a source of experienced employees. In any event, in 1965 and thereafter, as seniority men, the regular employees retire or pass on, or, as additional regular employees are needed, their successors are secured through the union hiring hall, as well as are extra or nonseniority employees. 10 An employer payroll may , therefore, on a given day or days, contain names of men who are not shown on the Union's referral list as having been referred by the Union on that day. 11 Such requests are honored and the Union will send the desired in- dividuals and usually will not send the undesired. However, there is no evidence that an employer will say that he does not want any of the men available simply as a device to hire a man off the street. Certain employers from prior experience with a certain individual, may regard him as unrelia- ble or otherwise a poor employee, and will, therefore, ask that the Union not refer him. Customarily, another registrant is then sent by the Union and is accepted. 12 This book can be described as a copy book, such as might be used in a school. It is not a small pocket notebook and would not fit in a man's pocket. 13 In the instant record various witnesses used the terms of "seniority in the industry" and "union seniority" interchangeably. This is also true of references to "seniority men" and "union men" or "[union] book men." Respondents assert that an employee generally does not secure union membership until he obtains seniority in the industry. UNITED BREWERY WORKERS Employees arriving at the hall later would be listed thereafter in the order of their arrival. If two or more ar- rived together, they too, as between themselves, would be listed according to industry seniority, but lower than the earlier arrivals, aforementioned. Employees, who had been listed on the preceding day and had not been referred to a job on that day, would be carried over to the head of the list on the following day. The Union's rules, as administered, were that if an employee was on the list when a call came to the hall from an employer between 7 and 8 a.m. and the employee, for some reason, was not in the hall when the business agent called out his name for the aforementioned referral, the employee would not lose his place on the list albeit someone else on the list would no doubt have been referred for that particular call. But, if an employee on the list is not in the hall between 8 and 10 a.m. when a call from an employer comes in, and the employee's name is called by the business agent for that referral, the employee loses his place on the list.'' However, an employee, whose name is called for referral, may refuse a particular referral, in which case his name goes to the bottom of the list. 15 Although employees are referred in the order in which they appear in the referral book, this is superseded if the employer calls for a particular employee by name. In that event, if the named individual is available, he will be referred to the job regardless of his position on the refer- ral list. Once an employee is referred to a particular employer, he may work there for more than a day without returning to the union hall or without the employer calling the hail. If the employer wishes the employee to work more than a day, he will post a list of those who are working whom he desires to return the next day or he may so advise the employee orally. If neither of the foregoing steps is taken by the employer, the employee works a day (or whatever the period) and then returns to the union hall on the next day to be placed on the referral list. The hiring procedure that we have been describing does not apply to men who do not have seniority in the in- dustry. Respondents, in effect, admit this in these terms. The General Counsel, in his brief in this particular con- nection, uses the term "non-union employees" instead of "employees who do not have seniority in the industry." If we have only a question of semantics, that is one thing, but otherwise, more is involved. Based on seniority in the industry, a seniority man fares better than a nonseniority man albeit the former is a union man and the latter is a nonunion man. However, if a union man, a union member, who does not have industry seniority receives preferred treatment over a nonunion man who also has no industry seniority we have a situation involving more than semantics. 14 The notation "n.h.," not here, is placed next to his name. 15 Employees may refuse a particular referral, for instance, because a certain employer's place of business may be difficult to reach or to return from because of lack of adequate transporation or because the employee dislikes employment conditions at a particular employer's place of busi- ness. 16 Again, speaking generally, seniority employees who have recourse to the hiring hall at particular times would be employees who have seniority with a particular industry employer under current contract with the Union but who have been laid off temporarily for some reason. Other seniority employees who use the hiring hall would be those whose seniority arose from a defunct employer in the industry and these employees, therefore, have no regular employment with any current employer in the industry 919 Since, at this point, we are still describing the general operations of the hiring hall, we will use the terms seniori- ty employees (i.e., seniority in the industry employees) and nonseniority employees. Later, in dealing with specific evidence, we will use the terms warranted by the particular situation considered. Resuming, therefore, nonseniority employees are treated differently than are seniority employees under the union hall procedure.16 A nonseniority employee who comes to the union hiring hall is not placed on the referral list, nor is he referred in the order in which he came to the hall. All seniority men on the referral list are referred first. If no seniority men are available, the Union will refer the nonseniority men, but, if a seniority man is available on the following day, he can be sent to replace the nonseniority man on that or on a succeeding day.17 B. Events Within Local 8 In sending out announcements of the regular monthly meeting of the Union scheduled for June 6, 1965, Gil- man, in the announcements, stated that the question of dissolving Local 8, Brewery Workers Union, and of transferring all its assets and rights to the Teamsters Union would be taken up. The meeting was held as scheduled on June 6. Without deciding the parliamentary or legal issues involved, since this aspect is not our con- cern herein, it can be said, in substance, that at the meet- ing Gilman undertook to have a vote taken on the dissolu- tion of Local 8 and on affiliating with the Teamsters. That evening, in the meeting room, Gilman was in favor of dis- solution and of affiliating with the Teamsters; Owens and the president of the local, Driscoll, were opposed to Gil- man's position. Martin Gross was also opposed to Gilman."' Before any vote was taken, Owens, Driscoll, Gross, and others walked out of the meeting. It is dif- ficult, if not impossible, to determine, from the record, how many walked out with Owens, et al., and how many remained in the room with Gilman. In any event, Gilman testified that a vote was then taken and those in the room voted 143 to I to dissolve the local and to affiliate with the Teamsters. Thereupon, on this same evening, steps were taken to institute Teamsters Local 8. A new set of officers was elected, consisting of O'Connell, president; Frederick Hoar, vice president; Leonard Bateman, trea- surer; and Gilman, business agent. Hoar and Bateman had held the same offices in Local 8 of the Brewery Workers Union. Beginning on June 7, 1965, Gilman and Owens were contesting possession of the union offices and hall as well as union books and records. Gilman was in possession of since the latter have their own seniority employees and call upon the Union for extra employees. 11 If the Union had referred a nonsemonty man to a job, a notation would be made to that effect in the back of the referral book with the date and name of the employer. On one occasion when the referral list of names was exhausted , Owens offered the job to Bateman, a nonsemonty man, but Bateman declined the job. Owens then placed Bateman's name on the list, with the notation that he had refused a referral to a particular employer on the date noted. 18 The International Union had appointed Gross as trustee of Local 8 on June 4, 1965; Owens was aware of the trusteeship on June 5, this fact of trusteeship was not made known immediately and had not been an- nounced on June 6, 1965. 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the aforementioned property from June 7 to about June 17 with the aid of the police who had ejected Owens.'9 On July 11, 1965, Gilman, as a Teamsters representa- tive, conducted a meeting in the Somerset Hotel. All members of Local 8 were invited to attend this meeting and as a result of the meeting Local 8 Teamsters, became Local 122 Teamsters. As we have seen , on June 6, Local 8, Brewery Workers, had been purportedly dissolved and had become Local 8, Teamsters. In view of the sponsor- ship of the July 11 meeting by Gilman, the then Team- sters business agent, it was apparent that the meeting was for present or former members of Local 8, Brewery Workers, who were Teamsters adherents or sympa- thizers. This is borne out by the fact that Owens, business agent of Local 8, Brewery Workers, did not attend the July 11 meeting although he certainly would have nor- mally been in attendance at a meeting of Local 8, Brewery Workers. Owens, however, admittedly sat in his car near the entrance to the hotel on the night of the July I1 meeting and observed those members of Local 8 who went in. Owens testified that he was present simply to make a numerical tabulation of how many attended the meeting and that he did not note the identity of indi- viduals. We believe that since Owens knew the member- ship of Local 8, having been business agent for many years, he was interested in and observed not only the number of men who attended the July 11 meeting but the identity of the individuals. There can be no doubt of Owens' interest in this matter of Teamsters strength and adherence. Respondents filed an unfair labor practice charge against Busch on July 26, 1965.20 The allegation was that Busch was requesting and permitting persons, who did not represent the Charging Union and who were representing and supporting a rival union (evidently Gilman of the Teamsters), to designate referral applicants for hiring; and that Busch was requiring the Charging Union to refer employees to Busch who were approved by the aforementioned rival union representatives. C. Hiring Hall Operation in 1965 After Respondents regained possession of the union of- fice and hiring hall around June 18, 1965, Owens operated the referral system.21 Instead of using the refer- ral book, Owens used slips of paper on which he wrote the names of applicants for employment (referral appli- cants) and made notations of referral and so forth in con- nection with the system.22 Evidence concerning the referral system for June 7 to June 17 is far from clear. This was the period when the contest between Gilman, a business agent in the Team- sters camp, and Owens, business agent of the Brewery Workers, was acute. The referral records as maintained by Gilman in the period from June 7 to June 14 show that eight men were referred to jobs on June 8.23 As far as the referral book indicates, this was the extent of referrals 19 Owens was not sure of the date but testified that he believed that he did not regain possession of the hall until about June 18. 20 Case 1-CA-5087. 21 There were a few brief periods thereafter when, in Owens' absence, an International representative of Respondent, William Rockovits, operated the referral system; Driscoll, president of Local 8, also func- tioned briefly in Owens' absence. 22 Respondents had resorted to court proceedings to obtain possession of certain records and other property from Gilman . They were successful during this period, although there are approximately two dozen other names listed. Since the first referral slip of paper used by Owens is dated June 18, we have consecu- tive records only from this date. Before proceeding to consider the alleged individual discriminatees, we have an issue of Respondents' knowledge, particularly through Owens, of the identity of the Teamsters adherents. It is our opinion that the General Counsel's reliance upon the June 6 meeting as a general source of Respondents' knowledge of individual Teamsters adherents is misplaced. All the record reveals on this aspect is that Owens, Driscoll, and Gross left the meeting before any vote was taken. Apparently some others also left but their number or identity is not shown. As far as appears, the men who left the meeting then de- parted from the premises and did not witness the vote or remain to see who later emerged from the meeting. There is no evidence that at any time, immediately before or during the meeting, the attention of Owens, Driscoll, or Gross was focused upon any of the alleged discriminatees and the latter, as far as appears, neither spoke nor en- gaged in any distinguishing action at the meeting. Nor is there any evidence that in the period prior to June 6 or immediately thereafter the discriminatees had revealed in any way their Teamsters sympathies. The General Counsel also relies upon an unsigned and undated written statement that the General Counsel wrote, in longhand, around the middle of August 1965, during an interview with Owens. Among other things, the statement reads: It is no secret who the Teamster adherents are. They don't hide it. I have known (since June 6) [This in- sertion is as it appears in the statement.] that all of them, with the exception of Todaro, who appears to be on the fence, are for the Teamsters. They remained at the meeting on June 6 to vote for affilia- tion with the Teamsters. At the hearing, Owens admitted that he had read over the statement in August, and had pointed out certain inac- curacies and that the General Counsel had made cor- rections. Owens admittedly did not focus on the quoted portion, above, at the time of his interview by the General Counsel but had said that he did not wish to sign because of possible inaccuracies and because of his desire to study the statement more carefully and possibly to consult his attorney. Owens testified that he did not know the identity of the Teamsters people and did not remember having made the quoted statement. By the time of the above interview in August, Owens probably did know the identity of the Teamsters people but by that time there had been the July 11 Teamsters meeting which Owens had observed from the outside as to who attended. There was also the charge of July 26 filed against Busch, the basis of which was Respondents' assertion of favoritism toward Teamsters adherents. But around the latter part of June 1965 . Owens testified that the referral book was one of the items so secured and he offers this explanation for his use of paper slips instead of the referral book. Gilman denies that he had ever taken the referral book and states that it remained in the union office at all times. In any event Owens continued to use slips of paper in the months following the asserted repossession of the referral book. 23 T. Walsh to Considine; Riorden, O'Neil, Farrell, and Vincent to Busch , Walker, Curley, and Olsen to Narragansett Boston. UNITED BREWERY WORKERS 921 the Trial Examiner is not satisfied that the General Coun- sel has proven that from June 6 to July 11 Owens knew the identity of the Teamsters. For instance, the statement in the unsigned affidavit that the Teamsters adherents made no effort to hide their sympathies would carry con- viction if there was a scintilla of other evidence in the record along these lines. There is nothing in the record that any employee ever had a conversation with or in the presence of Owens regarding the Teamsters or had said or had done anything to reveal personal sympathy or even interest in the Teamsters. As to the June 6 meeting, this has been discussed earlier in our Decision and we fail to see this as a source of information to Owens in view of the limited evidence on the matter. In short, even if Owens did make the statement quoted from the purported affidavit, which he denied at the hearing, we have the greatest difficulty in understanding how he would have had such knowledge prior to July 11. And except for this disputed statement and the June 6 meeting, the record does not supply the answer. D. Alleged Discriminatees Thomas Walsh is an alleged discriminatee and the issue of discriminatory operation of the referral system regard- ing Walsh and others was litigated concerning the period commencing in the middle of June 1965, and thereafter. While we have rejected the General Counsel's position that Respondents' knew the identity of all Teamsters ad- herents from June 6 on, we shall consider the evidence regarding specific individuals, such as Walsh, as to Owens' knowledge of their Teamsters sympathies. Walsh had seniority in the industry. He was a Local 8 member who attended the June 6 meeting and voted. He signed a Teamsters card after the meeting. On July 7, 1965, Walsh was working at Burke, having secured the job through Gilman. While Walsh was on the job, Owens visited the site and asked Walsh how he happened to be working there. Walsh told him. Owens told Walsh that he was a Teamsters. Walsh denied the fact.24 On July 11 Walsh attended the Teamsters meeting at the Somerset Hotel. As Walsh entered the front door of the hotel, Owens was sitting near the entrance observing those who entered.25 We are satisfied that, on July 11 and on July 7, 1965, Owens knew or suspected that Walsh was a Team- sters adherent or sympathizer. Walsh testified that, from the middle of June through October, he came to the union hall every day except on those occasions when he had been referred to a job. Ac- cording to Walsh, he arrived at the hall about 7 a.m. and left about 11 or later. Walsh's name does not appear on any of the referral lists kept by Owens in the month of June. Owens testified that each day he listed all the men who came to the hall and that if a name does not appear the man was not present.26 Rockovits, an International representative of Respond- ent, came to Boston on June 9, 1965, to work with Owens. He came to the union hall every morning at 6:45 or 7 a.m. from June 9 through July. Thereafter he came to the hall about a half hour later every morning. Rockovits testified that at the hall he circulated in the office and in the waiting room and that he sat around, talked to the men, and read the newspapers and so forth. Rockovits was a witness called by Respondents. According to Rockovits, Walsh was in the hall "quite frequently ... most every day" in the latter part of June and in July. Other men who were in the hall testified to Walsh's presence in accordance with his own testimony. The Trial Examiner is satisfied and finds that Walsh was present in the hall at various times from June 18, 1965, and on, and that Owens did not place his name on the referral lists on each of these occasions but did list his name on some oc- casions, beginning in July. In the past, Walsh had told both Owens and Gilman that he did not like to work at Considine. He considered the working conditions at Considine undesirable. Although Owens had not listed Walsh on the referral list, he did refer him to Considine on June 24, 1965, and Walsh took the assignment for that 1 day's work. Because of lack of referral during the period, Walsh called Gilman, the then Teamsters business agent, on June 29, and Gil- man sent him to Burke, where Walsh worked on June 29. On July 1, Walsh contacted Burke directly and worked on July 1. Owens listed Walsh on the referral list on July 2 with the notation that Walsh had declined a referral to Considine on that date. On July 7, 8, and 9, through Gil- man, Walsh secured work at Burke. On July 7, Owens came to the Burke site and asked Walsh what he was doing there. As previously described, Walsh told him, and Owens accused him of being a Teamsters. General Counsel's Exhibit 7 (f) is the Respondents' referral record of July 9, 12, 13, and 14, 1965.27 It shows the names of men who came to the hall on those dates for referral. General Counsel's Exhibit 7(g) is a new list for July 15. Pursuant to the union rules, Owens was obliged to first list on 7(g) the names of men on the 7(f) list who had not been referred to jobs. Owens followed this procedure and listed the first nine names from 7(f) at the top of the new list, 7(g).28 The next six names on 7(f) that should have been listed on 7(g), after the first-nine, were not listed at that point; instead, four names that had ap- peared on 7(f) but who had received referrals during the 7(f) period and should have gone to the bottom of 7(g), were listed out of order on 7(g). The six men aforemen- tioned who were improperly listed at the bottom of 7(g) on July 15 were Moore, Vincent, Kirk, K. Hoar, J. Far- rell, and T. Walsh, all alleged discriminatees, with Walsh being the individual that we are discussing at this point of the Decision.29 A referral list of employees in the hiring hall on July 19 and 20 was composed by Owens.30 The list is headed, 24 Owens, in accusing Walsh, used the number of a Teamsters local other than the Teamsters local that Walsh had joined The local of the Teamsters of which Gilman was business agent and which Walsh had joined was initially Local 8, Teamsters, and shortly thereafter, it became Local 122, Teamsters. Owens had accused Walsh of being a Local 25, Teamsters 25 This surveillance by Owens has been discussed earlier in this Deci- sion. 26 The union hiring hall consists of an office with desk and chairs and an immediately adjacent waiting room. Employees sit around the office and in the waiting room, where they talk, read newspapers, and play cards while awaiting referral. 29 July 10 and 11 were Saturday and Sunday, respectively 28 O'Malley to Leonard. 29 Five of the six, including Walsh, received referrals to Busch on July 16 because Busch asked for them by name. 36 As previously mentioned, all these referral lists in the period from June 18, 1965, consist of separate pieces of paper on which Owens wrote the names, except for a few days in Owens' absence, when Driscoll or Rockovits used similar slips of paper as referral lists. 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD July 19, 1965, and is General Counsel's Exhibit 7(h). Some of the employees on 7(h) did not obtain referrals on either July 19 or 20. On July 21, Owens wrote up a new list, General Counsel's Exhibit 7(i), and in accordance with the rules, Owens carried over to 7(i) names of those men who had appeared on the 7(h) list but who had not been referred. Thus, the names of Touhy, Walker, Flaherty, Curtin, Drummond, and O'Malley, who were on 7(h), but who had not been referred on July 19 or 20, were carried over in that order to the top of 7(i) on July 21. After O'Malley, the names of Farrell, Walsh, and Moore should have appeared since they had been listed on 7(h) but had not been referred on July 19 or 20. In- stead, right after the name of O'Malley on 7(i), Owens listed Leonard, Coleman, Bresnahan, O'Neill, and Chal- mers, ahead of Walsh and Moore, and without even list- ing Farrell. As 7(h) plainly shows, in Owens' writing, Coleman, Leonard, O'Neill, Bresnahan, and Chalmers had received referrals on July 20 and should therefore have been behind Walsh, Moore, and Farrell on 7(i) on July 21. Respondents seek to explain the foregoing as mistakes or human errors and cite other instances where em- ployees, not alleged to be discriminatees, were listed im- properly on the referral list and carried over from one list to another in improper order. Respondents also suggest generally that some apparent errors may have been due to the fact that an employer called for an individual by name and that Owens inserted such name at random on the list. This latter hypothesis does not explain the specific mislistings described above in some detail. Nor are we prepared to accept the explanation of innocent human error. Owens testified that as business agent his duties were to negotiate contracts, adjust grievances, and oversee contract administration. But certainly one of his principal duties was the administration of the hiring hall referral system, a matter of vital importance to the em- ployees using the hall, all of whom, with an occasional rare exception, were members of the Union. The hiring hall operated from 7 a.m. to 10 or 12 noon and the usual number of employees present was approximately 10-25. Owens had been a business agent for 16 years. He knew exactly how the referral system operated and he im- pressed the Trial Examiner as a careful individual, not prone to careless actions, particularly in such a matter so important to his organization, its members, and himself. The system required no involved computations but basi- cally and simply a listing, in proper order, of names of those present in the hall; notations of referrals; and a car- 11 The actual financial loss to Walsh, whether minimal or otherwise, by reason of the discriminatory conduct is not determinative on the question of whether or not there was a violation a2 International Union of Electrical Radio and Machine Workers, Frigidaire Local 801 v N.L.R B , and companion case, N L R B v. General Motors Corporation Frigidaire Division, 307 F 2d 679, 683 (C.A.D.C.) 33 Miranda Fuel Company, Inc., 140 NLRB 181, 188; Independent Metal Workers Union, Local I (Hughes Tool, Co ), 147 NLRB 1573 34 Respondents' reference in their brief to other instances in the record where other employees were improperly listed on the referral lists con- firms our conclusion that, in administering a basically simple referral system, inadvertence does not explain the errors, albeit the Teamsters aspect was not present in all instances It is also to be home in mind that in the instant case the improper operation of the referral system does not purport to be a carrying out of some internal union rule but, on the contra- ry, the aforesaid improper listings were contrary to the Union's own rules. ryover of relatively few names from one day to another. There were not hundreds of people in the hall and practi- cally all of those who used the hall were known per- sonally by Owens over a period of years. In the light of these circumstances, we cannot agree that the improper and discriminatory listings for referral of Walsh and others were due to inadvertence. We find that the im- proper listing of Walsh, in July 1965, as aforedescribed, was discriminatorily motivated because of his known or suspected Teamsters adherence or sympathy and that such conduct was in violation of Section 8(b)(1)(A) and (2) of the Act.31 Since the Trial Examiner, as previously explained, has doubted the proof that Respondents were, in June 1965, aware of the Teamsters adherence of Walsh and others, the failure of Respondents to list Walsh on the referral lists from June 18 to the end of June requires further com- ment. Basic to our consideration is the fact that "among the most important of labor standards imposed by the Act as amended is that of fair dealing, which is demanded of unions in their dealings with employees. The requirement of fair dealing between a union and its members is in a sense fiduciary in nature and arises out of two factors. One is the degree of dependence of the individual em- ployee on the union organization; the other, a corollary of the first, is the comprehensive power vested in the union with respect to the individual."32 This pertinent language was used in a case of customary industrial employment, with employees on a regular payroll and with a union hav- ing a union-security clause in its contract. The language and the concept is the more important in the instant case where not only is there a union-shop contractual clause but an exclusive hiring hall referral system. The degree of dependence upon the Union by those employees resort- ing to the hiring hall is manifest. The employee, further- more, has a "right to fair and impartial treatment from his statutory representative."33 We cannot view the deliberate failure of Respondents to list Walsh on the referral lists, on various days when Walsh was present, from June 18, 1965, to the end of the month as anything but a failure of the statutory representative to accord an employee fair and impartial treatment. Whether the mo- tive in this instance was whim, suspicion, favoritism to others, caprice, personal dislike, or other, is not deter- minative. We find a violation of Section 8(b)(l)(A) and (2), adopting the rationale spelled out in more detail in Miranda Fuel Company, Inc., supra, and discussed more fully hereinafter.34 Respondent has sought to focus attention on the fact that the alleged discriminatees did not check the referral lists and bring about their cor- rection. The evidence as to the availability of the referral slips maintained by Owens is disputed in the record. Some witnesses assert that the lists were available for inspection on Owens' desk; other witnesses state that Owens kept the slips in his pocket or under his hand most of the time In any event, various employees who used the hall did not inspect the slips. This includes not only the alleged discriminatees, but there is no evidence that all other improperly listed employees, referred to by Respondents, were aware that they were improperly listed or protested such fact. One employee testified that he did not involve himself in questioning such mat- ters because it was his observation that such activists usually did not make out too well in the long run Further, the men involved were manual workers and by background and training were apparently not as acute or alert as would be others in policing referral lists, which, after all, were being maintained by the business agent of their own union. UNITED BREWERY WORKERS 923 Robert Moore is a member of Local 8 of the Brewery Workers and has seniority in the industry. He attended the June 6 meeting, voted , and signed a Teamsters card on June 7. He also attended the July 11 Teamsters meet- ing, going in the front door which was admittedly under surveillance by Owens who was sitting in his parked car. Although Moore states that he did not see Owens on July 11, we conclude that the latter observed Moore. Moore testified that from the middle of June to July 16, 1965 , he came to the hall everyday about 6 :30 a.m. and remained until 10 a.m. or 12 noon. Other employees testifed that they saw Moore in the hall during this general period. Rockovits testified that during the late June and early July period, he would see Moore at the hall for a couple of days, then a gap, and "then [Moore would] show up again for a period of several weeks ...... We find that Moore was at the hall during the period claimed, perhaps not everyday but most of the time, including the period from the middle of June . Moore is not listed on the referral list by Owens until July 7, 1965.35 Moore testifed that on some date in early July he was on the referral list but when his name was called by Owens for referral to a job , Moore did not hear his name called. Moore was in the waiting room of the hall when his name was called by Owens in the office . Two other men who were in the hall had advised Moore that his name had been called. Moore went to Owens promptly and said that he understood that his name had been called. Owens said that it was too late and that he had sent out another man.36 Later that day, Owens offered Moore a referral to Considine but Moore refused because he did not have a car and Considine's location involved a transportation problem for him. The Trial Examiner believes that the above occurence probably took place on July 9 . That is the only date in the forepart of July where Moore's name appears on the referral list with the notation, "N.H." (not here). We credit the testimony of Moore and Vincent regarding the event. Moore was subjected to the same discriminatory place- ment on the referral lists as was Walsh on July 15 and July 21 , 1965. The details of this aspect have been set forth above in connection with the Walsh situation. As in the case of Walsh and on the same legal basis, the Trial Examiner finds that violations of Section 8(b)(1)(A) and (2) have been committed against Moore in the latter part of June and during July 1965. Charles Vincent is a member of Local 8 of the Brewery Workers. He attended the June 6 meeting and voted. He also attended the July 11 meeting . Vincent testified that, from the middle of June 1965 , he came to the hiring hall regularly every day, arriving about 6:30 a.m . and remain- ing until 10 or 11 a.m. Other men testify that they saw Vincent in the hall during this period. Rockovits testified that from the middle of June until the latter part of July he saw Vincent in the hiring hall quite frequently. At another point, this witness stated that, in the latter part of June and early July, Vincent was present "maybe every day and then it became a little more infrequent." Vincent's name does not appear on a referral list until July 13. On that date he was referred to Busch since Busch had requested him by name.37 As was described in the case of Walsh, above, Owens listed Vincent, Walsh, and other alleged discriminatees in a lower position on the July 15 referral list than they should have occupied. Vincent received a referral to Busch on July 16 because the Company asked for him.38 For the reasons stated hereinabove with respect to Walsh, we find that Respondents have violated Section 8(b)(1)(A) and (2) as to Vincent. Ralph Kirk is a member of Local 8 of the Brewery Workers and has seniority in the industry. He attended the June 6 meeting and voted. Kirk attended the July 11 Teamsters meeting at the hotel but entered through a back entrance and was not seen by Owens. He testified that he was at the union hall everyday from the middle of June until the end ofJuly 1965. Kirk stated that he was al- ways at the door of the hall when it opened at 7 a.m. and that he remained until 10 a.m., sometimes until 12 noon. Rockovits testified that Kirk was in the hall "almost every morning ... latter part of June and early July ... after that I saw him now and then . . . ." It is found that Kirk was at the hall with substantial regularity from ap- proximately the middle of June and in July 1965. Kirk's name does not appear on a referral list during the above period until July 7 , on which date he was referred to Considine.39 As described in the matter of Walsh, above, Kirk was one of the men who was placed in a lower position on the July 15 referral list than should have been the case if Owens had followed the regular procedure. Also, on Friday, July 30, 1965, Kirk testified that he had been at the hiring hall and had not worked.40 On Monday, August 2, two employees , Roy and Noel, came to the hall. Kirk knew them but had not seen them for a long time. He asked the two men where they had been and was told that they had been working at Carling for a month or more. Both Roy and Noel received referrals from the union hall on that Monday, August 2. As they were leaving the hall, Kirk asked Roy where he was going and was told that he was going to Schlitz. Carling's records show that Noel had worked for Carling from June 21 to August 2, the latter date being the date of his layoff; i.e., the last working day was Friday, July 30. The same employer records show that Roy worked for Carling from June 22 to August 2, which, as in the case of Noel, in- 35 According to the list, G. C Exh. 7(e), Moore received no referral on that date and refused no referral. Lack of actual referral on a particular day is unexceptional 36 Vincent, who with others, was sitting in the office area of the hiring hall, in early July, testified that, on one day in that period, Owens received a telephone call, evidently a request from an employer. Owens called out Moore's name in a low voice . Vincent was aware that Moore was in the hiring hall but doubted that Moore, who was in the waiting room, had heard Owens call his name. Vincent went into the waiting room to inform Moore that his name had been called and Moore came in to speak to Owens. Owens testified at the hearing that this entire incident never oc- curred. 39 Because of his appearance on the list for the first time on July 13, Vincent was behind some other men who were listed on the previous day and who had not been referred Absent a specific request for Vincent by Busch on July 13, he would not have been so referred. Respondents in their brief note that from July 13 Busch specified by name practically all the extra men it required , including Vincent , Hoar, Moore, and Kirk. 38 Vincent testified that in the middle of July he was in the union hiring hall office when Owens received a telephone call. Owens protested strongly to the caller, telling him that other men in the hail had greater seniority than the persons that the caller was evidently requesting by name After hanging up the telephone , Owens then referred Vincent, Walsh, and another man to Busch for work on that day. 39 Kirk also had worked for Considine for 1 day on June 24 but had not secured this work through referral from the hall 40 Kirk testified as to a Friday and a Monday, not knowing the dates. 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dicated that the last working day for the two men at Carling was July 30. Respondents' referral lists reveal that Roy and Noel had been referred to Carling on June 21 and 22, respectively. They do not appear again on the referral list until their names are listed on the August 2 list, on which date Roy is shown as having been referred to Schlitz and Noel to Narragansett Boston.41 It is thus apparent that Kirk's testimony is corroborated in impor- tant respects by Carling's records, as well as by the refer- ral lists of Respondents. However, Respondents' referral list does not list Kirk's name as present in the hall on Friday, July 30, but lists him as "not here" on July 29 and does not list him again until August 3. The Examiner considered Kirk to be a credible witness and finds that he was in the hall on Friday, July 30, and on Monday, Au- gust 2, and that he had the conversations he described, with the contents thereof being borne out by other records that are in evidence.42 Since Kirk had been in the hall on Friday, July 30, and had not been referred, he should have been listed at the top of the list on August 2 and should have been referred before either Noel or Roy. We find that Respondents knew or suspected Kirk to be a Teamsters adherent for some time prior to July 26, 1965, when Respondents filed a charge against Busch as aforedescribed. Kirk commenced receiving referrals to Busch around July 20, together with other Teamsters ad- herents, and these referrals were due to the fact that Busch asked for these men by name, a fact resented by Owens and undoubtedly a factor in the filing of the charge against Busch accusing the Company of aiding the Team- sters. In the period in June and prior to about July 20, 1965, there is reason to doubt that Respondents knew or suspected Kirk of Teamsters adherence. During that period, however, Kirk had a right to fair and impartial treatment from his statutory representative, Respond- ents, in the operation of the referral system. For some reason other than inadvertence and for whatever reason, personal or otherwise, Respondents , the statutory representative, did not accord Kirk the fair and impartial treatment to which he was entitled and Respondents treated him in a discriminatory manner under the referral system.43 This was a violation of Section 8(b)(1)(A) and (2) of the Act.44 The discrimination against Kirk in the period after July 20, 1965, was because of his known or suspected Teamsters adherence and was also in violation of Section 8(b)(1)(A) and (2) of the Act. Kenneth Hoar is a member of Local 8 of the Brewery Workers and had been such since 1962. He secured seniority in the brewing industry in September 1965 as the result of employment by Busch. Prior to that time, Hoar had established seniority in the soft drink industry and he testified that he considered himself to have seniority by virtue of seniority in the soft drink industry since, in his words, "It's all the same union [Local 8 which embraces both the soft drink and brewery indus- 41 Although the list is captioned August 2, the referrals of several men under that list are shown as August 1. This is an obvious and admitted error since no referrals were made on Sunday , August 1 , a nonworking day 42 Kirk had been candid enough to admit that he had entered the July 11 Teamsters meeting through a rear entrance without being seen by Owens. This is a relatively small matter but the witness could have easily testified otherwise. 43 It is of course possible to infer from the discrimination, in the absence of some other discernible motive , that the motive was in all likelihood the tries]." Hoar attended the June 6 meeting and voted; he signed a Teamsters card on June 10. He is the nephew of Frederick Hoar, vice president of Local 8 of the Brewery Workers, who was elected vice president of Local 8 of the Teamsters at the June 6 meeting. Kenneth Hoar at- tended the July 11 Teamsters meeting at the hotel and Owens was looking at the entrance as Hoar entered. We have little doubt that Owens, early in June, was aware that, although President Driscoll, together with Owens and Gross, and others, walked out of the meeting of June 6, Vice President Hoar and Treasurer Bateman had not walked out but had remained at the meeting to vote on Gilman's proposal regarding Teamsters affilia- tion. We also believe that Owens became aware of the identity of the new Teamsters officers and that Kenneth Hoar, in view of his relationship with Vice President Hoar, was reasonably regarded by Owens, in June and thereafter, as at least a prime suspect on the matter of Teamsters adherence. Hoar testified that, from about the middle of June 1965, he came to the hiring hall every day, arriving around 7 or 7:15 a.m. and leaving about 10 a.m. or 12 noon. Rockovits testified that Hoar's attendance during this period was about the same as Vincent's, which meant that Hoar was there "quite frequently . . . quite steady .. . maybe every day." We find that from approximately the middle of June Hoar was at the hall with substantial regu- larity, except on days that he secured work. The June 4 referral sheet, maintained by Gilman in the period immediately preceding Owens' repossession of the union hall, shows that Hoar, as well as others, was listed thereon and that Hoar was referred to Considine on June 8. Hoar also worked at Considine on June 24 but his name does not appear on any of Owens' referral lists in that month. It is not unlikely that Hoar secured that day's employment through Gilman. In any event, Hoar, after June 4, first appears on an Owens' referral list on July 14. His name is listed without distinction below some names and ahead of other names, presumably in accordance with time of arrival in the hall. He is again listed like others on July 15, with a referral to Busch (Budweiser) on July 16.45 Again, he is listed on July 19, with a referral to Busch shown on July 20. Other listings of Hoar to Sep- tember 3 are on July 26; August 16; August 23; Sep- tember 3. On these various lists some names precede Hoar's and others are below his name.46 Again, as described in the case of Walsh, Owens listed Hoar, who had been on the July 14 referral list and had not been referred, at a lower and improper position on the July 15 list. For the reasons previously set forth we find that Respondent discriminated against Hoar in violation of Section 8(b)(1)(A) and (2) of the Act. Since Hoar, during the period of discrimination, did not have seniority in the brewing industry, his status, with re- gard to his right to be listed on the referral lists, was Teamsters activity of Kirk on or about June 6-8 and July 11, even absent direct proof that Respondents possessed such knowledge at the time However, the Trial Examiner does not rest his conclusion on this type of approach. 44 Miranda Fuel Company, Inc, supra, Hughes Tool Co , supra 4s This and subsequent referrals to Busch were pursuant to the Com- pany's requesting Hoar and others by name. 46 In July, Hoar's sole employment was at Busch on July 16, 20, 21, 22, and 23 UNITED BREWERY WORKERS 925 equivalent to that.of a nonunion man without seniority in the brewing industry. As the record clearly shows, Respondents asserted at the hearing that a man without seniority in the brewing industry was not placed on the referral list.47 It was further stated that a nonunion man (and- we have such a case to be considered hereinafter) would not be placed on the referral list, not tecause he was nonunion but because he had no seniority in the brewing industry. Purportedly, a man could have seniority in the brewing industry and not be a union member, for instance, an expelled union member who had previously secured seniority. By the same token, presumably, a man could be a member of the Union and not have seniority in the brewing industry; e.g., Hoar .41, Under Respondent's professed rules, Hoar was not en- titled to be, and should not have been, listed on any refer- ral list in June through August 1965, because he did not have seniority in the brewing industry. However, Hoar, as we have seen, was listed on the referral lists and the only apparent reason was that he was a member of Local 8, with seniority in the soft drink industry. The referral- listing-rights treatment accorded to Hoar was no different than that accorded to men with seniority in the brewing industry, whether they were discriminatees or nondis- criminatees in the instant case. However, while Hoar en- joyed the referral listing status of a man with seniority rights in the brewing industry, he was discriminated against in the same basic manner as was the case with Walsh and the other discriminatees. At the hearing, Respondents' witnesses, principally Owens, while undertaking to explain why the dis- criminatees were listed only on certain referral dates and why their names in certain instances were listed in im- proper order, made no distinction between Hoar and the other discriminatees although the latter had seniority in the brewing industry and Hoar did not. Not once did Respondents' witnesses even intimate that Hoar's lack of brewing industry seniority had anything to do with the fact that he was not always listed at times when he was at the hall or that he was listed improperly . The reason is ob- vious. Hoar's lack of brewing industry seniority had nothing to do with the discrimination against him since Respondents had accorded Hoar , as a union member or as a union member with seniority in the soft drink indus- try, the status and rights of a seniority man in the brewing industry, although denying such status and rights to a nonunion man. Respondents in their brief (p. 26), therefore, are in a poor position to state that Hoar, since he had no seniority in the brewing industry, was not entitled to referral as long as men with seniority in that industry were available or to assert that Hoar's rights were no different from those of nonunion men without seniority in the brewing industry. As explained, above, these factors had nothing to do with the discrimination against Hoar and Respond- ents themselves had not equated him with a nonunion, nonseniority man but had accorded him the status of a seniority man in the brewing industry, and then had prac- ticed the same discrimination against Hoar as they had against other seniority men and for the same reason .411 Francis Newman formerly owned a bar in Cambridge. He became acquainted with Stevens , president of Nar- ragansett Western. Thereafter, Newman lost his business and, in any event , he was unemployed. Newman asked Stevens for work and he worked for Stevens on July 2, 6, 7, 8, 14, and 21 .50 Stevens testified that sometime after Newman had asked him for work, Stevens called New- man at home on July 2 and told him to come to work. Stevens stated that he also called Newman at his home on the succeeding dates and that is how Newman happened to be employed on such dates . This would indicate that the mechanics of the situation as to why Newman did not work after July 21 was because Stevens did not call him at his home to tell him to come to work on the next day. Although employers in the industry frequently post the names of men working for them whom they desire to re- port on the next day, this is not the only procedure. Newman testified that after his first day of employ- ment, July 2, Friday, his name was posted for the follow- ing week, and he worked July 6, 7, and 8. Considering the testimony of Stevens and Newman together, we believe that Stevens called Newman at his home to report for work on July 2. On the evening of July 2 ,51 Stevens, or someone acting under his direction , posted a list of the men working on July 2 who were to work on the follow- ing week. Newman's name was posted for work on July 6, 7, and 8. Sometime, after July 8 and before July 14, Stevens called Newman at his home to tell him to report for work on July 14. Again, after July 14 and before July 21, Stevens called Newman at home and told him to re- port for work on July 21, which Newman did. On the evening of July 21 Newman's name was not posted for work the next day and thereafter Newman received no calls at his home from Stevens.52 47 Such a man might obtain a referral after the names on the list were ex- hausted 4' Respondents assert that there was no such thing, with respect to jobs, as union seniority but only industry seniority , albeit union membership and the attainment of industry seniority usually occurred concurrently. 49 Although Respondents do not raise the same contention regarding Vincent, supra, as they do about Hoar, on this matter of lack of seniority in the brewing industry during the period of discrimination, the fact is that Vincent was in the same position as was Hoar and everything which we have said on this aspect with respect to Hoar applies equally to Vincent Vincent was listed on the Union's referral list and referred from time to time for about 5 years. He testified that during this period, he had a permit card from the Union and paid union dues. Owens testified that the Union has had no permit cards since 1948. In any event, during the years when Vincent was listed in the referral book and was referred to jobs from the hall, he had a union status, either as a full-fledged member or as a permit card holder. He did not have seniority in the brewing industry during that period but he was not treated as a nonunion , nonseniority man would be treated. Sometime around 1963 , after working about 5 years in the brew- ing industry as aforedescribed , Vincent went to work with a soft dunk company. He there secured seniority in the soft drink industry and, ac- cording to Vincent, he was then sworn in as a full-fledged member of Local 8. With his union membership and soft drink seniority, Vincent, like Hoar, was not treated, during the 1965 period which concerns us, as a nonunion man without seniority in the industry, but was listed on the referral lists and referred except for the discrimination practiced against him for otherreasons in 1965, as set forth above. 11 Stevens was a member of the employer negotiating team that negotiated the current and past contracts with the Union. He testified that when an employer had used up the men who had seniority with the par- ticular employer, the employer's obligation was to call the union hall for extra employees that he needed. Regarding Newman , Stevens testified that he was not sure whether he, Stevens , had first called the hall and had found none available or whether he had hired Newman without first calling the hall. If the latter, Stevens, as we shall see, tacitly admitted that he was acting improperly under the hiring arrangement and practice. 51 Newman's hours were 8 30 am. to 8:30 p in. 52 Only one extra employee worked at Stevens' place of business on July 22. This same extra employee also worked July 27-29 Another extra employee, Curtin, was referred from the Union on July 26 and worked for Stevens on that date. 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On direct examination by the General Counsel, Stevens affirmed that the last date of Newman's employ- ment was July 21. He was then asked: Q. Did something happen at about that time which caused you to stop calling Mr. Newman any longer? A. Yes, I guess my [union] shop steward must have called the union hall and Mr. Owens called me and said he had men loafing that were not working at the hall and he preferred that I use the men at the hall. Q. Did he tell you what kind of men he had loaf- ing? A. Union men, seniority men. I don 't remember the exact word. Q. As a result of what discussion with Mr. Owens, what did you do with respect to Mr. New- man? A. Well, I didn't use him .... didn't use him the next day. [ Emphasis supplied.] 53 Newman heard nothing from Stevens and had no con- tact with him until July 27, when he encountered Stevens in a restaurant. Newman asked Stevens if there was work available for him and was told no. When Newman asked why this was so, Stevens replied that Owens had told Stevens that Stevens could not use Newman any more because Owens had union men who were loafing.54 Stevens suggested that Newman go the union hall. Newman went to the union hall on August 3, 4, and 5 and remained there each day from 7 to 9:45 a.m. On these days , Owens was out of town on business and President Driscoll, who had been president of Local 8 for 6 years, was acting in his place and had charge of the referral list and its operation . Newman told Driscoll that he had been working at Narragansett Western off and on and that he would like to be placed on the referral list. Driscoll told him that the union men would all have to be referred be- fore Newman. 55 Newman had several brief conversations with Driscoll during the period August 3-5 at the hail. Driscoll admittedly and deliberately did not place New- man's name on the referral list on any of the days when Newman was at the hall and Newman received no refer- rals. As Driscoll testified, it was the professed union pol- icy that persons, who did not have seniority status in the industry, were not placed on the list. If all the seniority men on the list were used, a nonsenionty man would then be referred, and, at this point, the name was usually recorded in the back of the referral book or list.56 Before analyzing the aforementioned situation , we con- sider Owens' testimony regarding the Newman incident. Owens states that "One day in the office somebody came up and said some strange guy is working over there [at Narragansett Western]." Upon receipt of this informa- tion Owens testified that he went to Narragansett Western and spoke to Stevens, telling him that he un- derstood that Stevens had a man working whom he had picked up. According to Owens, Stevens said that he did not have such a man "now" but he did have a man named Newman whom he had hired when no one was available. Owens suggested that if Stevens wanted help, there were experienced seniority men available at the union hall. This was the extent of the conversation. Respondent's counsel then asked Owens if he remem- bered the date of his visit to Stevens. A. 27th of July. Q. 27th of July? A. 22nd of July. The above testimony of Owens occurred after both Stevens and Newman had testified as previously described . It is not too clear how Owens remembered that it was July 22, a Thursday, and not July 21, Wed- nesday, that he had the report aforedescribed and went to Stevens. Owens' testimony was that the report he received at the union hall was that a "strange guy is working" at Narragansett Western and that Owens then went over to see Stevens. He did not testify that he went the next day or the day after but the implication was that the matter was important enough that Owens went right over to the plant . Stevens' testimony, aforedescribed, in- dicates that he stopped calling Newman for work because of the Owens ' conversation and it does not indicate that Stevens had already stopped calling Newman because no work was available or otherwise. Further, in the July 27 conversation between Stevens and Newman, Stevens said that the reason there was no work for Newman was because of what Owens had told him about men being available at the union hall. Stevens did not say to New- man that the reason was that work had run out at that time or that there was no prospect of work on the same day or in some week later in the month. What was clear was that Newman had better forget about work with Stevens in view of the Owens' visit. Although the evidence indicates that the date of Owens' conversation with Stevens was July 21, some- time during the day, we are prepared to consider the situation as having occurred on July 22. Respondents argue that since Newman's name was not posted on July 21 for work on the following day and since Owens did not speak to Stevens until July 22, there was no causal conversation "between Stevens' failure to post Newman for work on the 22nd and the conversation between Owens and Stevens ...." Assuming this chronology and assuming that Newman would not have been working on July 22 because of lack of work at the Company, Owens' talk with Stevens effectively foreclosed any further employment opportunity for New- man with the Company since Owens caused or attempted to cause Stevens thereafter to call the union hall and to exhaust the union referral list before any employment might be considered for or offered to Newman. This step by Owens could have been proper if he was acting in ac- cordance with the contract and the professed hiring hall procedure. In other words, if Owens was, in fact, ad- ministering the contract and the professed hiring hall procedure, he would have been requiring Stevens to call the hall so that the nondiscriminatory standard or preference, in referral, for employees possessing seniority in the brewing industry could be carried out. However, as ss This would indicate that Owens had spoken to Stevens on July 21 54 Stevens testified that he told Newman, when asked by Newman why he could not or did not use Newman , that there were union men or seniori- ty men available 55 Driscoll states that he used the term seniority men and not union men SB Driscoll testified that, in the last-mentioned situation , the policy was, "sometimes [we] recorded them and sometimes we didn't" UNITED BREWERY WORKERS we have seen in our consideration of Hoar and Vincent, supra, men without seniority in the brewing industry were a part of the class of men who were, as far as Owens was concerned, the seniority men listed on the referral lists and who were referred exactly in the same manner and in the same order (but for the aberrations on the Teamsters aspect) as other union men who had seniority in the brew- ing industry. There is no question in our mind that if, on July 23, Stevens had said to Owens that the Company needed an employee for work on July 23 and that he was thinking of calling Newman, and Owens produced his referral list and showed that the two top men on the list for July 23 were Hoar and Vincent. Owens would have taken the position that these seniority men (again prescinding from any Teamsters aspect) were available and should be hired in preference to Newman.57 When Owens spoke to Stevens on July 21 or 22 in the instant case, he was not talking about any particular men at the union hall on the referral lists. He was talking about any man listed on the referral list. These were the union men or the seniority men that he referred to and on any particular day Hoar or Vincent were, or might have been, on the list when Stevens called the hall instead of hiring Newman. Owens, therefore, caused or attempted to cause Stevens to discriminate against Newman because Owens required preference for the employees who were listed on the Union's referral lists and men were listed on such lists who had no seniority in the brewing industry and whose sole claim to preference over Newman was that they were union members and therefore listed for referral as contrasted with nonunion men who were not permitted to be so listed.58 Newman's experience with the hiring hall on August 3-5 compounded and confirmed the discrimination against him and confirms our foregoing remarks regarding the discriminatory operation of the hiring hall. With respect to Newman we find violations of Section 8(b)(1)(A) and (2) for the reasons stated. Frederick Bateman is the son of Leonard Bateman, treasurer of Local 8 of the Brewery Workers, who was elected to the same position in the Teamsters on June 6, 1965. There is no evidence that Frederick Bateman at- tended the June 6 meeting but sometime during that week, through his father, he joined the Teamsters. Frederick Bateman attended the July 11 Teamsters meet- ing. Frederick Bateman was at no time a member of Local 8 of the Brewery Workers and, as far as appears, had not worked or attempted to work in the industry. Bateman testified that he commenced going to the union hall on June 7 when Gilman was in charge. Accord- 57 Evidently, Narragansett Western (Cambridge) did call the hall for a man on July 26. In any event, in accordance with the list and the rules that Owens was administering, a man listed on the referral list on July 26 (Cur- tin) was referred from the list and worked for Narragansett on July 26. Depending upon fortuitous circumstances, Hoar or Vincent might have been on the list in the particular spot and on the particular day that the name Curtin was there. 56 As we have seen, Vincent was listed on the referral lists and referred to jobs for about 5 years although he had neither seniority in the brewing industry nor in the soft drink industry. During that period the only thing distinguishing Vincent from a nonunion man was that Vincent was paying union dues and had some kind of union status either as a pernut man with a union card or as a union member. Later, and during the period in 1965 when the events in the instant case occurred, both Hoar and Vincent, in addition to being union members, also had seniority in the soft drink in- dustry. As far as the brewir_g industry was concerned, soft drink seniority, as Respondents state in their brief, was irrelevant . This, then, leaves union 927 ing to Bateman, from this time to the latter part of July, he was at the hall 4 or 5 days a week from 6:30 or 6:45, to 9:30 or 10 a.m. Bateman's name appears on the referral list only once and that was on July 2. At that time Owens offered him a referral to Considine which Bateman refused because of transportation difficulties getting to or returning from the Considine location. 59 Gilman did not testify that Bateman was at the hall every day during the week of June 7 when Gilman was operating the hall. However, Bateman was apparently there at some time during that period since Gilman evidently saw him and knew him but testified that he did not list Bateman because the latter was not a union man. Owens and Bateman had never known each other and Owens did not know Bateman's name until July 2, when he spoke to this man in the union hall about a job at Con- sidine and in the conversation learned his name.60 There is no evidence that Owens was informed or knew that Bateman was Leonard Bateman's son. Owens denies that Bateman was at the hall everyday as Bateman testified. Rockovits states that he never saw Bateman at the hall or otherwise until he saw him at the instant hearing. The Trial Examiner has placed considerable reliance upon the testimony of Rockovits regarding the presence of various men in the hall in June and July and, although the matter is not free from doubt, we are not satisfied that Bateman was at the hall as regularly as he testified. We believe that Bateman was at the hall on July 2 and on a few occasions thereafter since the fact that Owens had of- fered him a job on July 2 no doubt encouraged him to return on other days.61 We find it impossible to determine the number of days on which Bateman reported to the hall thereafter.62 As Respondents state in their brief, Bateman was "in the same category as Newman.. ... He was not a member of Local 8 of the Brewery Workers and he had no seniority in the brewing industry. However, as we have seen, Hoar and Vincent were regularly listed on the referral list and referred to jobs. Hoar and Vincent did not have seniority in the brewing industry but were union members. Also, Vincent had been listed on referral lists and had been referred for a period of about 5 years when he had no seniority in either soft drink or brewing, but was a union member or had union status. On the days, however relatively few, when Bateman was at the hall, the discrimination against him was the same as that prac- ticed against Newman. For the reasons set forth in the case of Newman, we find that Respondents violated Sec- tion 8(b)(1)(A) and (2) with respect to Bateman. James Farrell is a member of Local 8 of the Brewery membership as the distinction between Hoar and Vincent, on the one hand, and a nonunion man on the other, as far as the right to be listed and referred to jobs from the union referral list 11 Considine's records show that Bateman worked for that Company on July 8. The union referral list does not show Bateman as listed or referred on that date and Bateman, in his testimony , did not mention this July 8 employment; we do not know how the job was obtained on that date. 60 It is fairly clear that at the time no one else was available for the Con- sidinejob 61 We do not think that Bateman had been listed on the referral list on July 2 , initially, since Owens did not know his name and would not have listed him anyway since he was a nonunion and nonsenionty man When Owens exhausted the list on July 2, he offered the available job to Bateman and then noted his name at the bottom of the list, with the nota- tion that he had refused the job 62 Since he worked on July 8, he apparently was not at the hall on that day 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Workers and he attended the June 6 meeting. He also at- tended the July 11 Teamsters meeting and saw Owens across the street from the entrance as he entered the hotel. Farrell states that he came to the union hall every day at about 7 a.m. from the middle of June to the end of July. Rockovits testified he saw Farrell in the hall a few times in June. Farrell's name first appears on the referral lists during this period on July 14. As described in the case of Walsh, above, Farrell was listed at a lower point on the July 15 list than should have been the case since he was carried over from the July 14 list in the wrong order.63 Also described when Walsh's case was being considered herein, was the fact that on the July 21 list, Farrell, Walsh, and Moore, who had not been referred from the July 19 and 20 list, should have been carried over in a higher order than certain other men whose names appear. While Walsh and Moore were car- ried over to the July 21 list in improper order, Farrell's name was not even listed on July 21 although it should have been.64 While we are not satisfied that Farrell was at the hall every day, as he claimed during the June-July period, aforedescribed, we do believe that he was at the hall on certain dates during the period when his name was not listed. We are unable to determine precisely on how many occasions but we believe that they were relatively few. We find that Farrell was discriminated against by Respondents in violation of Section 8(b)(1)(A) and (2) of the Act.65 Lawrence Power is a member of Local 8 of the Brewery Workers and has seniority in the industry. He had seniority with Busch but had been suspended by Busch for drinking. The period of suspension was 1 year, commencing April 1965. Power attended the June 6 meeting and voted. He signed a Teamsters card on June 8. Power states that he was at the hall every day until the latter part of July when he obtained employment outside the industry. Owens and Rockovits testified that they never saw Power at the hall from the middle of June through July. His name appears on no referral list. The Trial Examiner, considering all the circumstances and the witnesses on this matter, is not convinced that Power was at the hall as he claims. Accordingly, we find no discrimination against Power by Respondents. 61 Farrell was referred to Busch on July 16 when the Company requested him by name 64 Respondents have pointed out that on certain dates in July other al- leged discriminatees were listed and that Farrell was not listed. Respond- ents argue that there is no plausible reason why Owens would not have listed Farrell on certain dates when it listed other alleged discriminatees if Farrell had in fact been present. The fact is, however, that, as we have just seen, Owens listed Walsh and Moore on July 21, albeit discrimina- tonly, while he did not list Farrell at all whereas all three men had been in the July 19-20 fist and all should have been carried to the July 21 list ss Three or four employers in the past had informed Owens that they did not want Farrell because he was unreliable. However, it was Owens' obligation to register Farrell on the lists since it could not be known on any particular day which employer might call for help. There were also a few other employees whom certain employers deemed undesirable but they were listed and referred on occasion even to employers who, in the past, had expressed their desire not to have such men. In any event, what actual loss of employment Farrell and other discriminatees may have in- curred by reason of the discrimination against them is a matter of com- pliance. It may be in some instances that little or no actual loss was en- tailed but this would not affect our finding of discrimination in Respond- ents' failure to list and/or the listing of men improperly E. Further comments regarding the Section 8(b)(1)(A) and (2) violations We believe that no further discussion is required re- garding our findings on the Section 8(b)(1)(A) and (2) violations insofar as they relate to restraint, coercion, and discrimination against nonunion employees and em- ployees who were known or suspected by Respondents to be Teamsters adherents. However we deem it ap- propriate to expound further on our findings of Section 8(b)(1)(A) and (2) violations by reason of Respondent's unfair operation of the hiring system. Specific intent is not an essential ingredient in either Section 8(a)(1) or Section 8(b)(1)(A) violations of the Act. Restraint or coercion of employees in the exercise of their Section 7 rights is interdicted. Section 8(a)(3), how- ever, is a different situation and it is necessary to consider this section inasmuch as it is an essential ingredient of Section 8(b)(2). Section 8(a)(3), by its terms, interdicts discrimination in regard to hire or tenure of employment. Unlike Section 8(a)(1) and Section 8(b)(1)(A) which refer to restraint and coercion of employees in the exercise of Section 7 rights, Section 8(a)(3) does not say discrimina- tion against employees in the exercise of Section 7 rights.66 In our opinion, Section 8(a)(3), in so many words, for- bids any discrimination not based on fair or relevant stan- dards regarding hire or tenure for the purpose of en- couraging or discouraging membership in any labor organization.67 The crux of the issue is, therefore, the proof or basis for finding that the purpose of the dis- crimination, which discrimination is shown to have ex- isted in the instant case, is the encouragement or discouragement of membership in a labor organization. We do not have here a case where the legal proposition in issue is that the union hiring hall agreement and prac- tice or all such agreements and practices are claimed to be per se discriminatory because they lack certain prescribed provisions, and where there is no evidence of actual discrimination as to nonunion members or as to union members who were interested in affiliating with another union.68 Rather, we have a situation, where aside from evidence of the aforesaid types of discrimination, we have additional or another kind of discrimination based on no fair or relevant standards. And the question is, was 66 This, however, is apparently the interpretation adopted by those who are in disagreement with the Board majority view in the Miranda case, supra Thus, ". . the discrimination which Section 8(b)(2) and 8(a)(3) outlaws is that related to `union membership loyalty, the acknowledge- ment of union authority or the performance of union obligations"' [ i.e., discrimination against the exercise of Section 7 rights]. Miranda Fuel Company, Inc., supra, dissenting opinion by Chairman McCulloch and Member Fanning, p. 197. Cf. Mr. Justice Douglas in Local 357, Interna- tional Brotherhood of Teamsters, infra, stating (365 U.S. 667, 674-675). "The language of Section 8(a)(3) is not ambiguous The unfair labor prac- tice is for an employer to encourage or discourage membership by means of discrimination " 67 Encouragement or discouragement in any labor organization is not synonymous with interference with employee rights under Section 7 of the Act, since, for one thing, concerted activity under Section 7 can be wholly apart from any labor organization. More importantly, as we have en- deavored to show, in Section 8(a)(3), discrimination is not defined as en- couragement or discouragement of membership in a labor organization, but as discrimination for the purpose of encouraging or discouraging such membership. 68 Local357, International Brotherhood of Teamsters, etc. v. N.L R.B., 365 U S. 667. UNITED BREWERY WORKERS 929 the purpose of such last mentioned discrimination the en- couragement or discouragement of membership in any labor organization. On good authority, "... specific evidence of intent to encourage or discourage is not an indispensable element of proof of violations of Section 8(a)(3)" and "an em- ployer's protestation that he did not intend to encourage or discourage must be unavailing where a natural con- sequence of his action was such encouragement of discouragement. "69 In the instant case, employees continued to resort to Respondents' hiring hall despite their suspicion, belief, or knowledge that the referral system was being operated in a discriminatory manner; employees continued to main- tain their membership in Respondents' unions, despite the discriminations and although some of them had voted to dissolve or to disaffiliate from the Union and some of them had in fact joined a rival union; nor is the foregoing attributable solely- to the existence of a union-secunty clause in an existing contract since it was a known fact, as the evidence clearly establishes, that nonmembers of the Union were not even listed in the referral lists although members without seniority in the brewing industry were listed and referred. Despite these facts, in a context of control of the hiring hall operation by the business agent of the Union and the employers' acknowledged obligation to secure their extra employees from the union hall (not- withstanding some deviations by employers which were acknowledged to be such, and which were correctable by the Union as in the case of Newman, above), must testimony of the employees be adduced that, because of the reality of union control and the manner in which it was exercised by the business agent, they were en- couraged to be or to remain union members? Must direct evidence be secured from Respondents that their purpose was to encourage or discourage union membership? This, notwithstanding the nonnecessity of such evidence in other instances where Section 8(a)(3) is involved. Or are we confronted with the propositions that discrimination, based on considerations that are neither fair nor relevant, can never encourage or discourage membership in a union under Section 8(a)(3); and that neither evidence nor reasonable inference can be resorted to, to warrant the conclusion that the aforesaid type of discrimination can be held to have as its purpose the aforesaid encourage- ment or discouragement in violation of Section 8(a)(3); or that, contrary to its wording, discrimination in Section 8(a)(3) is to be construed as discrimination as to the rights of Section 7 and unless it is such discrimination it can never encourage or discourage union membership. When the conclusions set forth in the Board's Miranda decision, above, regarding the Union's statutory obliga- tions and the fact that the Union's contractual rights and its operations of a hiring system, related to the contract, stem solely from its statutory representative capacity, are considered together with the exposition set forth hereinabove, we affirm that Respondents have violated Section 8(b)(1)(A) and (2) with respect to unfair dis- crimination; as well as with respect to discrimination against nonmembers; and discrimination against mem- bers because of Teamsters adherence. The supplemental legal rationale propounded hereinabove involves the same employees as dis- criminatees who were alleged by the General Counsel to be discriminatees and the General Counsel has alleged violations of Section 8(b)(1)(A) and (2) of the Act.70 Once the complaint has issued, it is the responsibility of the Trial Examiner, in the first instance, and ultimately of the Board, to arrive at a determination and they are not bound by the General Counsel's legal theory on fully litigated facts.71 CONCLUSIONS OF LAW As has been stated and found hereinabove in this Deci- sion, the Trial Examiner finds that the employers, above named, are employers engaged in commerce within the meaning of the Act; the Unions, above named, are labor organizations within the meaning of the Act. Respond- ents, as described hereinabove, have violated Section 8(b)(1)(A) and (2) of the Act and have not violated the Act with respect to Lawrence Power, as was also set forth above.72 THE REMEDY Having found that Respondents have violated the Act, we shall recommend that appropriate remedial action be taken. In view of the importance to all concerned that an ex- clusive hiring hall arrangement be conducted in a manner that is fair and nondiscriminatory, we shall recommend that Respondents cease and desist operating the hiring ar- rangement in an unfair and discriminatory manner and from causing or attempting to cause the employers in- volved from discriminating against employees or appli- cants for employment in violation of the Act, as has been found to be the case herein. We shall also recommend that Respondents make whole the discriminatees for loss of earnings, if any, that have been incurred by reason of the unfair and/or discriminatory conduct practiced against them. More specifically, we recommend that Respondents maintain a book or semipermanent type of record to accu- rately, fairly, and and nondiscriminatorily reflect the operation of its referral system from the hiring hall. Each day of operation of the system, should, we believe, be recorded by date on a separate page of the book or record. The names of all employee applicants coming to the hall on the particular day should be recorded in the order of arrival. A new and complete list should be made on succeeding days but carrying over and listing in the new list any names, unreferred, on preceding days. If Respondents wish to use some nondiscriminatory stand- 11 Radio Officers' Union, etc. v. N.L.R B., 347 U.S. 17, 52 Cf Republic Aviation Corp. v. N.L.R.B., 324 U.S 793, where enforcement of an invalid no-solicitation rule, without proof of antiunion purposes, was found to be a violation of Section 8(a)(3) of the Act. 40 In Hughes Tool, supra, findings were made of Section 8(b)(2) and (3) violations although only Section 8 (b)(2) or (3) allegations had been pleaded or proposed by the General Counsel. Also, in Miranda, supra, the Section 8(b)(I)(A) theory of the majority's decision had not been ad- vanced by the General Counsel at any time. °i "He [the General Counsel] cannot limit the scope of the decision which may be rendered upon the evidence adduced . . The proof having been admitted without objections, what is to be done with it is no longer a part of the prosecution of the case." The Frito Company, Western Divi- sion v. N L R B., 330 F.2d 458,465 (C.A. 9). 72 Respondent, International Union of the Brewery Workers, placed its Local 8 under trusteeship on July 4, 1965, and continued said trusteeship throughout the period covered in the instant case. The International is therefore jointly and severally liable for the unfair labor practices Albert Evans, Trystee of Local No 391, International Brotherhood of Team- sters, etc., 11ON LRB 748, 749. 930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ard, such as seniority in the brewing industry, as un- derstood or defined by the Union and the employers, notations can be made next to the names of applicants on the referral list. Thus, seniority men may have the nota- tion "S," and nonseniority men may have the notation "N.S.," signifying, respectively, seniority or no seniority in the brewing industry. There is in our opinion, no il- legality in referring seniority men, as defined, ahead of nonseniority men, and, in the case of seniority men ap- pearing simultaneously at the hall, preference may be granted according to length of said seniority. We recom- mend, in accordance with our view that all applicants be listed, that applicants requested by name by an employer be given the notation "R" next to their names, to signify that they were requested or asked for. Such names, as well as other names, upon receiving referral, should also have noted next to the name of the employee the name of the employer and the date of referral. Reasonable steps should be taken to insure that, when the name of a man listed is called out for referral, he is aware of the fact and should be marked "N.H.," not here, only when such is the case. After a man is marked "N.H.," present rules as to subsequent placing on the list appear to be appropriate. Since there can be disputes, in good faith or otherwise, between the business agent and employees as to whether or not a particular employee was or was not at the hall on a particular date and whether the appearance or nonap- pearance on the list accurately reflects the factual situa- tion, we further recommend that, when a man comes to the hall for referral, he secure from the business agent an inexpensive card or ticket; on this card, the business agent should write or stamp the man's name or initials, with date and time, on both an upper and lower portion of the card; one half the card with such data should be given to the employee and the other half should be retained by the business agent to be used in making up his referral list. In this way each party would be protected, in some reasonable degree, from ill-founded contentions at some later point. We recommend the foregoing not as an inflexible prescription but as furnishing basic guidelines which we believe are necessary, appropriate, and, we hope, helpful. Variations or alternatives are not meant to be precluded. We believe that the modus operandi of the hiring hall, as arrived at, should be disclosed to the Regional Director for Region I or his agents and that it should continue to be available, at reasonable times, to said Director or his agents for 1 year thereafter. Our disposition to set forth in some detail the foregoing is warranted, we believe, not only by the evidence in the instant case but by the fact that there is evidently a con- tinuing contest in the area between the Brewery Workers Union and the Teamsters Union, including their respec- tive adherents among the employees. Owens, Business Agent, their agents, officers, represent- atives, successors, and assigns, shall: 1. Cease and desist from: (a) In an unfair and/or discriminatory manner main- taining, enforcing, or otherwise giving effect to an exclu- sive hiring arrangement or practice with Considine Dis- tributing Company; Narragansett Western Distributing Company; Narragansett Boston Distributing Company; Burke Distributing Company; and Schlitz Distributing Company of Massachusetts. (b) Causing or attempting to cause the aforesaid com- panies to discriminate against employees or applicants for employment in violation of the Act. (c) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Make whole Thomas Walsh, Robert Moore, Ken- neth Hoar, Charles Vincent, Ralph Kirk, Francis New- man, James Farrell, and Frederick Bateman for any loss of pay they may have suffered by reason of the dis- crimination practiced against them. (b) Conduct their exclusive hiring arrangement or practice in the general manner prescribed in the section of this Decision, captioned "The Remedy," or in a manner reasonably equivalent thereto, including access of the Regional Director or his agents thereto as more fully set forth in "The Remedy." (c) Post at their principal offices, places of business, and places where notices to employees and members are customarily posted, as well as on employee bulletin boards at the premises of the employers herein involved, provided the employers are willing, copies of the attached notice, marked "Appendix."73 Copies of said notice, to be furnished by the Regional Director for Region 1, after being signed by Respondents' authorized representatives, shall, be posted by Respondents immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by other material. (d) Notify the Regional Director for Region 1, in writ- ing, within 20 days from receipt of this Decision, what steps each has taken to comply therewith.74 73 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " 74 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read- "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, it is recommended that: Jointly and severally International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery_Work- ers of America, AFL-CIO; Local No. 8 International Union of United Brewery, Flour , Cereal, Soft Drink and Distillery Workers of America, AFL-CIO, and Thomas APPENDIX NOTICE TO ALL MEMBERS OF INTERNATIONAL UNION OF UNITED BREWERY, FLOUR, CEREAL, SOFT DRINK AND DISTILLERY WORKERS OF AMERICA , AFL-CIO; LOCAL No. 8 INTERNATIONAL UNION OF UNITED UNITED BREWERY WORKERS BREWERY, FLOUR , CEREAL, SOFT DRINK AND DISTIL- LERY WORKERS OF AMERICA , AFL-CIO Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT in an unfair and/or discriminatory manner maintain, enforce , or give effect to an exclu- sive hiring arrangement or practice with Considine Distributing Co.; Narragansett Western Distributing Co.; Narragansett Boston Distributing Co.; Burke Distributing Co.; or Schlitz Distributing Company of Massachusetts. WE WILL NOT cause or attempt to cause any of the above-named compaines to discriminate against em- ployees or applicants for employment in violation of the Act. WE WILL pay to Thomas Walsh, Robert Moore, Kenneth Hoar, Charles Vincent, Ralph Kirk, Fran- cis Newman, James Farrell, and Frederick Bateman the wages they may have lost as a result of dis- crimination against them. WE WILL conduct our exclusive hiring arrange- ment or practice in the general manner prescribed in the Trial Examiner's Decision under the heading of "The Remedy." Dated By Dated By 931 INTERNATIONAL UNION OF UNITED BREWERY , FLOUR, CEREAL, SOFT DRINK AND DISTILLERY WORKERS OF AMERICA, AFL-CIO (Labor Organization) (Representative) (Title) LOCAL No. 18 INTERNA- TIONAL UNION OF UNITED BREWERY FLOUR, CEREAL, SOFT DRINK AND DISTIL- LERY WORKERS OF AMER- ICA, AFL-CIO (Labor Organization) (Representative) (Title) 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. If members have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, Boston Five Cents Savings Bank Building , 24 School Street, Boston, Massachusetts 02108 , Telephone 223-3358.