Laborers Local No. 282

LABORERS. LOCAL NO. 282 Laborers International Union of North America, Local No. 282, AFL-CIO (Millstone Constnmction Com- pany, et al.) and Jimmy C. Bollinger. Case 14 CB 3258 Max 31. 1978 DECISION AND ORDER By C(IAIRMAN FANNING ANI) MtI MstRS JI: NKINS ANI) Mt RPIIY On September 12. 1977, Administrative Law Judge Marvin Roth issued the attached Decision in this proceeding. Thereafter, both the General Counsel and Respondent filed exceptions and supporting briefs and Respondent filed a response entitled "Mo- tion to Dismiss Counsel for the General Counsel's Exceptions to Administrative Iaw Judge>'s I)eci- sion." I Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,. and the conclusions 3 of the Administrati e Law Judee. to modify his remedy .4 and to adopt his recommiendeld Order. i Respondcnt' nlotlion to dismiss the (;enerl ( ountel s eicpla is de- nied, hll said mo llon has been ireated a.: iin ans. esrin brief Ihe (;cneral C(ounsel has excepted ti cerltain cred hilihp Ilidin'c mnade h s the Ndirinlstratlse I la Judlge. T is the BoaHrd's esltablhshed pohlics ot to overrule an Admilnlsrati e I aw Judege' resolution, with relpecL to rredi- hilit, unless the clear preponderalti e of all of the relea.ini e IdcC icnn tin c es us that the resolutlens .ale incitrrect .S'lntrldrd 1)r 1i tI11 Prdt nrt. Irp, 91 NLRB 544 (l9Sl), crffd 18 F 2d 302 c 'A 3. 51) 1i Ae h.ir'e ;lrefull examined the record and lind no hal s for rexersig hi, filidings lMemher tenkins Inlaccord with the Board's dcllion in lai , nl lltrl .I 1'4. t1,litrier fliteral Bc1cr1~ ,'lI. ' 226 NiRH tlo i {11't6). s;ould find Ihat Respondent's operatlion of ti esxthisie referral ssienm ulthollut an\ (ihijectlie criteria for the referral of emnplosees Ii.latel Sec shib I iAt aInd t2) of the Act and that the opetaiaon of the dlstrriltiiallts refeirral s)Tent was one of the reaslons ft r Resp1idtiCnl's fiilure to reler allepcd dlscrinirlnl- tees liendlriix, Necisir and icnro e. , cordincls, Membeihr Jcnikins uould find further Ihat said failure .. as lisctilrniialt rs% a.ld In \ Illlion iof Sec 8ht)( I( IAl ;iaand 2i lf the Act ('hlirman Fa;nning arnd Member Mutrphs agree .ih the kdSitinrstrat.ie I ;a Juidge ihat Ihe t eider e fails Io estab lish that Re.,prinderlt's I.ilure If ;ns, to refer Ilendrix, Nconrermn. ;llnd Penrtose ais aI rctull of tile nl:lnner In which Ihe hiring hail was operated or that at lesl with respect ti Peil- rose there wa s ans failure to( refel I he Adminisir.tirse .aw Judge in.ldxertentl specified Interest to he paid at 7 percent: howeser. interest ill hbe calcui.lted a.ckt.rding i tilhe "adjusted prime rate" uised bh the I S Ilnlcrnall Recllucl Ser i ce for interest on tax pamellnts. See ]-it Plunth;mli, d Ilaltirn ( . 138 Nl RH 710 l9h2). for ration.ale firn Icterest pIlanienls ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Laborers International Union of North America, Local No. 282, AFL-CIO, Cape Girardeau, Missouri, its officers, agents, and representatives, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE MAR':lI Ro7H. Administrative Law Judge: This case was heard at Cape Girardeau, Missouri, on various dates from August 30 through December 23, 1976. The charge was filed on June 2, 1976. by Jimmy G. Bollinger, an individ- ual. The complaint. which issued on July 29, 1976, and was amended on August 17 and 19 and October 8, 1976, and at the hearing, alleges that Laborers International Union of North America, Local No. 282, AFL-CIO (herein the Union or Respondent), violated Section 8(b)(1)(A) and (2) of the National labor Relations Act, as amended. The gra- vamen of the complaint, stated succinctly, is that, at all times material, the Union has allegedly operated its hiring hall in a discriminatory manner. More specifically, the complaint alleges that at various times since on or about December 2, 1975, the Union has refused and is refusing to refer Don Bollinger. Jim Bollinger, Ernest Brown, Leonard Daniels. James Harper. Shirley Hawkins, Don Hendrix, Owen Innis. William Miller, Billy Mansell, Norman Morill, Dasie Newcomer, Willard Null, William Penrose, Jr., Rickv Pobst, Bob Sachse. Joe Sachse, Mike Sachse, Wil- liam L.eon Stricklin. Jack Tomlin, and Earl Waterman to various employers who are parties to exclusive hiring hall arrangements with the Union, because of unfair, arbitrary, irrelevant, and invidious reasons, including nepotism. fa- voritism, and the likes and dislikes of the Union's agents.' The Linion's answer, as amended, denies the commission of the alleged unfair labor practices, and raises certain af- firmative defenses.2 All parties were afforded full opportu- nity to participate, to present relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file bnefs. Upon the entire record in this case 3 and from my obser- I-;rl \natcrman testilied that he was laid off from a laborer's job on or aboul Januars 12. 19b.t and registered with the Union for work. but shortly thereafter informed :nion President KelleN that he had obtained emplo)- menl running heas, equipment, and would let Kelley know when he was ai.s.ilhle foIr rferral Wat.ermain was still so employed when he testified at tihe he.ariig In xiew of 3ratetrman's testimons. General Counsel. In its brief. hai mi,\ed f1Ir perml, sin to withdraw Waterman's name from the list of allicd diiciimninatees in Ihe pleadings. The motion is hereby granted. l .I the hea;riig. I granted General Counsel's motion to strike the asserted defenses .f r iudlita.ll estoppel. laches, and unclean hands, and I reserved decision n the nmliion insofar ;is it was addressed to the Union's contention that the compl.int w;as barred hb the time limitation of Sec. 10hb) of the Act As indicated. tnra. I havre found that Ihe Union's contention Is without merilt Errors iii the trans ciipt have been noted and corrected. 236 NLRB No. 70 621 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vation of the demeanor of the witnesses, and having con- sidered the briefs submitted by General Counsel and by the Union, I make the following: FINDINGS OF FACT I THE RESPONDENT UNION AND ITS AGENTS The Union, which maintains its office and hiring hall in Cape Girardeau, Missouri, is a labor organization within the meaning of Section 2(5) of the Act. Pursuant to its charter, the Union has territorial jurisdiction over laborers' work in 12 counties of Southeastern Missouri. Paul Menz is business manager and financial secretary-treasurer, and functions as the Union's chief officer. Fred Kelley is presi- dent and business representative. Both have served in their respective capacities for about 18 years, Menz having ap- pointed Kelley as business representative shortly after Menz took office. Thereupon Kelley was elected president. Together, Menz and Kelley administer the Union's collec- tive-bargaining functions, including operation of its refer- ral system. Generally, Kelley handles jobs in the northern portion of the Union's jurisdiction, and Menz handles those in the southern portion. Each appoints job stewards and foremen, the latter pursuant to collective-bargaining contracts or arrangements with employers. Both issue re- ferral slips. Dean Hency is an employee of the Union ap- pointed by Menz, and for 17 years has functioned as the Union's bookkeeper. Hency is responsible for maintaining the Union's referral list, such as it is. Hency has authority, subject to the direction and instructions of Menz and Kel- ley, to solicit and refer applicants or employees for employ- ment through the Union's referral system. Menz, Kelley, and Hency are each agents within the meaning of Section 2(13) of the Act, and have been and are now agents of the Union acting on its behalf. II. THE BUSINESS OF THE EMPLOYERS INVOLVED Babcock and Wilcox (B & W Construction Company), John F. Beasley Company, B. W. Birk Plumbing, Heating and Cooling, Buckley Construction Company, James H. Drew Corporation, Fruin-Colnon Construction Company, Israel Brothers Inc., Kiefner Brothers Inc., McCarthy Brothers Company, Millstone Construction Company, Penzel Construction Company, Potasnick Construction Company, Statler Masonry, Inc., and Tobin Construction Company (herein respectively B & W, Beasley, Birk, Buckley, Drew, Fruin-Colnon, Israel, Kiefner, McCarthy. Millstone, Penzel, Potasnick, Statler, and Tobin), are con- tractors or subcontractors in the building and construction industry, and, at times material, were engaged in opera- tions at various projects within the Union's jurisdictional area.4 As employers in the building and construction in- dustry, all are employers engaged in commerce or in an industry affecting commerce within the meaning of the 4 Another employer, Brooks Erection Company therein Brooks) was named in the conmplaint; however. in its brief. General Counsel does not contend, in light of the ex idence adduced at the hearing. that there were ans discriminatory refusals t,) refer employees to Brooks. Act. N.L.R.B. v. Denver Building and Construction Trades Council, et al., 341 U.S. 675, 683-684 (1951); Local 20, Sheet Metal Workers International Association, AFL-CIO (Bergen Drug Company, Inc.), 132 NLRB 73 (1961). The complaint alleges and the answer admits that Mill- stone and Tobin (the Employers named in the original complaint), in the course of their respective operations, each annually receives at its Missouri jobsite locations pe- troleum products and other goods and materials valued in excess of $50,000 which are shipped indirectly from States other than Missouri. Millstone, Tobin, Beasley, Drew, Is- rael, Penzel, and Potasnick are members of Associated General Contractors of Missouri (herein AGC), a multiem- ployer bargaining association which is the collective-bar- gaining agency for its contractor members who employ la- bor at highway, bridge, and heavy construction jobsites, (excluding building construction). By virtue of their mem- bership in AGC, the named Employers are, and have been at all times material, parties to a collective-bargaining con- tract between AGC and the Union covering such labor. For the purposes of the Board's jurisdictional standards, AGC and its members constitute a single employer. B & W, Brooks, Buckley, Birk, Kiefner, McCarthy, Pen- zel, and Statler, are, or were at times material to this case, employer signatories to a standard collective-bargaining contract with the Union covering labor at building and construction projects other than those covered by the AGC contract. The contract effective from 1973 to May 15, 1976, and the contract effective since that date are herein referred to respectively as the "old B & C contract" and the "new B & C contract." The contracts were executed pursuant to collective bargaining in a multiemployer unit. Alberici-Fruin-Colnon, a joint venture, and Blount Broth- ers Construction Company (Blount) were and are similarly parties to both contracts. In a related case, to be discussed herein, the Board found that the operations of Alberici- Fruin-Colnon met its inflow commerce standard. Fruin- Colnon, the remaining employer named in the complaint, is signatory to a national multiemployer collective-bargain- ing contract with the Laborers International Union, the terms of which are incorporated by reference in a contract with the Union. The national contract, known as the Na- tional Constructors Association Contract, is identical in all material respects with the provisions of the old B & C contract. In a second related case, also to be discussed herein, the Board found that Fruin-Colnon met the inflow standard. I find that the operations of all of the Employers, either individually or collectively, meet the Board's inflow standards for nonretail enterprises, and that it would effec- tuate the purposes of the Act for the Board to assert its jurisdiction in this case. Local 3, International Brotherhood of Electrical Workers, AFL-CIO (Atlas Reid. Inc.), 170 NLRB 584, 585 (1968). 5 Moreover, General Counsel is alleging, In essence. that the Union en- gaged in a pattern of conduct which was not limited to the operations of any single employer or group of employers. Consequently. it would effectuate the policies of the Act to assert jurisdiction over the entire case. even as to the operations of employers, if any. who do not meet an) commerce stan- dard International Brotherhood of Electrical Wobrkers. Ioral Inion 379 (Fast- buoh Electrric Co.). 230 NLRB ,626 (1977L. Compare Madison Building & (on.rruclion Trades Council. et as (H & K Larthing ( o i. 134 NL RB 517 t1961h). 622 LABORERS. LOCAL NO. 282 III THE ALLEGED UNFAIR LABOR PRACTICES A. The Union 's Referral Agreements and the History of Related Litigation The referral provisions of the AGC and B & C con- tracts are, except as indicated herein, substantially the same insofar as relevant to this case. The contracts cover, in sum, all general and semi-skilled labor. Article III of the AGC contract, governing the hire and transfer of employ- ees, provides that the Union must be notified of the Em- ployer's manpower needs and employment opportunities. At the prejob conference, the Employer must outline the probable number and qualifications of employees needed, and the Union must notify the Employer of the probable number and qualifications of men available. Thereafter, the Employer must request referral of applicants from the Union for all available jobs (whether new or replacement). The Union must fill the request as soon as possible and if it does not do so within 24 hours under the AGC contract, or within 48 hours under the B & C contract, the Employer may hire from any source. In an emergency, the Employer may hire employees from any source, but for not more than a 24-hour period. The Employer may also bring in up to two men or 25 percent of the laborers work force, which- ever is greater, including working foremen, and the Union agrees to give consideration to more, consistent with the Employer's needs. The Employer may reject or select from among applicants referred, and may select employees for reduction in force in a nondiscriminatory manner. In fact, as found by the Board in Fruin-Colnon Corporation, 227 NLRB 59 (1967), at least some employers have in reality. if not in form, deferred to the Union in the selection of em- ployees for layoff,6 and the Union has exercised that power in a discriminatory manner. Specifically, the Board found, inter alia, that Union President Kellev discriminatorily se- lected four employees for layoff, including Owen Innis. be- cause of his activities on behalf of the dissident movement in the Union, i.e., because of activities protected by Section 7 of the Act. The Board further found that Kellev selected a second employee for layoff because he had declined to contribute through the Union to the United Fund, a third employee because he had complained about failing to re- ceive a certain wage premium, and a fourth and highly qualified employee because the alternative would have been to lay off Kelley's uncle. The Board further found that Kelley caused Fruin-Colnon to discharge William Miller and Joe Sachse because of their activities in the dis- sident movement. The Board's findings and conclusions in Fruin-C,,lnon. supra, and the companion case of .41/herici-Fruin-Colion, 226 NLRB 1315 (1976), are binding in this case. I find that the Board's findings discussed above, and additional find- ings discussed infra, are evidentiary of (I ) the Union's ani- mus towards some of the alleged discriminatees in this case, (2) its knowledge of the activities of the dissidents, (3) the arbitrary manner in which the Union has run its refer- ral system, (4) the Union's proclivity to violate employee ' See also I.ahorers Internaotlio nal l no, ,i orth .4 ler,. a.1 ft. ( 10 L.o,, /a '.282 tilngl. Ik in. a Joint I t'nrtie, 26h \I. R IB )8 ( 1976h rights, inter alia, by discriminatorily causing them to lose employment, and (5) the lack of credibility of Kelley.7 I find without merit the Union's argument that such evi- dence cannot be considered if it involves matters which took place more than 6 months prior to the filing of the present charge. That argument runs contrary to settled law. See N. L.R.B. v. Carpenters District Council of Kansas City and Vicinity, AFL CIO, 383 F.2d 89, 95-96 (C.A. 8, 1967). Moreover, as discussed, infra, I have found that the IO(b) period in this case commences at a date earlier than De- cember 2, 1975. The AGC contract provides that the Employer shall de- signate working foremen, and the Union may appoint job stewards. However, the old B & C contract provided that, in addition to the stewards, the Union would appoint fore- men and the general foremen on all jobs of over $2-L'/ million. Under the new B & C contract, the cutoff point is raised to $3 million. The B & C contract further provides that there shall be one foreman for every eight men. Al- though the National Constructors Association contract does not empower the Union to appoint foremen, the Union was given the power in its local supplementary con- tract with Fruin-Colnon Corporation. Fruin-Colnon, supra. Both the AGC and B & C contracts contain a union-securi- ty provision which requires union membership on the 8th day of employment. In Alberici-Fruin-Colnon, supra, the Board found that the Union violated Section 8(b)(l)(A) and (2) of the Act by causing the Employer to terminate Bobby Lloyd Jackman (not an alleged discriminatee in the present case) as general foreman, because of his activities in the dissident movement, specifically, "because he pro- moted and circulated a petition challenging Menz and Kel- ley, and because he announced his candidacy for union office." The Union has vigorously enforced its prerogatives un- der the contracts (sometimes in a discriminatory manner) and, as found in Fruin-Colnon and Elzinga-Lakin, expand- ed upon those prerogatives by assuming the power to select employees for layoff and expanding its power to appoint foremen. This fact, and the contractual provisions relating to the prejob conference, 24- or 48-hour period for refer- rals, and allowance for emergency hiring, renders question- able any factual basis for the Union's assertion that it was excused from utilizing a referral list or other systematic referral procedure because, allegedly. employers frequently called for help with little or no advance notice. Union Pres- ident Kelley testified that more than one-third of referral As to (5). the Administrative Law Judge found, in Fruin Colnon that Keller w;as not a credible vitnes. The I nion contends that I should not take this finding Into consideratlion hecause it was allegedly based on un- controverted evidence adduced bs General Counsel concerning the shootel iltg incident on October 23, i975 In fact. this was not the basis for the Administrative Law Judge's finding: rather. the Administrative Law Judge hased his findiding on an appraisal of Kelle"s testimonN in the unfair labor practice case hiMoreoser. Kelles and Menz did testifs in a criminal proceed- ing in the U.S Distrct ( Court ror Ihe Eastern District of Missouri in which, In part on the ha'ic of the sho.ting incident. the) were convicted of conspir- ing and acting in furtherance of a conspiracs) to unlawfully interfere with the rights of Joe Sachse, Owen Innis, and other members to participate in the dissident Inoienenl. ehe c)nlolctionl were affirmed on appeal Ito the ighth C ircuit ( ourt of Appeals and like the Borard decisions on this and o ther matters. is ,c j;udirt .i to ihe ni tiers derided therein i ttllh IS i,rll*r ( ',r (. Gvnrai V.tori ('oup ,40i I. S $58, 569 (19 51) 623 DECISIONS OF NATIONAL l.ABOR RELATIONS BOARD requests were made at night, i.e., to Kelley or Menz at home. and that more than 99 percent of these requests were for the next morning. Kelley and Menz testified that, when called at home, they did not use the referral list (which was kept at the union hall), but Kelley added that "I do my best . . . to send out [union] members." Kelley further tes- tified that some 10 to 16 times since December 2, 1975. employers have called the hall, giving only about 2 hours notice, and that on such occasions he will exercise his dis- cretion as to whether to use the referral list. However, Kel- ley and Menz were contradicted by Don Vance, steward on the Millstone job who, as a witness for the Union. testi- fied that "you usually get a work order a day or sometimes two days before you go to work." Kelley and Menz were further contradicted by testimony of Larry Burford. fore- man-steward on the McCarthy job and also a union wit- ness, and bs employer records, some of which will be dis- cussed in connection with specific referrals. The Union officials were further impliedly contradicted by Bookkeep- er Dean IHencv. who testified that he will not refer an em- ployee without being told to do so by Kelley or Menz, even if the employer needs help right away, notwithstanding that Kellev and Menz are frequently in the field and be- yond contact for periods of time. Menz also testified that the Union had to resort to extraordinary measures to ob- tain men for the Kaiser project at New Madrid. because of the large size of the laborers' complement. However, this took place long before December 2. 1975. No comparable hiring took place after that date; indeed, the Union asserts that there was a shortage of job opportunities during the period alleged in the complaint. I find improbable Menz' suggestion that an employer will commence a concrete pour with an inadequate complement, and then call the Union in the expectation that it will refer men on 2 hours notice. Significantly, the Union failed to present a single employer witness, notwithstanding that man)' of the mat- ters testified to by the union witnesses, e.g.. urgency of requests, skills and requests for particular individuals or qualifications, were matters on which the employers were knowledgeable. and presumably disinterested potential witnesses (or actual witnesses called bv General Counsel). In view of the lack of credibility of the union witnesses. which was repeatedly demonstrated throughout this pro- ceeding. and other evidence and considerations which will be discussed at various points in this Decision, I am not inclined to c;edit the freewheeling and often contradictors or inherently implausible testimony of Kelley and Menz concerning these matters, absent corroboration by other. more probative. evidence. B. The Di)sideint Mlovctmeenl and ihe Unlion's Responsc The activities of the dissident movement in the summer and fall of 1975. and the Union's response to that move- ment, are documented in the Board Decisions in Fruin- Colnon and A lberici-Fruin-Colnon1. I he foregoing facts en- compass the Board's findings, as supplemented by evi dence adduced in the present case. In Fruin-Colnon, 227 NLRB at 62 Ihe Judge found as follows: T he record in these cases reveals that some of the members of Local 282, including members employed by Fruin-Colnon. were dissatisfied with the manner in which the affairs of the local union were being con- ducted. The dissatisfaction centered in major part on a past election of union officers and the manner in which Fred Kelley and Business Manager Paul Menz were elected to office.8 Sometime in mid-July 1975 [Jim] Bollinger and employees Owen Innis, Joe Sachse. and William Miller met at the 61 Club and discussed the possibilities of obtaining a new election of union officers. Other members of Local 282 em- ployed by other concerns were also present and, either at the meeting or as a result of the discussions, Bol- linger drafted a petition which was duplicated in about 30 copies and circulated to members on the Fruin-Colnon and other projects. The petition ex- pressed dissatisfaction with Kelley and Menz, and specified six separate reasons why their election to of- fice was illegal. TIhe Judge further found that in mid-August 1975 Kelley told Fruin-Colnon's job superintendent that he was dissat- isfied with Joe Sachse, Bill Miller. and Owen Innis. that they were in a tavern blowing their mouths off, and that the l nion would like to have them laid off, adding that the employees had been "stirring up bullshit" by shooting their mouths off at the tavern about how they did not like the way the Union was being run. Jim Bollinger. the Charging Party in the present case, had been a friend, favorite, errand boy, and strong-arm man for Kelley for several years. He was a union trustee, and Kelley had appointed him to positions of foreman and job steward. However. Bollinger underwent a change of heart and, whether from altruistic motives, personal ambi- tion, or both, he became a leader in the dissident move- ment and, subsequently, a principal witness in the various proceedings against the Union. Kelley, and Menz. How- ever, he concealed his activities from Kelley. pretended to remain loyal to the union leadership, and did not disclose his dissent until the shooting incident on October 23. 1975. On July 8, 1975. Bollinger and Bill Kitchen placed an ad in the local newspaper. ' he Southeast Missourian. announc- ing that on July 11 there would be a union meeting to elect a business agent and assistant, which would be the first union meeting in 3 years. Kelley and Menz promptly placed a reply ad which denounced the July 8 ad as illegal and false. Kelley asked Bollinger if he knew who had placed the ad, and Bollinger pretended not to know. Kelley told Bollinger that "we got some smart [s.o.b.] between us somewhere," who would be sorry." I he Board found that during the period from August 25 to October 10, 1975, Kelley, for discriminatory reasons. caused the transfers and discharge of Miller, and the termi- nations, inter alia. of Sachse and Innis. The Board found In1 .4/hrriii ruin-( lm,n the Board rejected the t nion's argument that the empIloees ; activities were noit protected bh the Act because their chal- lenge i( the 1974 election (or failure to, coinduct an elecection was untimels I rg ar ilent asr again raised in the present case, and it is rejected I i d, nnl credit Btdllinger's tetinmln that Iselile threatened to star e the " ,o" tin death BHilinger Alla nibihlguois Iabhut when thllis alleged state- nIlli iss made, anld conlradiltors ah,out the ords hich Kelles used 624 LABORERS. LOC Al NO. 282 that Kelley told Bollinger. with reference to Miller and an- other employee, that "we're getting rid of these sons of a bitch that's not with us," that he wanted to get rid of Sachse because of his criticism about how the Union was being run, and, with reference to the Board's investigation of Miller's charge. that "we are just going to have to lie like a bunch of dogs." The next significant developments took place during the period from October 21 through 24. 1975. The following is a composite account of those developments as found in Fruin-Colnon, 227 NLRB at 67. and -4lhcrici-ruin-('ohllo, 226 NLRB at 1319. 1320: About September 4, [Bobbhy Jackman had a conversa- tion with member Dallas Dover about the possibilities of a new election for officers, and Dover asked Jack- man if he would run for president or business manag- er. Jackman agreed that he would think about it. On October 21. Jackman, I)over and other union mem- bers met at a tavern in Scott C'it\. Missouri, and agreed to prepare and circulate a petition calling for a new election of union officers. Jackman agreed that he would run for office if the petition resulted in a newa and fair election. On the following evening. October 22, Jackman aind other members of Local 282 met at his home and had a further discussion about the petition for an election. A petition was drafted and signed expressing dissatis- faction with Business Agent Menz and President Kel- ley. and specified six separate objections to the man- ner by which Menz and Kelley had been elected to office in the prior election. About I I p.m., after the meeting had adjourned. Jackman received a call from Menz, who stated that he had to talk to Jackman and would arrive shortly. When Menz drove up, Jackman entered the car and saw a 38 caliber revolver near Menz' leg. Menz said, "Bob Jack. what the hell is going on?" Jackman asked what Menz meant. and the latter replied, "I heard that you were passing these petitions around down at the job and getting them signed." Menz added that he didn't believe it and thought he would come to Jackman's home and see for himself. Jackman admitted he was running for business agent. Menz replied that . . . he had been good to Jackman. Jackman countered that he had also been good to Menz, and Menz answered that Jack- man had better get his running boots on because there would be an election in 1977 and it would he a hell of a race. As the two parted company. both expressed that they harbored no hard feelings. On the morning of October 23. Joe Sachse and Owen Innis. accompanied by member Dallas Dover. visited a construction project in ('ape (iirardeau for the purposes of soliciting signatures for the petition for a new election of union officers. The three mem- bers parked Innis' truck and entered the jobsite. where they talked to some of the laborers and obtained some signatures on the petition. During the course of the visit. Sachse appears to have had an exchange with an individual named John Cason. and Sachse, Innis. and Dover left the site soon thereafter. As thev neared In- nis' truck. Fred Kellev started to walk toward them carrying a baseball bat under his arm. The members hurried into the truck, but found that one tire was flat. Nevertheless, the, drove off toward a service station, but as they departed Kelly threw the baseball bat and hit the top of the truck. As they neared a service sta- tion located at some distance Sachse observed that they were being followed by a red Cadillac driven by Paul Menz. As Menz passed Innis' truck, Fred Kelle\ stuck his hand out from the Cadillac and fired shots from a revolver at the truck. Sachse saw Kelley fire two shots, heard three. and later examination of the truck revealed that it had been hit three times. The Respondent L nion presented no testimony to rebut or refute the evidence of the assault and violence perpe- trated by Fred Kelle, and Paul Menz on October 23. I'he Board found that the Union violated Section 8(l( I )(A) of the Act bh the assaults and acts of violence perpctrated by Kellex and Menz on October 23, and the salme events were encompassed b) the criminal conviction discussed. upgra. I'hat same day. Jim Bollinger left the Fruin-Colnon project, and six other employees who sup- ported the dissident movement. including Wiliam Stricklin. Jack Iomlin. and Ernest Brown, left work at the Alberici- Fruin-Colnon New Madrid project when they heard about the shooting at C'ape Girardeau."° The Administrative Law Judge found that the following events took place at Nesv Madrid the next day (226 NLRB at 1323): Menz and Kelley brought five other individuals with them to the New Madrid jobsite on the morning of October 24. After the Union's agents had accom- plished the termination of Jackman, Menz, Kelley, and those who accompanied them met with Fore- man Ralph (Eddie) Brant. and the meeting developed into a heated confrontation attended by violence and threats of violence. M! findings with respect to this confrontation are based on a composite of the testi- mons of Brant. Fred Joe Rilev. and William [Strick- lin,1 and I have rejected the testimony of Menz. Kel- les. and Jack Kitchen as inherently incredible. Men . . . told Brant that the petition for a new election for union officers, which Brant and other members had circulated, was illegal. a bunch of bullshit and had to be stopped. .. . Menz threatened that the petitions going around would have to stop or somebody would get in trouble. Brant asked if Menz had anything against him. While it is not clear what Menz replied, Bob Worthy, one of those who came to the jobsite with Menz and Kellev. answvered. "'\ell. I have got something against him. I never have liked the son-of-a-bitch [and] I will tear his god damned head off his shoulders." Worth, took off his glasses. spit out his tobacco and started to Ih ,hci r * rc' f i Ihh, 1,kman\ R ph Brani. md f rd Rtlkm 625 DECISIONS OF NATIONAL LABOR RELATIONS BOARD swing at Brant. Brant backed off protesting that he didn't want any trouble, and Worthy was restrained by Jack Kitchen and others. When the tension had abated Brant asked Menz, "Is that what you brought this son-of-a-bitch down here for?" Menz' reply, if any, was not audible, but Fred Kelley asked if Brant was talking to him. Brant replied that he was not, and repeated his question to Menz. Kelley interrupted again, repeatedly telling Brant to shut up. When Brant did not comply Kelley put his hand in the pocket of his jacket, raised his hand in the pocket in front of Brant's face and said, "Shut up or I'll blow your goddam head off." Upon the credited testimony of William [Stricklin] I find that Fred Kelley's jacket pocket contained an article which [Stricklin] observed to be the handle of an auto- matic pistol. Brant and the other employees present left the scene. I find that the above-described conduct of the Re- spondent Union was prompted by the petition for a union election which Brant, Jackman, and other union members had prepared and circulated. I also find that the Respondent Union's conduct restrained and coerced Brant and the other union members who were present in the exercise of their Section 7 rights. Fred Kelley is an admitted agent of the Respondent Union, and his vocal threat, accompanied by a physical dis- play of force against Brant is clearly a violation of Section 8(b)( )(A). Worthy is not an admitted agent of the Respondent Union, but he was brought to the job- site by Menz and Kelley, and they both ratified and condoned his assault on Brant. * * + * * I find that the five persons who accompanied Menz and Kelley were not intended as replacements for employees who left the job on October 23, but were brought to the jobsite in contemplation of acts of intimidation and violence. The Board, in affirming the Administrative Law Judge's findings and conclusions in Fruin-Colnon and directing cer- tain extraordinary remedies because of Kelley's "demon- strated . . . proclivity to violate the Act," described Kelley's role as follows (227 NLRB at 59): The record in this case reveals that, for all practical purposes, Kelley had complete authority over the work performed by Respondent Union's members on the Respondent Employer's Charmin Paper project. Pursuant to the provisions of the collective-bargaining agreement between Respondent Employer and Re- spondent Union, Kelley appointed all the foremen who supervised the employees on the project. Further- more, Respondent Employer permitted Kelley to se- lect those laborers to be laid off when conditions ne- cessitated a reduction in work force. Possessed with these powers, Kelley clearly had a duty as an elected union official to administer Respondent Union's af- fairs, which here so greatly affected the employees' working conditions, in an equitable and orderly man- ner for the benefit of each and every member of Re- spondent Union. Instead, Kelley served as a virtual dictator while presiding over the affairs of Respondent Union, brooking no opposition to his authority. In this regard, the record shows that Kelley caused the discharge or layoff of seven employees for reasons personal to him and all in contravention of the Act. Moreover, when Kelley's efforts failed to quash the employees' opposition to his position, Kelley then re- sorted to violent conduct, including the throwing of a baseball bat at employees, and later shooting at union members who were attempting to secure signatures on a petition for a new election of union officers, a right clearly guaranteed them by Section 7 of the Act. From the evidence herein, it is clear that Fred Kel- ley has little or no respect for the various rights guar- anteed employees under the National Labor Relations Act. As Fred Kelley was the guiding force in the mas- sive unfair labor practices found herein, the remedies provided by the Administrative Law Judge do not suf- ficiently reach the root of those violations. We note that Fred Kelley has served as an officer of Respon- dent Union for approximately 17 years. The record further shows that he is well versed in the field of labor relations. Yet, faced with a legitimate internal union dispute over his authority, Kelley in order to retain his position plotted, directed, and caused dis- crimination against the employment status of Respon- dent Union's members, and used violence to force their allegiance to him and to dissipate support for the employees' petition. In effect, Kelley tried to control the labor policies of Respondent Employer for his own personal benefit. Kelley's attitude towards fair representation of the union members is succinctly de- scribed in his blatantly unlawful remarks (before caus- ing two of the discriminatees to be fired) that "We're getting rid of these sons of a bitch that's not with us." We conclude that such deliberate and violent viola- tions of the Act by so informed a labor official as Kelley warrant the inclusion of additional remedies. I find without merit the Union's contention that the events of mid-July through October 1975 are too remote in time to have probative value as evidenced in the present case. Rather, the unlawful conduct which I have found in the present case is simply a continuation of the same pattern of conduct which the Board found unlawful in Fruin-Colnon and Alberici-Fruin-Colnon. The date of December 2, 1975, has no substantive significance in this chain of events; rather it reflects the view of General Counsel that such date is the cutoff point for purposes of the time limitation of Section 10(b) of the Act. ' " In a third related case. Elzingu-l.auin, iupru, the Board dismissed a complaint predicated on a charge, filed by Norman Morill. alleging that the I nion had discriminnatorilN c;lused the lav(iff of Morill, RlckN Pobst, and Don Bollinger on October t, 1975 IThe [)ecision refers only to "employee Bollinger": however. I have taken judicial notice of the formal papers in that case, which reflect that the employee in question was Don Bollinger.) General C(ounsel's case was based on the contention that the Union's sys- tem for selecting empl)sees fir la)off was per se, weighed against nonmem- hers such as Morill. Pobst. and Bollinger, who were denied membership in the Union, The Board found that the layoffs were unrelated tii their al- tempts to obtain union membership. General C ounsel did not contend In 626 LABORERS. LOCAL NO. 282 C. The Union's Referral List and Referral Procedures. and the Union's Arguments Concerning the Adequacy of the Complaint General Counsel served upon the Union a subpoena duc- es tecum, directing the Union to produce at the hearing scheduled for August 30, 1976, inter alia. "Original referral lists maintained by [the Union] for 'he period from June 1, 1975 through present." The Union moved to quash the subpena; I heard argument, denied the motion in pertinent part. and directed the Union to produce the lists. The next day, in open hearing, union counsel proffered the docu- ment which was subsequently introduced in evidence as General Counsel's Exhibit 23, and which will hereafter be referred to by that designation. Union counsel represented that General Counsel's Exhibit 23 was proffered in re- sponse to the subpena, and was a true copy of the Union's referral list as of August 30, 1976, the original having been shown to counsel for General Counsel and returned to the Union. His statement was made in the presence of Kelley and Menz, who were present throughout the hearing. General Counsel's Exhibit 23 contained 12 sheets of printed white forms, with headings for entries "Date," "Name and Town," "Telephone Number," "Contractor Last Worked For," "Qualifications," "Union Member or Permit," and "Went to Work." The printed sheets con- tained entries of names running consecutively by date from August 25, 1975, to August 27, 1976. Attached to the print- ed sheets were two additional sheets of yellow pad paper, without headings, containing names with entries dated from "7 23-75" to "9-3-75." Union counsel represented that the Union revised its list every August, and that Gen- eral Counsel's Exhibit 23 was begun in August 1975 at which time the previous list was scrapped. The taking of testimony commenced on October 19, at which time Bookkeeper Dean Hency was summoned as General Counsel's first, and adverse, witness. Hency dem- onstrated a determination not to testify to anything which might jeopardize his job. Hency constantly resorted to what might be described as a "Nuremburg defense." i.e., that he was only obeying the orders of Kelley and Menz. I find it incredible that a person who worked for the Union as long as Hency could be as ignorant of the Union's refer- ral procedures as he professed to be. Hency testified that the Union maintained only one list in its office, although older lists were probably kept there, that the printed form was prepared by him, probably on August 25, 1975, and was still being used by the Union, and that the previous list had been maintained on a yellow pad which was not used after August 25, 1975. Hency professed to be unable to explain whether the names on the last two (yellow) sheets were carried over to the printed list, insisting that he only put down names when he was told to do so by Menz or Kelley. The names on the yellow sheets included that of Elzinga-l. kin that the Utnion's hiring hall or job referral sNstem was dis- criminalor- and none of the three Board decisions is ref ljiludiatr of that question which is. of course. the central issue In the present case. Itisseer. the Board's findings and conclusions in Elzmnga-Lakln. like Ihose In Frun- C(,lnon and .4A erii-Fruin-Colnon. are es identiarN In the present case. and I ha~ie taken all three into consideratiot in rendering ms decision. Willard Null, who had his name entered on the referral list on July 30, 1975, after being laid off from a bridge con- struction job of contractor Al Johnson which was covered by the AGC contract. In fact, Null's name was not entered on any' current list until December 5, 1975, when he re- joined the Union in the hope that it might help him get work. Menz testified that applicants who registered prior to August 25 were cut off and not carried onto the current list, and he conceded that this action was "arbitrarily" tak- en. Menz subsequently rationalized that the action had something to do with college boys who go back to school. However, this explanation, even if true, would be irrelevant to year-round laborers such as Null. Menz admitted that none of the employees whose names appeared on the list were notified that their names were being cut off and that the Union was starting a new list. Menz testified that the action was announced at a union meeting, but his testi- mony was not corroborated by minutes or by the testimony of other witnesses. Even if true (and I find that it was not), such an announcement would be of no use to nonmem- bers. including Null. Menz professed to be unable to ex- plain why Dave Penny, whose name appeared on one of the yellow sheets as of August 25, was carried onto the printed form, while others whose names appeared as of that date, including some which appeared above Penny's name, were not so transferred. During the presentation of General Counsel's case, ap- proximately 12 witnesses testified, in sum, that throughout the period from August 1975 to February 1976 the only referral list which they saw was a yellow scratch pad main- tained by Hency. No printed form such as General Coun- sel's Exhibit 23 appeared until the spring of 1976. General Counsel rested his case on November 12, and the hearing resumed on December 20. On December 21, the Union presented Paul Menz as a witness. During Menz' testimony, the Union, for the first time, identified and offered in evidence a document, Respondent's Exhibit 4 (needless to say. consisting of yellow scratch pad entries), which Menz asserted was the actual out-of-work list which the Union used from September 3, 1975, to January 19, 1976. Menz further testified that he was aware of the exis- tence of Respondent's Exhibit 4 at the time General Coun- sel subpenaed the Union's records. Respondent's Exhibit 4 contained numerous names (crossed off) which were not entered on General Counsel's Exhibt 23. I rejected Re- spondent's Exhibt 4, holding that the Union's response to General Counsel's subpena. by which it represented Gen- eral Counsel's Exhibit 23 to be the only list for the period in question, precluded admission of Respondent's Exhibit 4. General Counsel contends in his brief that "General Counsel's Exhibit 23 is the best evidence available (except where qualified by credible testimony of General Counsel's witnesses) to establish the order and dates on which vari- ous people signed the list," with the qualification: "That is not to say the entire list is accurate." General Counsel may be overly charitable. In fact, the Union has never pro- duced the true list or lists. Initially. and only in response to a subpena, the Union produced General Counsel's Exhibit 23. which as brought out by subsequent testimony con- 627 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tained false and falsified entries. After a parade of witness- es made clear to the Union that it would have a hard time persuading the trier of fact that the printed form was the true list. the Union sat back and at the last possible hour, like a magician, pulled another false or falsified list out of its hat. The Union also hoped to undercut General Coun- sel's case and obfuscate the issues by suggesting that em- ployees not listed on General Counsel's Exhibit 23 were entitled to referrals ahead of the alleged discriminatees. I find that General Counsel's Exhibit 23 may be relied upon to the extent that the entries thereon constitute admissions against union interest, or are corroborated by employer records or the credible testimony of employer or employee witnesses for the General Counsel. Moreover, the evidence indicates that, whatever or wher- ever the Union's out-of-work list might be, that list was honored more in the breach than in the observance. Labor- er Raymond Dunn testified without contradiction that Hency told him that there was no way the list could be kept straight because Kelley and Menz would telephone employees and never tell him. Even accepting the testi- mony of Kelley and Menz at face value, it is evident that referrals were often made in an arbitrary and capricious manner, and were dependent upon the whims of Kelley and Menz. Kelley testified that, when he got calls from employers at his home, he would just use "common knowl- edge" by getting names from stewards or his own recollec- tion. Menz testified that even at the union hall he made his own decision as to whether or not to use the out-of-work list. Menz further testified that, if a steward requested a particular employee, he would go along with that request. Both Kelley and Menz testified that they felt under no obligation to refer to the list when referring employees who were to be appointed as stewards or foremen. Kelley and Menz were contradictory and evasive in their testimony concerning alleged policies in the referral procedure, e.g., whether employees were required to come to the union hall in order to register for work, whether employees were placed on the bottom of the list if they refused a job. whether employees remained on the list if referred to a job of short duration, whether traveling distance played a fac- tor in an employee's selection for referral, and whether an employee would be called for referrals if he was working at a nonconstruction, nonunion, or nonreferred job. When bogged down in these and other inconsistencies on cross- examination, Kelley sometimes tended to avoid the ques- tions by throwing verbal spitballs at the alleged discrimina- tees. In fact, the Union had no consistent referral proce- dures. Rather, as will be discussed in connection with the individual alleged discriminatees, Kelly and Menz simply invoked such alleged policies on a selective and arbitrary' basis. Menz and Kelley testified about skills and qualifications. In fact, qualifications played only a minor role in referrals, and skills, as such, were not a factor at all. The jobs to which employees were referred comprised unskilled or semiskilled work, all of which was learned on the job. There was no formal training program, either by employers or the Union, for any category of laborers' work. Employ- ers only infrequently requested employees having a partic- ular semiskill, e.g., hod carrier or grade checker. The Union did not always honor such requests, but instead sometimes sent employees who did not have the requested qualifications. Grade checkers were seldom needed, i.e., there might be a need for a grade checker on a job with a substantial amount of excavation work, and even a grade checker required only minimal experience and on-the-job trailing, because laborer grade checkers did not work with instruments. When an employer hired a crew to perform hod carrier work, it was only necessary or desirable that some of them have prior experience. Moreover, when em- ployers, especially larger firms, considered known ability or experience to be a significant factor, they frequently exercised their contractual right to bring in some of their own regular employees. In light of the foregoing evidence, I do not credit the testimony of Menz (uncorroborated by employer testimony), that he frequently got requests by skill. I'he testimony of Kelley and Menz concerning their pro- fessed knowledge of employee qualifications was at best, unreliable. Kelley asserted that the Union tried to keep a record of qualifications, and Menz testified that most men on the list will put down their qualifications. However, both Kelley and Menz admitted on cross-examination, in sum, that they did not know the qualifications of all mem- ber applicants, and knew less about nonmembers. Kelley demonstrated a conspicuous lack of knowledge concerning the experience and abilities of the alleged discriminatees, although all had worked on union jobs, including some as union-designated foremen or stewards. In fact, until Gen- eral Counsel's Exhibit 23 made its appearance in the spring of 1976, the Union kept no record whatsoever of employee qualifications. Although this exhibit, a printed form, Gen- eral Counsel's Exhibit 23, contained a column for the entry of qualifications, applicants were not informed of this fact, and Bookkeeper Hency made no entries unless requested to do so by an applicant. Only a few such entries were made. There is no probative evidence that Kelley, Menz, or Hency ever made use of these entries, and the column was used to make other (including falsified) unrelated entries. The Union's disregard of objective qualifications was typi- fied by Menz' explanation of why he referred his son Dan- ny to the B & W job. B & W Superintendent Gary Ricken- brode informed the Union that the job required working on steel beams at heights of 200 feet or more. Menz in his testimony went to great lengths to explain how important it was for him to know which applicants could work at heights. Menz admitted that Danny Menz had no prior experience working on heights as a laborer, but asserted that he knew his son was qualified because he had seen him work on a barn roof! At the time employees with bridge construction experience, e.g., Willard Null and William Miller, were going without work. In light of the foregoing evidence, I do not credit the testimony of Kelley and Menz concerning qualifications as a factor in referrals, except to the extent that such testimony is corroborated by the testi- mony or records of employer witnesses presented by Gen- eral Counsel. As the alleged discriminatees were to learn, entry of one's name on the out-of-work list gave no assurance of job referral. The more reliable path was to be favored in the eyes of Kelley' or Menz. Prior to the events of Septem- 628 L ABORERS. ILOCAI NO. 282 her and October 1975, most of the alleged discriminatees did not even find it necessary to enter their names on the out-of-work list in order to obtain referrals. Personal con- tact with Kelley or Menz, or contact through a friend or relative, usually sufficed. The Union suggests that, if such informal referral practices prevailed before the fall of 1975S they were caused not by favoritism, but by a surplus of job opportunities which made an orderl, referral procedure unnecessary. However. the testimon, of employee svitness- es indicates otherwise, and the record evidence for the pe- riod at issue, i.e.. December 2, 1975, through August 1976. indicates a wide disparity in referrals. The system did not change; rather, the identity of the favorites changed. Dissi- dents such as Jim Bollinger. who previously enjoNed the favor of Kelley. found themselves out of work. while new favorites enjoyed substantial employment, notwithstanding that there was a shortage of job opportunities during this period. The case of Zeno (Sam) Blattel. Jr.. is an extreme example. Blattel was a Cape Girardeau police officer who testified for the defense in an embezzlement prosecution against KelleS and at least one other union officer in March 1976. The trial resulted in an acquittal. Blattel's name appeared on General Counsel's Exhibit 23 as of March 9, 1976. Nevertheless, Blattel was referred to no less than fourjobs during the period at issue. Blattel worked for Buckley from January 28 to February 10. for Fruin-('olnon from February 23 to about March 10, for Millstone from April 12 to July 21, and for Israel from Jul5 28 to August 20. General Counsel has compiled in its brief an alleged reconstructed referral order which includes the names of some 92 individuals who, it is alleged. were improperly re- ferred to union jobs. General Counsel contends that 15 of them were twice improperly referred to jobs during the pe- riod at issue.i2 General Counsel's witnesses identified five of these (Nelson Fiedler, Floyd (Frog) Penn'. Walter Don Vance, Timothy Vickery. and Brad Wagoner, ias friends of Kelley, a sixth, Terry Bock, as the son of a friend of Kelley's. and a seventh, Larry Daniels, as Kelley's brother-in-law. Jim Bollinger heard Kelley tell Dean Hency to put Elvis (Tins) McCrite, another of the 15, on his (Kelle 's) "personal list." Fiedler, Penny, Vickery, and McCrite testified for the defense in the embezzlement trial. None of the 15, or Blattel. was identified with the dissident movement.3 1 (General Counsel also contends that the fiolr referris of 7Zen Blaitel were improper. I' The Union offered to prove. through the lesiimons of .arloujs iitne.s- es. including some identified as friends of Keller, thil .llcged di. rimilmlicc, Jim Bollinger, Joe Sachse. Owen Innis. and Bill Miller had engiced inl ai, of misconduct The Utnion did nol contend Ihalt the a;lleied dscrilniirlatee were therehb disqualified from job referrals: rathr the he nion 'ia sImpl, attempting io revive its "unclean hands" defense Sitifalllntil. the t nlun did not offer or attempt to dens. through these or .an oliher imrne hes. lie special relationships to Kelles or ito the Union which were ilirlhuted io them bs General Counsel's witnesses Additionally. I cannot help hut note the apparent dearth of mininrilt employees who were referred hb the I non. ( onsiiderable ic elltonl\ i,, adduced concerning individuals Iwho "ere referred, rnd hlilk emploree, were often identified hv race iHowever. with one exccptirn (Sheldln Ilemp- stead. Jr.). the testimons indicated that Ihes iere referred purllum tii i specific request bh the Emplo'er for minorisN emrnplhsccs II furthcr.lilrc of the Employer's ,affirmative actroin progralm The lahborere Ir, ide Is trdli- tionalls one which has attracted black persons n lar i numbeC I lie ouilih- ern half of the Union's jurisdiction (if thi, is I ken it, nmell the Before proceeding with the cases of the individual al- legedl discrtimrinatees. there are two preliminary matters wshich w-arrant consideration. I'he first is the Union's con- tention that it swas denied a fair hearing because of alleged inadequate or improper pleading by General Counsel. The second is the manner in which the individual cases should be handled. in *viesw of the absence of an authentic referral list. The I nion contends that Section 10(h) of the Act pre- cludes the General (Counsel from alleging in the complaint or amending the complaint to allege discriminatees not named in the charge 4 The charge filed on June 2, 1976, alleged that the Union. since on or about October 23, 1975, had discriminatorily refused to refer Jim Bollinger. Bob Jackman. Joe Sachse. and other union members to employ- ers ha;ing exclusiv e hiring hall agreements with the Itnion. I ' I he original complaint which issued on July 29, 1976. alleged that the Union had discriminatorily refused to refer Jim Bollinger. Joe Sachse, Don Hendrix, William %Miller. Dave Newcomer. and "other applicants for em- plo nient whose names are unknown to the Regional Di- rector at ihis time." for employment to Millstone. Tobin. and various other unnamed employers. On August 19. the complaint w-as amended to insert the names of Owen Innis and l eonard Daniels as additional alleged discriminatees. As the e idence eventually developed, the referrals to Mill- stone and Tobin comprised the bulk of those alleged by General Counsel to be discriminatory. Specifically. 39 of the first 74 allegedly improper referrals were made to To- bin and Millstone. After General Counsel had an opportu- nit\ to examine and analyze the various employer and union records which had been subpenaed for production at the hearing. I granted leave to General Counsel to amend the complaint to allege 15 additional discriminatees. and to name the employers referred to earlier as those to whom improper referrals were made. Pursuant to leave granted prior to the commencement of the taking of evidence on October 19, 1976. General Counsel deleted the names of three alleged discrim;natees and added the names of Wil- lard Null and Jack Tomlin. The Union was afforded full 1\x -,lthirnr1m.it ilrintiles. uhich is dmlnistered h, Men, had a hlack populhion lof lile than 15 percent if the total population in 197). al- though the propoirtion had been steiadil declining. presunimahls a least it part because ,If . Iack of jbh opportunities in this sennrural area 1 S D)cp.riitcli of ( tnriirte. B irealu of the Census. ('it ond (,nll )nalr B,,A, (I7') MILS ;Ie t31 u points in his testimons. s.olunteered his lo. opinioin of InlnOirilts urkers. siaiine that It was "hard to get a colored fellow c.to doss.n il .I ditch or up high Thes won't do it. .. That', hait I run llIt,) ilth rillllrllcs ard ill the11 people."'' I recognize that the question of eulll opporltilt v.s nal Il itilted InI this proceeding fleu ever. in siei ,if ihe, foreg liin fts. and the large part plised hs the likes and dlshlikes of Kelles indl M enz In the referril sstem. ii appears that the Board is nlt the ioni agetics cuhtih l shuld he interested In the operations of this Itnion Sct Ilih) prosides II pertinenl ptrt thlt "no complaint shall issue h.ic one .arx infiii lahor pn .itltc ccurring more than six months prior to the filnll of th li .:irte ilth the Boilrd " (,cncral ( ilni esl icer alleged Jacknian as a di,,riminatee in this case ( isequenlil. I find iilthout lmerit the union's argument that the difficults ciiuiin.tecreid ii Io.'.iLa J.llru. Liii foir the purpose of reall for furlher cross- e\artlilllltllTIn \i.s i unlieh o ilusiitrIi.Ce *if .1 venerali difficult, in locUilng unin lle ibers for oh ieferrils, I he iilideni took plate during ('hrlstmsns seek. ushel .laricman ii . ,is dolinl hls holida.s hopping and obh referrals were iunllkcl, Ith t illlo had 1i difflilis in , hiotining the presence of hoth .lencf diirilniiltce, Jlnl 'llltricer ind Jc 5.che for the purpose of re- nI'ei t1. o e iX.1111 1/ritil 629 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and adequate opportunity to meet the allegations of the complaint as amended. It is settled law that a complaint or amended complaint, although filed more than 6 months after the violations al- leged therein, may allege violations not alleged in the charge if they are closely related to the violations named in the charge and occurred within 6 months before the filing of the charge. Consequently, the complaint may allege dis- criminatees or acts of discrimination in addition to those alleged in the charge if they occurred within 6 months be- fore the filing of the charge. See e.g., the decision of the distinguished panel in N.L.R.B. v. Dinion Coil Company, Inc., 201 F.2d 484, 491 (C.A. 2, 1952). Therefore, the pres- ent complaint, which alleges unlawful conduct since De- cember 2, 1975, was properly amended. Moreover, I find that the cutoff date for Section 10(b) purposes is July 6, 1975, and not December 2, 1975, as submitted by General Counsel. As indicated, the present case is not the first case arising out of the Union's alleged discriminatory operations and retaliation against disfa- vored employees. On January 6, 1976, Norman Morill filed a charge in Case 14-CB-3118 alleging that the Union was violating Section 8(b)(1)(A) and (2) of the Act, inter alia, by causing M. K. Lakin and other employers to deny employ- ment to Morill and others. The charge resulted in the com- plaint in Elzinga-Lakin, supra. That charge was sufficiently similar to the present complaint as to put the Union on notice that allegations such as those in the present com- plaint might be thereafter made against it. In essence, the present complaint, like Morill's charge, alleges that the Union discriminatorily caused various employers to deny employment to Morill and others. So long as Elzinga-Lakin was pending final disposition by the Board, the 10(b) pe- riod was tolled. Indeed, Section 10(b) expressly empowers the Board to amend the complaint at any time before an order is issued based thereon. While the present allegations were set forth in a new complaint, rather than by proposed amendements to or consolidation with the pending com- plaints in Fruin-Colnon, Alberici-Fruin-Colnon or Elzinga- Lakin, these are differences without a distinction. The situ- ations are analogous. General Counsel might have sought such consolidation, but was dissuaded from doing so from the action of the Administrative Law Judge (affirmed by the Board), in severing or declining to consolidate the three named cases because of the involvement of Employer-Re- spondents who were not alleged to have engaged in common action. However, the Administrative Law Judge recognized that General Counsel was alleging common action on the part of the Union, which is, of course, the only Respondent in this case. Nevertheless, as General Counsel has chosen to limit its complaint to referrals since December 2, 1975, 1 have not made any findingsas to whether there were improper referrals before that date. The Union further contends that the complaint is inade- quate because it does not specifically allege what persons were improperly referred in preference to each alleged dis- criminatee, on what date, and to which employer. This contention was rejected by the Administrative Law Judge to whom the Union's preheating motion was referred, by me at the outset of the hearing, and again by me in grant- ing General Counsel's motions to amend the complaint. However, I indicated that I would continue to monitor General Counsel's presentation of his case, both during the hearing and in deciding the case, to assure litigation within the scope of the complaint and fairness to the Respondent. I have done so. I find in all of the circumstances, including the Union's deliberate falsification and concealment of material evidence, that the Union was accorded a full and fair hearing. Prior to the hearing, only the Union was in a position to know who was referred, who was not, and why. Prior to the hearing, the Union refused to furnish General Counsel with a copy of its alleged out-of-work list (al- though permitting a Field Examiner to look at the list), and, as matters turned out, that list was a false or falsified one. Moreover, two major employers declined to cooperate with the Regional Office's investigation. In view of the Union's own failure to follow any orderly and recorded referral procedure, General Counsel could not reasonably be expected to allege the specifics demanded by the Union until after the completion of the evidentiary hearing. Gen- eral Counsel has alleged such specifics in its posthearing brief. Fairness to the alleged discriminatees (who are also entitled to a full and fair hearing) and the public interest embodied in the Act necessitate that the Union not be permitted to use its own concealment as a barrier to a full hearing. General Counsel, in his brief, has reconstructed what it considers to be a proper referral order, based on employer records. the credible testimony of employer and employee witnesses, and General Counsel's Exhibit 23 except to the extent that it has been qualified by the credible testimony of General Counsel's witnesses. General Counsel has not included individuals who are not named as discriminatees or were not referred by the Union because there is no way of determining whether they were available to work during the period in question. I agree with General Counsel that such entries should not be given evidentiary significance. General Counsel's Exhibit 23 is a false or falsified docu- ment, and there is no way to determine with probability the full extent that it .was falsified from other, undisclosed rec- ords. Moreover, there was considerable referral activity which is not reflected on General Counsel's Exhibit 23. However, for every wrong there should be a remedy, and the absence of authentic and complete referral records should not preclude remedies where warranted. I do not believe that is is necessary for me to duplicate the work of General Counsel by attempting to reconstruct a nondis- criminatory referral order to the same extent as that of General Counsel. Instead, I shall deal with the allegations implicit in General Counsel's proposed referral order as they relate to the allegations of the complaint. Specifically, I shall take up the case of each alleged discriminatee in the order in which General Counsel contends he should have been referred, and deal with the first alleged related im- proper referral, including any questions of fact or law im- '" Indeed, the Board has only recently held. in a discriminatory hiring hall caser that. where discriminators referrals have been proven. but the discrim- mnatees. as opposed to the favored employees. cannot be identified from the record In the unfair labor practice case, such identification could he left to the compliance stage of the proceeding Internroinul Asso-r alion of Bridge Siruw tural cfid Ornamental Iron Wi'orAerv. L.ocal No 433 (The A vso< iated Gen- rial ( lir ,t-,rs f ( CaltCrnia. Inc )i 228 NlRB 1420. 1440 (1977) 630 LABORERS, LOCAL NO. 282 plicit therein, unless the circumstances of a particular case warrant a variation from this procedure. Thereafter, if war- ranted, I shall review the evidence to determine whether, absent discrimination, there would have been more than one referral for any of the alleged discriminatees during the period in question." D. The Individual Alleged Discriminatees 1. Willard Null Null was a middle-aged man who had been working as a laborer since the late 1950's. He had varied experience, including having worked as an air track driller in blasting work. Null worked on a bridge construction job for AGC contractor Al Johnson for about 3 months, was laid off in July 1975, and thereupon entered his name on the Union's referral list, apparently (as reflected by G.C. Exh. 23) on July 30. As indicated, the Union, arbitrarily and without notice, cut his name off the referral list. Null received no further referrals. He testified that he inquired several times about work, but that Kelley did not respond to his calls and Hency told him there was not much. In December 1975, Null rejoined the Union in hope that this might help and, at this time, Hency again entered his name on the list (as of December 5). Null signed a petition for the dissident group and attend- ed some of its meetings. There is no direct evidence that the Union knew of Null's activity. However, Null lived with Jim Harper's mother, and referred to Harper as his stepson. The Union knew of this relationship. Harper was active in the dissident movement, he was present at the New Madrid incident on October 24, and he testified for the Government in the criminal trial in early February 1976 which resulted in the conviction of Kelley and Menz. Null was not on the Union's "enemies' list," but he was no favorite either. Null testified that, although Mrs. Harper was home nearly all of the time, he received no calls from the Union, with the possible exception of one call which Mrs. Harper received about the time of the commencement of this hearing. Null testified that the caller, who did not identify himself, asked if Null was working and Mrs. Har- per answered that he was working for himself. There are no entries on General Counsel's Exhibit 23 to indicate that Null was called. Paul Menz testified that he called Null several times, and was told by Mrs. Harper that he was not home. However, he changed his testimony, say- ing that he called only once, in July or August 1976, with- out identifying himself and was told by Mrs. Harper that Null was building a house. Fred Kelley testified that Null told him that he did not want to work because he had a compensation case pending. However, Kelley was unable to explain why, if this were true, that Null's name was not scratched off the list. or an entry made, as was done with other applicants who allegedly refused work. The probable '(General ( ounsel contends in his brief that each alleged dlscriminalee was entitled to the referral set forth opposite his name on the reconstriucted referral order. Hlowever. in the text of the brief (eneral C ounsel nmdild- ualls refers to each alleged discrilminatee as being entitled to the next refer ral. This discrepancy is not explalined. I have proceeded on the assulmption that the reconstructed referral order conta;ins the speific allegations Iof General Counsel reason is that, at the time the Union turned over General Counsel's Exhibit 23 to General Counsel, it did not antici- pate that Null would be named as a discriminatee. I credit Null, and find that the Union never called him for a job referral. General Counsel contends that the Union should have referred Null to Potasnick on December 3, 1975, instead of Charles E. Pobst. whose name does not appear on General Counsel's Exhibit 23. There is no evidence that Pobst ever registered on the list, and consequently Null, who regis- tered in July, was entitled to preference in referral. The Union referred Pobst to Potasnick's Marble Hill job in re- sponse to Potasnick's request for a driller; i.e., the very experience which Null had. The Union told Potasnick's project manager that it did not have a driller, but sent Pobst who, like Null, had drilling experience. This oc- curred during a period of time when Null was actively and persistently inquiring about job referrals. I find that the Union arbitrarily failed and refused to refer Null for em- ployment, and thereby violated Section 8(b)(1)(A) and (2) of the Act. International Union of Operating Engineers Hoisting and Portable Local No. 513, AFL-CIO (S. J. Groves and Sons Co.), 199 NLRB 921 (1972). Pobst worked for Potasnick from December 3 to Decem- ber 12, when the job was shut down. Had Null been prop- erly referred, the inference is warranted that he would have been reregistered on the out-of-work list and been avail- able for further referrals after December 12, 1975. 2. William Miller Miller began working as a laborer in 1974. He initially obtained work through a friend of Kelley's, and, thereafter until September 1975, obtained referral slips from Kelley without ever registering on the out-of-work list. Miller worked at a variety of jobs, including working at heights (bridge railing). Miller's activities in the dissident move- ment, and Kelley's animus and discriminatory treatment toward Miller, are documented in Fruin-Colnon, supra. Miller registered on the out-of-work list on September 8, shortly after the Union caused his termination from Fruin- Colnon because of his dissident activities. Hency told Miller that there were 6-1/2 pages of names on the list (on G.C. Exh. 23. Miller's name appears near the top of the list). Miller told Hency that there could not be many names because Jack Kitchen, Jack Lancaster, and Roy Griffith had only recently gone from one job to another. At this point, Hency became flustered. Miller continued to go to the union hall to pay his dues. In January or February, Hency told him that he was 5-1/2 pages down. In April or May, Hency told him that his name had been put to the end of the list because he had refused work. He denied the accusation, whereupon Hency replied, "that's what they told me." About a month later, Miller went to the hall with Owen Innis. Hency said that Kelley had made a new list and that Miller was the first on it. However, he told Innis that he (Innis) had refused a job and was put to the bottom of the list. Innis denied the accusation and Hency replied that "they had it down." Hency did not deny the testimony of Miller and Innis concerning these conversations. I credit their testimony. 631 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Miller testified that he received no calls from the Union until September 1976, when he was away in Pennsylvania in connection with his work of raising or training race hors- es. Miller had a large family, and his wife was normally home. He categorically denied ever refusing a job before that time. Miller's name appears on General Counsel's Exhibit 23 next to the date of September 8, 1975 (and properly so), and again at March 3, 1976. Next to the September 8 entry are the notations "refused job" and "called associates on St. Francis Hospital 3/3." Kelley and Hency testified that they called Miller and Innis on that date for referral to such ajob (Associated Contractors on the St. Francis Med- ical Center project in Cape Girardeau), but both refused and were placed at the bottom of the list.' The Union also presented the testimony of Larry Burford and Floyd (Frog) Penny, who were allegedly in the union hall when the calls were made. Burford was a member of the Union's execu- tive board and at the time was foreman of laborers for McCarthy at the St. Francis project. Penny was a laborer at that time. Burford testified that Hency referred to a yel- low pad when he called Miller and Innis (as well as Joe Sachse, Leon Stricklin, and Bob Jackman). Penny, after a long and thoughtful pause, testified that he saw Miller's name on a white sheet which looked like General Counsel's Exhibit 23. Penny, who ostensibly listened in on Hency's conversation, testified that it sounded like Miller's wife was on the line, because Hency said that he had a job for "Bill Miller." Hency testified that he personally spoke to Miller. During his testimony, Burford was demonstrably rational- izing and thoroughly confused as to what happened (or what he should say happened). In fact, there were no refer- rals for Associated Contractors. McCarthy was the general contractor and employed the laborers on the St. Francis project. McCarthy's records indicate that there were no re- ferrals on or about March 3, the nearest being Earl Milam, who began work on or about April 6, 1976. Kelley admit- ted that Associated was a pipefitting subcontractor, that it had no contract with the Union, and that he had never referred any employees to Associated. Burford admitted that on those rare occasions when Associated needed a laborer, e.g., for short periods of cleanup work, it would borrow them from McCarthy. The clue to the Union's fah- brication lies in Kelley's testimony that Associated also ob- tained employees from Nip Kelley Construction Company, owned by Kelley's brother. Kelley invoked Associated and made appropriate insertions into the referral records of Miller, Innis, and Joe Sachse, all discriminatees in the ear- lier cases, in the hope or expectation that, if necessary, Nip Kelley might provide an appropriate cover story. In fact. Kelley's hearsay testimony was uncorroborated by any em- ployer witness. Kelley testified that Burford had told him that one "Slim Fair" had said that Associated needed em- ployees in the support force. Even Burford did not corrob- orate this story. Kelley testified, pursuant to notations on General Coun- sel's Exhibit 23 opposite the March 3 entry, that he called IS Some of the evidence with respect to the Innis call will be discussed in connection with his case, infra. Miller on April 12, 1976. for referral to Millstone and on August 10, 1976, for Dorada Industries, but there was no answer." The latter employer was otherwise unidentified by testimony or records. If Kelley called Miller on April 12. then it is difficult to see why Kelley did not then call Innis, whose name appeared immediately after Miller on General Counsel's Exhibit 23. As indicated, both were al- legedly placed at the bottom of the list on March 3. How- ever, Kelley testified that he did not call Innis again until June 8 (as shown on G.C. Exh. 23). I do not credit the testimony of Kelley. I credit Miller. and I find that he was not called for any referrals from September 1975 to Sep- tember 1976. Moreover, I question the authenticity or sin- cerity of the calls made in September. after this hearing opened. Those calls fall into a pattern which recurred in the cases of the dissidents. When the Union learned of some reason why they could not work, they were called, or the Union seized upon the reason as an excuse not to refer them. Otherwise, they did not hear from the Union. Miller stood high on the referral list (15th on G.C. Exh. 23) and should have been called before March 3, although the Union does not contend that he was called before that date. General Counsel contends that Miller should have been referred to Buckley (Southeast Missouri Hospital in Cape Girardeau) on January 28, 1976, instead of Zeno Blattel, whose success in obtaining work has previously been discussed. I agree. Buckley Job Superintendent Wood testified that he did not request any men by name or skills, and that Blattel and Sheldon Hempstead, who also began work on January 28, did common labor work. I find that the Union deliberately failed and refused to refer Miller because of his role in the dissident movement, and thereby violated the Act. It may be inferred that, if Miller had been properly referred to Buckley, he would have worked until the date Blattel was laid off (February 10) and would thereafter have registered on the out-of-work list. 3. Bob Sachse and Mike Sachse Bob and Mike Sachse were brothers of Joe Sachse, who was terminated by Fruin-Colnon at the behest of the Union on September 16, 1975, because of his dissident ac- tivities. They began working as laborers in 1974, having obtained their first referrals from Kelley through their brother Joe. Kelley told Bob that he would get him a job because he owed Joe some favors. Bob's last job was for Potasnick, and Mike's for McCarthy. Both were laid off in mid-September. They testified that they thereupon went to the union hall, where Kelley told Hency to put their names on the list. It is undisputed that, thereafter, neither Mike nor Bob was called for a referral. In November 1975, Po- tasnick, through Job Steward Bill Dunivan, offered to re- call Bob to work. However, he had to turn down the offer because he was laid up with a fractured back incurred in a hunting accident. Mike testified that, in January or Febru- ary 1976, he checked with Hency, who told him that Bob's name was on the list, but not his. Hency did not deny this 19 Miller moved in June or July 1976 and changed his telephone number. fHowever. his new number was listed, and the Union did not contend that it had any difficult, in calling at his new home in September. Therefore. it is evident that the Union knew or obtained Miller's new number 632 LABORERS, LOCAL. NO. 282 conversation except in an oblique fashion. testifying that he did not recall seeing Mike come in for a job or referral. The names of Mike and Bob Sachse do not appear on General Counsel's Exhibit 23. Kelley was equivocal about the absence of their names. He testified that he did not know why their names were not on the list. and that he had not seen them come into the union hall "since December 2. 1975," but admitted on cross-examination that he "imag- ine[d]" that the Union had a list where Mike and Bob signed on the same day. Bob and Mike Sachse both testi- fied that they never registered on the out-of-work list prior to their respective layoffs from Potasnick and McCarthy, and the Union offered no evidence to show that thev had done so, let alone on the same day. I credit Mike and Bob Sachse, and find that Kelley avoided putting their names on the list and avoided calling them for referrals because Joe Sachse had become his adversary, and Kelley felt that he no longer owed the Sachse family any favors. (As found in Fruin-Colnon. supra, Kelley learned in August 1975 that Joe Sachse was active in the dissident movement. and sought his layoff for that reason.) I agree with General Counsel that Mike and Bob Sachse should be deemed as having registered on the out-of-work list not later than Sep- tember 30, 1975. General Counsel contends that Mike Sachse should have been referred to Buckley on January 28, 1976, instead of Sheldon Hempstead, and Bob Sachse to Fruin-Colnon on February 23, 1976, instead of Edward Allen Adams. Hempstead's name does not appear on General Counsel's Exhibit 23 until August 26, 1976, and Adams' name does not appear at all. Hempstead was not requested pursuant to any affirmative action program. (Fortunately for Hemp- stead, the two jobs to which he was referred were located in the northern portion of the Union's jurisdiction, which is administered by Kelley.) Fruin-Colnon, like Buckley, did not request referrals by name or skill. I find that the Union discriminatorily failed and refused to refer Bob and Mike Sachse. Both jobs lasted about 2 weeks: hence it does not appear that any substantial prejudice would result if Mike were deemed as being entitled to a referral before Bob. rather than vice versa. 4. Ricky Pobst, Don Bollinger. and Norman Morill Pobst, Bollinger. and Morill were the three unsuccessful alleged discriminatees in Elzinga-Lakin, supra. Upon being laid off, they promptly registered on the out-of-work list, and their names appear on General Counsel's Exhibit 23 as of October 6, 1975, in the order indicated above. Morill filed his unfair labor practice charge on January 6. 1976. complaint issued on January 12, and the case was heard on April 2, 1976. None of the three were union members, and they did not participate in the dissident movement. Pobst was engaged to Morill's daughter (they married on August 14, 1976). He did not leave a telephone number with Hency; however, the Union knew that he could be reached either at his father's home, where he lived, or by leaving a message at Morill's home. Pobst's mother was normally home. Morill's wife gave birth to a child on No- vember 2, 1975, she returned to work in earls 1976, and thereafter there was normally a babysitter in the house from 7 a.m. to 5 p.m.. until about October 1, 1976, when Mrs. Morill ceased working. Morill worked as a self-em- plosed carpenter after his layoff. In January 1976. Pobst began working as a cutter-sprayer for an apparel shop. However, both testified that they never told the Union that thes were no longer interested in referrals, and both further testified that they did not receive any calls or messages from the Union after their layoff. The first three columns opposite Pobst's r.ame on Gener- al Counsel's Exhibit 23 (headed respectively "Telephone Number," "Contractor Last Worked For" and "Qualifica- tions" ). contain respectively the notations, "called no an- swer Aug. 30. '76." "called no answer" and "working." Op- posite Morill's name was the entry "called no answer 5- 13." Paul Menz testified that he made the first notation opposite Pobst's name, and that he called again and was told by Pobst's mother that he was working in a factory. This second call allegedly occurred after General Counsel's Exhibit 23 had been turned over to General Counsel pur- suant to subpena at the second day of the hearing on Au- gust 31. Menz testified that he also made the entry opposite Morill's name, and that on separate occasions a sitter and Mrs. Morill said that Morill was working as a carpenter. Fred Kelley testified that he neither knew nor called Pobst or Morill, and Dean Hency testified that the entries were not his, which left unexplained the second and third entries opposite Pobst's name. Menz failed to explain why no no- tation was made that Morill was working, or why he was not therefore crossed off the list, or why Morill was called on May 13, and Pobst on August 30, although Pobst was ahead of Morill on the list. No evidence was presented as to what if any jobs were involved in these alleged referrals. Morill impressed me as a candid witness. He answered questions forthrightly even when the answers were obvious- ly adverse to his interests. In contrast, I have ample reasons to question the credibility of Menz, not the least of which is his action, together with Kelley and Hency, in falsifying and concealing material evidence. I credit Morill and Pobst, and find that the Union did not call them at all during the period in question and that calls on or after August 30. if they were made at all, were a sham and effort to obfuscate the Union's failure to call them when they were entitled to referrals. The Union's attitude and policy toward employees who made unwanted complaints was documented in the case of Tom Lukefahr in Fruin-Colnon, 227 NLRB at 67. 1 find that the Union arbitrarily failed and refused to call Morill and Pobst for referrals and there- by violated Section 8(b)( )(A) and (2) of the Act. Don Bollinger did not testify in this case, and General Counsel has not explained his failure to do so. General Counsel's Exhibit 23 contains the notations "called no an- swer Aug. 30, '76" and "called no answer 5-13." When called as a witness for General Counsel. Dean Hency testi- fied that he could not contact Bollinger. When called as a witness by the Union, he testified that he could not recall having called him. Kelley testified that he did not know Bollinger and never called him. Menz testified that he called several times and was told by Bollinger's father that he was working. (In light of this testimony, the absence of a telephone number for Bollinger on G.C. Exh. 23 is irrele- vant.) Menz testified that he called Bollinger for referral to 633 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Blount and probably Penzel. However, the Union did not refer any employees to Blount during the period in ques- tion. Menz also testified that he learned through Nip Kel- ley that Bollinger was working as a Teamsters truckdriver. Menz further testified that employees who were working at another trade were taken off the list, but he failed to ex- plain why Bollinger's name was not crossed off or why there was no notation on General Counsel's Exhibit 23 that he was working. I do not credit Menz. I find that, as with Morill and Pobst, the Union discriminatorily failed and refused to call Bollinger for referrals. Testimony by an alleged discriminatee is not an indis- pensable prerequisite to a finding of a violation if other direct or circumstantial evidence demonstrates such a vio- lation. Satra Belarus, Inc., 226 NLRB 744, fn. 2 (1976), citing New Madrid Manufacturing Company. a Corporation, and Harold Jones, an Individual, d b/a Jones Manufacturing Company, 104 NLRB 117, 119-120 (1953), enfd. as mod- ifed 215 F.2d 908 (C.A. 8, 1954); Bechtel Power Corpora- tion, 223 NLRB 925 (1976). See also the case of Henry Durham in Fruin-Colnon, 227 NLRB at 65. In the present case, the elements of a violation have been established, with the possible exception of Bollinger's availability for work. Primafacie, at least, that has been established by the Union's admission on the face of General Counsel's Ex- hibit 23, i.e., that Bollinger registered on October 6, 1975, and that there is nothing to indicate that he was working at another trade and no longer wished to be referred by the Union. However, my finding in this regard is subject to the right of the Union to show in the compliance stage of this case that Bollinger was in fact unavailable for referral dur- ing the period in question. General Counsel contends that Pobst, Bollinger, and Morill should have been referred to Fruin-Colnon's P & G project instead of Zeno Blattel on February 23, Dave M. Lutes on March 1, and W. E. Griffin on March 4, 1976. 1 agree. Blattel had been referred to Buckley in January 1976 and Lutes in December 1975. Lutes' name appears on Gen- eral Counsel's Exhibit 23 on March 10, 1976 (apparently after leaving Fruin-Colnon), Blattel on March 9, and Grif- fin does not appear at all on General Counsel's Exhibit 23. Griffin worked for Fruin-Colnon for about 2 weeks. 5. Joe Sachse Joe Sachse became a union member and began working as a laborer in 1963. He had varied experience and Fred Kelley conceded that he was a good worker. On September 16, 1975, the Union caused Fruin-Colnon to discharge Sachse because of his activities on behalf of the dissident movement.20 The next day, Fruin-Colnon rehired Sachse as 'o I do not credit Sachse's testimony concerning an alleged telephone conversation in October 1975. in which Kelley allegedly threatened him with violence. Sachse did not refer toe any such conversation in his investiga- tory affidavit of November 4. 1975. ind there is no indication that he testl- fied about such a conversation in Fruin ('olnmn. although it is inconceivable that he would have overlooked such a matter. foweser. I doi not accept the Union's argument that the alleged discriminatees, and in particular acutse dissidents such as Sachse. Innis. and Jim 1Bollinger should he discredited because the) are allegedly engaged in a plot to take over the Union This argument assumes that the Union is the private domain of Kelley and a cement finisher through the cement finishers union, and he continued to work for Fruin-Colnon until October 22, 1975. Sachse's name appears on General Counsel's Exhibit 23 at October 8 and again at December 9. Sachse testified that he registered in December, but not on October 8, be- cause he was working for Fruin-Colnon at that time. The Union did not present any testimony that Sachse actually registered on the list in October. I credit Sachse's explana- tion, and find that his name should have first appeared on the out-of-work list as of December 9, 1975. Sachse's name is scratched out at the October 8 entry. Opposite that entry are the notations "refused job" and "called 3-3 for associates." Opposite the December 9 entry are the notations "working for Q. T. Masonry," "called 7- 28-76 Israel could not locate," and "called no answer 5-5- 76." Sachse testified that he has not worked for Q. T. Ma- sonry since 1966. Kelley and Menz testified that they did not call Sachse. but Kelley testified that he heard Hency call him. Hency, ever anxious to remain uninvolved, testi- fied that he did not call Sachse, but was probably told by Kelley to make a notation. As heretofore found, there was no job for Associated Contractors. The Union failed to explain why, if Sachse refused a job, he was not put to the bottom of the list, as were Miller and Innis, or why Pobst, Morill, and Don Bollinger, whose names appeared on Gen- eral Counsel's Exhibit 23 ahead of Sachse, were not called before him. Sachse testified that he got only one call from the Union, and that call was taken by his wife. Sachse's wife, Jeanetta, testified about the call. She testified that one afternoon in or about August 1976, she received a telephone call from Hency at Ervin's Auto Body, where she worked as a book- keeper. Hency told her that he had a job for Joe with Is- rael. At the time, the Union was referring employees to Israel. Mrs. Sachse asked for a little time to locate Joe. Hency said he would give her one-half to one hour, and told her to call back by 3 p.m. However, Mrs. Sachse testi- fied that she did not locate Joe until after 5 p.m. She testi- fied that Hency called again between 3 and 3:30 p.m., and asked if she had located Joe. She told him she had not, and that she thought he was out of town. Mrs. Sachse testified that Hency said that Joe would keep his place on the list, and would probably get another call in the next few days or weeks. The ever-present Larry Burford testified that, on two oc- casions during the summer, he heard Hency trying to reach Joe Sachse. Burford is Mrs. Sachse's brother. Floyd Penny also claimed to be present when such a call was made. Menz. Ihe dissidents have the right to seek ouster of the Union's present leadership. as well as the right to seek union office themselves I recognize that some dissidents may wish to obtain union office. but by the same token I also recognize that KelleN, Menz, and Hency are out to keep their present positions. All this demonstrates that the dissidents, like Kellev. Menz, and Hetnc. are not disinterested witnesses. and consequently. their testimony should be evaluated with this factor in mind I also do not attach great significance to the fact that some active dissidents obtained job referrals during the period in question One of these Bobbhhy Jackman, had already been discriminatorily deprived of employment. It is possible that the refer- rals reflected a nmondiscriminatory motivation It is also possible that the Union was following a divide-and-conquer strategy, or could not come up with a sufficient pretext for not referring some individuals (Consequently, I hase attached the greatest significance to the evidence as it immediately involves each individual discriminatee 634 LABORERS. LOCAL NO. 282 Burford was unable to explain why he was able to spend so much time at the union hall while he was employed as general foreman for McCarthy. Burford testified that he left the union hall after Hency spoke to Mrs. Sachse and on the way saw Joe Sachse inside Ervin's, which was about one-half block from the union hall. Burford, who wears glasses, testified that at the time he was driving his car on a four-lane highway, on the side farthest from Ervin's, and was about 200 feet from Ervin's. I do not credit Burford. I find it more likely that, if the Union were really interested in referring Sachse to a job, that if Burford saw his brother- in-law he would have stopped and told him that there was a job for him. There was no need for urgency. Israel's rec- ords indicate that numerous laborers were referred from the Union during the summer, and that they reported to work on various dates; i.e., July 21 and 28 and August 2, 3, 4, and 13. If the date of July 28 on General Counsel's Exhibit 23 is correct then most of them were called before Sachse. I find it probable that Kelley learned through Bur- ford that Sachse was away and could not be reached on short notice, and used the opportunity to have Hency make a call to Mrs. Sachse, setting an impossible deadline. secure in the knowledge that the call would not result in a referral. I find that the Union never called Sachse with a bona fide offer of a job referral, and that its failure to do so was motivated by Sachse's activity in the dissident movement. However, because of my finding that he should he on the list as of December 9, 1975, 1 will defer consideration of a proper referral until the appropriate chronological point. 6. Owen Innis Owen Innis began working as a laborer in 1968 or 1969 and had varied experience, including working as a fore- man. On October 10, 1975, Kelley caused Fruin-Colnon to terminate Innis because of his activities in the dissident movement. Kelley told Jim Bollinger that Innis and Jim Schoen, also discriminatorily terminated the same date, would "never work out of the hall again." Fruin-Colnon,. 227 NLRB at 66. On Monday. October 13, Innis and Schoen registered on the out-of-work list, and their names appear on General Counsel's Exhibit 23 as of that date, Innis' name being before Schoen. Schoen was referred to a job with Potasnick, and worked as a driller from February 27 until May 11, 1976, when he was laid off. Fred Kelley fired at Innis' truck on October 24, 1975. when Innis, Joe Sachse, and Dallas Dover were soliciting signatures for the dissident movement, and the three employees subsequently testified about the matter in the unfair labor practice and criminal cases. The October 13 entry on General Counsel's Exhibit 23 contains the notations "refused job" and "called Assoc. S. F. Hosp. 3-3." Innis' name next appears at the date of March 3, 1976, immediately following Bill Miller, because, according to Kelley, both refused referrals on that date and were placed at the bottom of the list. In fact, as heretofore found, there were no jobs for referral to Associated Con- tractors. Opposite the March 3 entry are notations "called 6-8 Tobin no answer" and "called 8 10-76 no answer." Innis testified that his wife was normally home during the day. He testified that he received three calls from the Union. The first was from Hency, late in the afternoon of March 3. 1976 .2' According to Innis, Hency told him there was a job with Associated at the St. Francis project. Innis said he was busy and would call back. He called back a few minutes later, and told Kelley that he would have to make a call. Innis testified that he could not understand why Kelley was offering him a job, and suspected it was not real. His suspicion was correct. According to Innis, he at- tempted to speak to the Board's Field Examiner in St. Louis, but there was no answer (Region 14 is normally open from 8 a.m. to 4:30 p.m., and there is no arrangement for receiving phone calls after closing time). He testified that he again called the union hall, but there was no an- swer. (The union hall closes at 5 p.m.) Innis claimed that he called Region 14 because of the "ruling" that he would be reinstated at Fruin-Colnon. However, the Administrative Law Judge's Decision issued on June 3, 1976. Kelley testi- fied that Innis said he wanted to talk to Bill Miller, and that Kelley told Innis to call him (Kelley) at home. Innis should have called Kelley at home. If a bona fide referral were involved, I would agree with the Union that Innis' evasions could reasonably be interpreted as a refusal of employment. However, the offer was bogus, and Innis sus- pected as much. Consequently, his response becomes irrel- evant. and the Union improperly placed his name on the bottom of the list. Innis testified that he received the second call on or about September 10, 1976. His wife answered the phone, and Hency said he had a 3- to 4-day job and needed an answer in half an hour. She called back and said she could not reach Innis. According to Innis, about 2 weeks later, Hlency called again, told him that he had one or half a day's work. but then he told him to forget it, because he would get someone else, although Innis indicated that he would take the job. Hency testified that he did not call Innis, but only placed calls for Kelley. Kelley testified that he called Innis on June 8 and August 10, but there was no answer on either occasion. Whether Kelley made a sincere effort to contact Innis is questionable. Kelley's bogus offer in March 1976 suggests otherwise. The Union made nu- merous referrals on or about both June 8 and August 10, and it is difficult to believe that Kelley could not reach Innis for at least one of those jobs. There was no apparent urgency. On June 8, Tobin requested 10 laborers, and they variously reported to work on June 8, 9, and 10. I find that the Union avoided offering any referrals to Innis prior to June 8, 1976, and probably thereafter, because of Kelley's animus toward him, and thereby violated Section 8(bXI)(A) and (2) of the Act. General Counsel contends that Joe Sachse should have been referred to Tobin on March 11, 1976, instead of Pen- nv Tucker, and that Owen Innis should have been referred to Tobin on March 22, 1976, instead of Leo J. Berghoff. Both were referred by the Union. Tucker's name does not appear on General Counsel's Exhibit 23 until March II, the day he was referred, and Berghoff's name does not appear at all. Berghoff was classified by Tobin as a com- H1 oth Innir and I red Kelles testified Ihat the call took place In late afternoon (Clnsequently. I do not credit the testimony of Floyd Penns. 'ho Illeged]s overheard the con ersation. thai it took place In the morning. 635 DECISIONS OF NATIONAL LABOR RELAT IONS BOARD mon laborer, receiving the lowest rate of laborers' pay, and Tucker was in the next classification, receiving an addition- al 15 cents per hour. Neither was identified as having been requested by name or qualification. Substituting Innis for Sachse, in accordance with proper positions on the referral list, I find that Innis should have been referred instead of Tucker. Tucker worked for Tobin until at least earl) Sep- tember 1976, as did Berghoff. 7. Don Hendrix Hendrix began working as a laborer in October 1974. lHe got his first referral from Menz through Bob Jackman. Hendrix had no special qualifications. In 1975. he worked for Corrigan and theh Alberici-Fruin-Colnon at the New Madrid project until he was laid off on or about August 20. He asked Dean Hency to put his name on the list, and his name appears on the yellow sheet attachments of General Counsel's Exhibit 23 at the date of August 25, 1975. About 2 weeks later, he was referred to a job with Triangle Insula- tion. There is a notation at this entry "called no answer Aug 26 for Lakin Const Co." However, this notation would probably refer to 1975, when the Lakin job was in progress. Hendrix testified that he worked for Triangle for about 2 weeks, again went on the list, was referred to Israel in early October. was laid off on October 14. and again registered for the list. His name appears on General Counsel's Ex- hibit 23 as of October 15, 1975. At this entry are the nota- tions "called 6 8 Tobin. Did not know where he was," "working Israel Bros" and "called no answer Aug 6- 1976." Hendrix' next referral was to Penzel on September 2, 1976, after this hearing commenced. Hendrix testified that he signed a petition for the dissi- dent movement, calling for a new election, at his home in late October 1975, and attended five or six meetings of the dissident movement. His name does not appear on the peti- tions which were introduced in evidence by General Coun- sel. He was not a leader in the movement, he did not testify in any of the legal proceedings against the Union, and there is no direct evidence that the Union knew of his ac- tivities in the dissident movement. Other members who signed the petitions are alleged by General Counsel as hav- ing been favored in job referrals: e.g., Russell Crader, Paul Pender, and Noble Milam. In sum, there is a paucity of evidence that Kelley or Menz bore any particular animus toward Hendrix. Dean Hency testified that he believed he called Hendrix, talked to some woman who said she did not know where he was, and did not leave a message. Paul Menz testified that Hency called Hendrix, but that he (Menz) probably made some earlier calls. Kelley testified that he did not know Hendrix and never called him. Hendrix testified that he did not receive any calls or messages from the Union between October 15, 1975, and September 2, 1976. During at least a substantial part of this time, Hendrix was working as a school janitor. He testified (in October 1976) that his wife had been working for 3 or 4 months. He had a sitter for his child, but she normally sat at her home. Consequently, there was usually no one home when Hendrix was working. He gave the Union only his home telephone number. Hen- drix lived in Bell City, Missouri, and there is no evidence that he was particularly well known to the union function- aries. Hendrix was named as a discriminatee in the original complaint. The notations opposite his name on General Counsel's Exhibit 23, or at least some of them, appear to have been after the fact and in anticipation of this litiga- tion. However, it does not automatically follow from this fact that there is not a grain of truth in them. In light of all the circumstances, including the absence of animus and the apparent difficulty which the Union might have encoun- tered in contacting Hendrix, I am not persuaded that Gen- eral Counsel has shown by a preponderance of the evi- dence that the Union intentionally failed to call Hendrix or did not call him in June and August 1976. General Counsel contends that Hendrix should have been called for referral to Tobin on April 5, 1976, instead of Ciary Wilde. I do not believe that a violation of the Act can be predicated simply upon a deviation of about 2 months from what General Counsel considers to be a prop- er referral order. Therefore, I am recommending that the allegation of the complaint with respect to Hendrix be dis- missed. 8. Dave Newcomer Newcomer began working as a laborer in 1970. He was laid off from a job with Israel in mid-October 1975. He registered on the out-of-work list and his name appears on General Counsel's Exhibit 23 as of October 15, 1975. New- comer testified that he signed a petition for the dissident movement in 1976 and attended some of it, meetings. How- ever, his signature appears on one of the petitions which Jim Bollinger identified as having been distributed in October 1975. Newcomer was not a principal figure in the dissident movement, he did not testify against the Union in any of the various proceedings, and there is no direct evidence that the Union knew of his activities in the dissident movement. As with Hendrix. the evidence is insufficient to show union animus against him. Next to the October 15 entry on General Counsel's Ex- hibit 23 is a notation that he did not go to the Blount job. and another "sickness, not able to work." Newcomer's name is crossed off and then reentered on General Coun- sel's Exhibit 23. Newcomer testified that he went to the union hall several times, but Hency told him nothing was going on. In the spring of 1976, Newcomer suffered from eye trouble. He went into the hospital on June 9, and his right eye was removed on June I1. Newcomer testified that, about 2 days before going into the hospital. he told Dean Hency he was having eye trouble (without mention- ing hospitalization), and about a week after his operation, he went to the union hall wearing an eye patch. Newcomer initially testified that he did not talk about being able to work, but subsequently testified that he told Hency that he would not be able to work for about 2 or 3 weeks. About July I, Newcomer took a full-time day job with Stanley Bin and Conveyor Company. Previously, he had done some electrical work. Newcomer testified that, in late summer or early fall, he received a job offer from the Union (his wife took the call) but he turned it down, although he was phys- ically able to work. Dean Hency testified that he called Newcomer for a job, 636 I.ABORERS. 1.O(CAL NO. 282 that his wife, who answered the phone. said she thought he would accept. hut that she later called back and said that he could not work because of the ese operation. (Hency testified that at this point he restored Newcomer's name on the list.) Fred Kelley testified that he learned that New- comer was going into the hospital when Mrs. Newcomer called about insurance forms. Hlencv testified that on an- other occasion, he called to offer Newcomrer a referral to Blount Brothers. Mrs. Newcomer answered the phone. called back, and told Hency that Dave was helping some- one in Illinois and could not take the job. Hencv testified about these conversations when he was called as General Counsel's first witness General Counsel did not call Mrs. Newcomer as a witness. nor was her absence explained. I credit Hency concerning his conversations with Mrs. New- comer. In view of his conversations which took place he- fore the eye operation. I am not persuaded that llencs made the offer at a time when the Union knew that New- comer could not accept a job. I am also not persuaded that the offer was a bogus one, as there was considerable refer- ral activity in late May and early June. Nor does the evi- dence show that the later offer was not made in good faith. Paul Menz testified that Blount did not request any refer- rals in 1976, but that its insulation contractor did so. and that this was the job for which Newcomer was called in August or September. General Counsel did not show that no such referrals were made, as he did in the case of Associ- ated Contractors. Unlike the situation with Joe Sachse and Owen Innis, the Union did not present Newcomer with an unreasonably short deadline for a response. I find that the Union made good-faith offers of job referrals to Newcom- er in or about early June and in or about August 1976, and did not at any time intentionally fail or refuse to call New- comer for referrals. General Counsel contends that New- comer should have been called for work with Millstone on April 7. As with Hendrix. I find that this assertion is an insufficient basis on which to predicate a finding that the Union failed and refused to refer Newcomer for "unfair, arbitrary, irrelevant and invidious reasons." 9. Leonard Daniels Daniels began working as a laborer in 1970. but some- times worked outside the trade. He worked for Alberici- Fruin-Colnon from October 21. 1974. until he was laid off on December 16. 1975. He had varied experience. includ- ing working as a foreman of a cleanup crew on the Alberici project. He registered on the out-of-work list. and his name appears on General Counsel's Exhibit 23 as of December 15, 1975. Thereafter he did not maintain his union mem- bership. Daniels signed a dissident petition in October 1975. and attended three or four dissident group meetings. However, there is no direct evidence that the Union knew of his activity in the dissident movement. The December 15 entry in General Counsel's Exhibit 23 contains notations indicating that Daniels was called on June 8 and May 5. with "no answer." Daniels testified that he remained at home for 3 to 4 months, then gave up wait- ing and took other employment. and that thereafter there normally was no one home to take calls during the day. Daniels did not give the Union an alternative phone num- her until October 1976. Dean Hency testified that Daniels was not called before Mai 5. 1976. Kelley testified that he did not know Daniels and never called him. Menz, whose testimony was crucial in this matter, was inconsistent and vague. He testified that he called "quite a few times." but later testified that he called once or twice. Menz again fell back on the stors that the call was for the insulating con- tractor on the Blount job. although this allegedly occurred some 3 or 4 months before Newcomer was called for that job. Menz fell back on the unidentified insulating contrac- tor a third time. for yet another date, in the case of William Penrose. In the case of Newcomer, there was an actual offer and refusal of referral. In the case of Daniels. I am not inclined to accept Menz' self-serving, contradictory, and uncorroborated testimony. absent specific evidence as to the identits of the subcontractor, who was ultimately referred. and when. Menz testified that a sitter told him that D)aniels was not home, later told him that he was working at a school, and on a third occasion said he was driving a truck. Menz also testified that he thought Daniels told him that he was driving a truck. However, Menz ad- mitted that this was not the reason why he was not consid- ered for referrals. Rather. Menz asserted, that he "just didn't have any job to put him on." This was not true. There were jobs to which Daniels could have been referred, e.g., the Tobin jobs, which were serviced by Menz. More- over. Menz' testimony indicates that he was in touch with Daniels, knew or could easilv learn of his whereabouts, and could have left messages for him if he so desired. Menz testified that these conversations took place in April 1976: i.e.. when the Union was referring applicants to Tobin and Millstone. Daniels was not a victim of direct union animus. Rather, he was simply brushed aside in favor of employees who had the ear or favor of Kellev or Menz. Such obverse discrimination is also violative of the Act. See Fruin-Col- non. 227 NLRB at 65. 66 (case of Henry Durham). General Counsel contends that Daniels should have been referred to Millstone on April 7. instead of Brad Wagoner, a close friend of Kelley's. This brings me back to Joe Sachse, the discriminatee who registered for work shortly before Daniels. As heretofore indicated. the Union improperly referred Penns' Tucker and Leo Berghoff to To- bin. On April 5, the Union also referred Gary Wilde to Tobin, where he worked as a common laborer until in or about June 1976. Although Wilde does not appear on Gen- eral Counsel's Exhibit 23, he received a second referral (to Israel on July 28). No special qualifications were involved in the latter referral. In view of the fact that Menz. who knew Daniels and was in contact with him, serviced the lToin jobs. I find that an appropriate remedy in Daniels' case can be measured by one of the Tobin referrals. It may fairly he inferred that absent the discrimination against them. Sachse would have been referred instead of Ber- ghoff. and Daniels instead of Wilde. 10. Jim Bollinger Prior to October 23. 1975. Bollinger was Fred Kelley's right-hand man. He has been a union trustee since 1972 or 1973. was designated foreman or steward or both, and did not find it necessar, to sign the out-of-work list until after 637 DECISIONS OF NATIONAL LABOR RELATIONS BOARD October 1975. Kelley grudgingly admitted that his former friend was a good steward and foreman over concrete work. Bollinger ran errands for Kelley and at his request would "talk to the men." Kelley's mother was engaged in the business of furnishing lunches at construction sites. Bollinger testified that he talked to men who refused to buy the lunches, because Kelley said that, if they did not, he would "run their ass off the job." Kelley denied that there was any discrimination against employees who refused to take the lunches, but did not deny conveying the threat through Bollinger. Bollinger testified that he left the Fruin-Colnon P & G "Charmin" job on October 23, after he heard about the shooting incident in Cape Girardeau. He testified that he did not go to the union hall until late December, because he was afraid to go there alone. Bollinger further testified that Dean Hency offered to let him come in on a Saturday, and that he came in and registered on the list after check- ing to make sure that Kelley and Menz were not around. However, Bollinger's name appears on General Counsel's Exhibit 23 only at the date of February 23. Hency did not testify as to the alleged conversation in December. He tes- tified that Bollinger came to the hall in February 1976, to have his name put on the list, but asserted that he only knew this by reading General Counsel's Exhibit 23. As be- tween Bollinger and the bogus referral list, I credit Bolling- er. I find that Bollinger should be deemed as having regis- tered on December 27, the last Saturday in December. In light of this and additional evidence discussed hereafter, the inference is warranted, and I so find, that Kelley in- structed Hency not to place Bollinger's name on the list until a later date, in order to avoid a claim that he was entitled to job referrals. As far as getting referrals, Bollinger knew that he was in deep trouble. Figuratively speaking, Bollinger was at the top of Kelley's "enemies list." He testified that he gave Hency three telephone numbers where he could be reached. The first was at the home of his former wife. The second was that of Q. T. Masonry, which had a full-time secretary. The employer was a friend of Bollinger's. The third was that of Bollinger's girl friend, where he was liv- ing. Had the Union been acting in good faith, Bollinger's action would have been superfluous. Before October 23, Kelley had frequently called Bollinger at his former wife's home and at his girl friend's home, and he had often visited the latter. Hency testified that he had also called Bollinger at his girl friend's home. The girl friend changed her tele- phone number in October 1975; however, Bollinger testi- fied that he gave Hency the new number. Bollinger's for- mer wife had the same number during most or all of 1975 through 1976. The Union was also keeping close watch on Bollinger's activities on behalf of the dissident movement. Indeed, the Union proffered testimony concerning numer- ous alleged acts of misconduct by Bollinger and other dis- sident activists. In light of this evidence, the Union's de- fense in Bollinger's case can fairly be characterized as frivolous. The Union's assertion, in sum, was that they did not know where or how to reach him. The only telephone number listed for Bollinger on General Counsel's Exhibit 23 was that of Stoval Brick Block Company. The entry contains the notations "called 8-2 76 Win Bollinger did not know him" and "called Block Co did not know him." Bollinger testified that he never heard of the number until he was told by counsel for the General Counsel that it appeared on General Counsel's Exhibit 23. Hency, Kelley, and Menz testified, in sum, that they called the Block Company and could not reach Bollinger. Kelley also claimed that he called Bollinger at his ex-wife's and at his girl friend's house, but the operator said both numbers were disconnected. Menz testified that he talked to a Kevin Bollinger, and Kelley testified that he talked to a Win Bol- linger, but that neither knew Jim Bollinger. Menz testified that he probably called in September 1976; i.e., after the hearing opened with Bollinger present at the counsel table. The current numbers for Bollinger's former wife and the Q. T. Masonry number are indicated on the unfair la- bor practice charge which was filed by Bollinger on June 2, 1976, and received by Menz and Hency the next day. Hen- cy gave the game away. He admitted that he knew he could reach Bollinger at his girl friend's house, but that Menz told him to use the number on the list. Consequently, Bol- linger was never called for a referral. I credit Bollinger, and find that the Union deliberately avoided calling him for any referrals because of the animus which Kelly and Menz bore toward him. General Counsel contends that Bollinger should have been referred to Tobin on April 9, 1976, instead of Edward Horton, who had worked for Reintjes Construction Com- pany under the old B & C contract from August 14, 1975, to about January 28, 1976. Horton's name appears on Gen- eral Counsel's Exhibit 23 as of February 3, 1976. 1 agree. Horton did some grade checking work, and received a commensurate rate of pay. There is no evidence as to Bollinger's or Horton's qualifications with respect to grade checking. However, the job involved concrete work, at which Bollinger, having been foreman of a concrete crew, was particularly well qualified, and presumably familiar with all aspects of the laborer's work. Moreover, Tobin Paving Superintendent Don Schutt testified that the grade checking work could be learned on the job, because Tobin had its own instrument man. Horton worked for Tobin until at least September 1976. 11. William Penrose Penrose began working as a laborer in 1974, when he obtained a referral through his brother-in-law, Noble Mi- lam. He had varied experience, including working as a hod carrier, and Menz indicated that he had some knowledge of Penrose's experience, including his ability to work at heights. Penrose worked for Reintjes from July 25, 1975, until December 31, 1975, when he was laid off. He regis- tered on the out-of-work list the following Monday, Janu- ary 5. Penrose lived in a trailer, but he left the telephone number of his father, a disabled worker who was normally at home. Penrose's name appears on General Counsel's Ex- hibit 23 at January 5, 1976, the day he registered, and on the yellow sheets at July 23, 1975. His name is crossed off at both places (possibly intended to indicate that he was 638 LABORERS, LOCAL. NO. 282 referred to work), and there are no notations. Penrose testi- fied that he received no messages from the Union until August 1976, when Milam told him that Menz had a job for Penrose. Penrose did not identify the job, although Menz indicated that it was with Blount's insulation sub- contractor. Penrose worked at the job until about October 1, 1976, when he was laid off and subsequently registered on the out-of-work list. Menz testified that he was recalled by the subcontractor but declined to return. Penrose testi- fied that prior to his referral he called Hency about a job, but was told that it did not look good. Penrose did not participate in the dissident movement, and there is no evidence that Menz bore any animosity toward Penrose. (Kelley did not know him.) Menz testified that he unsuccessfully tried several times to reach him by phone at his old telephone number and at his father's home, and finally located him through Milam. His testi- mony is corroborated to some extent by the fact that Pen- rose was contacted through Milam. and that fact also tends to indicate a sincere effort to locate Penrose. General Counsel contends that Penrose should have been referred to Millstone on April 12, 1976, instead of Zeno Blattel. Allowing the Union some leeway, I find that Penrose should have been called for a referral at least by June 8, when 10 applicants were referred to Tobin, some of whom had only recently been referred to other jobs. However. I am not persuaded that General Counsel has carried the burden of showing that Penrose was not called before Au- gust 1976. Consequently, I am recommending that the alle- gation of the complaint with respect to Penrose be dis- missed. 12. Jack Tomlin Tomlin began working as a laborer in May 1974. He worked for Alberici-Fruin-Colnon at the New Madrid project from September 1976 until January 9, 1976. when he was laid off. Tomlin testified that he signed a petition for the dissident movement at the project, and his name appears on one of the petitions which were presented in evidence. Tomlin was one of six laborers, including Fore- man Bobby Jackman, who left the jobsite on October 23. when Bollinger called to tell them about the shooting at Cape Girardeau. The Union used this incident as a pretext to cause Jackman's discharge. but the Board found that the Union did so because of Jackman's actions in promoting and circulating the petitions. .41herici-Fruin-Colnon. 226 NLRB at 1322. Tomlin was present at the October 24 inci- dent involving Ralph Brant, and he testified for the Gov- ernment in both criminal proceedings against the union officials. I find that at least as of October 24, 1976, the Union knew or suspected that Tomlin was a principal fig- ure in the dissident movement. Tomlin testified that he signed the out-of-work list on January 10, 1976, and General Counsel's Exhibit 23 shows his name at that date. However. January 10 was a Satur- day. The names of two other applicants who, according to Tomlin signed the list ahead of him, appear as of January 9. I find that Tomlin registered on January 9. 1 omlin testi- fied that he has received no calls or messages from the Union since that time. General Counsel's Exhibit 23 con- tains the notation "called running a rest. Hick Pit BBQ." His name was not crossed off. Menz and Hency testified that they did not call Tomlin for any referrals. Kelley testi- fied that he called Tomlin twice during 1976. The first time was allegedly during the summer. Kelley testified that Tomlin said that he was trying to make a living in the barbecue business. Kelley testified that the second time, allegedly a couple of months later, Tomlin told him that he had burned his hand barbecuing. Tomlin testified that he worked for Jim Turner in a restaurant known as the Old Hickory Smoke House from June 2 to mid-August 1976. Tomlin was unable to explain an article in the local news- paper dated May 30, 1976, which stated that Tomlin was opening a restaurant. I have previously indicated that I have ample reason to question the credibility of Kelley. I have also found Tomlin to be a less than reliable witness.2 2 However, Kelley's testimony is somewhat inconsistent with testimony of Menz concerning a conversation between Menz and Tomlin. Tomlin testified that in the summer of 1976, at a job in Lutesville, he saw carpenters doing labor- ers' work, and called Menz to complain about it, because he and others were out of work. Menz and Tomlin differed in their versions of this conversation, but Menz admitted that Tomlin made the complaint. If Tomlin were engaged in the restaurant business and no longer interested in refer- rals, why would he have made the complaint? At least, one might reasonably have expected Menz to question Tomlin as to how he knew this, and why someone in the restaurant business would care about it. However, Menz did not testify that he questioned Tomlin along this line. The Union witness- es also failed to explain why Tomlin's name was not crossed off the list, or why Tomlin was not called before the summer of 1976. I1 credit Tomlin's testimony that he was not called for anyjob referrals. I find that the Union did not call Tomlin because of his activities in the dissident movement, and used Tomlin's alternate occupation as a pretext. General Counsel contends that Tomlin should have been referred to Penzel on April 12, 1976, instead of Ray Pu- llam. However, Penzel's records indicated that Pullam worked for Penzel in December 1975, and he may have been recalled. The nearest alleged improper referrals were those of five employees who were referred to Millstone on the same date. I have heretofore found that Edward Ad- ams and Zeno Blattel were previously improperly referred. Terry Bock's name appears on General Counsel's Exhibit 23 as of October 28. 1975. The remaining employee was Nelson Fiedler, whose name appears on General Counsel's Exhibit 23 as of March 31. Fiedler, a personal friend of Kelley's, enjoyed almost continuous employment during the lean months of the 1975-76 season. Fiedler worked for Fruin- I omlin', teiiimons in the criminal conspiracy case concerning the Oc- tlber 24 incident m3terialls, differed from that of the other witnesses. and indicalted a tendency on his parl to exaggerate. Tomln testified that he and olher, personall I signed Ihc otll-of-work hil. although this would have been urnu;ull. Iltern! normalls. enltered the naimes on the lisl. Tomlin's teslimonv concelning Ihe others Ah.o signed before him conflicted with his insesligato- r, iffid.la ii 639 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Colnon from December to the end of March, for Millstone until July 21, and for Israel from July 28 to August 20. Fiedler was not requested by name or skill, or pursuant to any affirmative action program. I find that Tomlin should have been referred to Millstone instead of Fiedler. 13. Shirley Hawkins Hawkins was not presented as a witness, and General Counsel has not explained his failure to call him. Hawkins was laid off from Blount on January 9, 1976, and his name appears on General Counsel's Exhibit 23 as of January 12, 1976, and there are no notations. There is no evidence that he participated in the dissident movement or otherwise in- curred the displeasure of Kelley or Menz. Kelley testified that he did not know Hawkins and never called him, and Hency testified that he did not recall calling him. Paul Menz knew Hawkins and knew something about his quali- fications. Menz testified that he had not seen Hawkins since Janaury 1976. and that he called him several times during the summer but there was no answer. Absent testi- mony from Hawkins, I am not inclined to discredit Menz. I do not regard the absence of the notations as being of crucial significance, as Kelley and Menz often called em- ployees without regard to the list or without making nota- tions of inability to reach a particular individual. I also do not consider General Counsel's assertion that Hawkins should have been called on April 16, instead of during the summer, as a sufficient predicate for finding a violation of the Act. Therefore I am recommending that the allegation of the complaint with respect to Hawkins be dismissed. 14. James Harper Harper began working as a laborer in 1969, and had varied experience. He signed a petition for the dissident movement, attended some of its meetings, was present at the October 24 incident, and testified for the Government in the criminal conspiracy trial. I find that at least as of early February 1976 (when he testified) the Union knew or suspected that he was active in the dissident movement. Harper was laid off from Reintjes on or about January 16. 1976, and registered on the out-of-work list on January 19, 1976. His name is entered as of that date. Harper testified that thereafter he was home about 80 percent of the time, but that he received no calls until in or about August 1976. when Hency called and said that he had to have an answer right away. Harper told Hency that he could not take the job right then because his son had smashed his thumb, and Hency said he would get someone else. Harper testified that, beginning in March or April 1976. he occasionally sold cars from his home (buying used cars, repairing and then selling them) and could hear the telephone from his garage where he worked. Harper advertised in the local paper, and his activity was commonly known in Cape Gir- ardeau, where he lived. He denied ever refusing a referral for this reason. At the January 19 entry on General Coun- sel's Exhibit 23 is the notation "called selling cars." His name was crossed off the list. Fred Kelley testified that he talked to Harper about January 19, about going to work. but that Harper said that he did not want to work because he and another person were selling cars. Paul Menz testi- fied that he called Harper, in February or March, but Har- per said he was babysitting and could not go. I find their testimony incredible. What Kelly and Menz are claiming, in essence, is that, while other employees, including some who had done nothing to incur their wrath, were waiting for months for a referral, they repeatedly offered work to Harper from the day he registered on the list. This alleg- edly occurred during a slack winter, when there were a relatively small number of referrals available. I find it un- likely that Harper would have refused employment at his regular work because of a sideline occupation which he could have easily performed during the evening or week- ends. Rather, Kelley and Menz were simply engaging in their game of dredging up pretexts for not referring active dissidents. In view of the large number of referrals throughout late July and August, and the absence of any apparent urgency. I find that the Union seized upon Harper's temporary predicament (when Hency called) as a reason for not referring him. I find that the Union never made a bona fide offer of a job referral, and avoided refer- ring Harper because of his activities on behalf of the dissi- dent movement. General Counsel contends that Harper should have been referred to Beasley on May 26, 1976, instead of Larry Moore. Moore's name appears on General Counsel's Ex- hibit 23 at September 26, 1975, and again at May 3. 1976. He worked for Millstone for about 3 weeks in April. and apparently registered on the list after being laid off from Millstone. Beasley was engaged in a bridge construction project at Cairo. Illinois, in which one-half of the laborers were referred out of the Union and the other half (through the Union) out of a sister local in Illinois. Paul Menz testi- fied that he thought Moore and two other laborers were requested by name because they were deckhands. How- ever, Beasley Project Supervisor James McGraw testified that no employees were requested by name, that he did not know if Moore was experienced, and that Beasley trained some laborers. Harper did not have experience as a deck- hand. However, he had experience in working at heights. and Menz knew this fact. [ do not credit Menz' assertion concerning decklhands. I find that Moore was not request- ed by name or skill, and not referred by skill. Consequent- ly, Harper, who had been out of work since January, was entitled to referral ahead of Moore. Moore worked for Beasley until about June 16. 1976. 15. Billy Mansell Mansell is Paul Menz' stepson. He was not presented as a witness by either side. Mansell worked intermittently on union jobs for several years, and served as foreman for Alberici-Fruin-Colnon. His name appears on General Counsel's Exhibit 23 as of January 23, and there are no notations. Mansell was present among the defense witness- es at the embezzlement trial, but was not called to testify. There is no evidence that Menz bore any ill will toward Mansell. Menz testified that Mansell lives in the Cape Gir- ardeau area, and has had very little employment in the past year. Neither Kelley nor Hency called Mansell. Menz testi- 640 LABORERS. LOC AL NO. 282 fied that he did not call Mansell for referral because he dlid not have any work for him. This was not true. Mansell had been on the out-of-work list since January 23. was a quali- fied laborer, and was entitled to at least one job referral in preference to others who registered at a later time or who received more than one referral. 1'he actual reason is re- flected in other testimony by Menz. Menz testified that he tried to "disinterest" Mansell in laborers' work because "he's got a pretty good education." Menz avoided referring Mansell in order to prod him into seeking what Menz con- sidered more suitable work. The question thereby posed is whether such conduct is proscribed by the Act. I find that it is. Menz' opinion as to Mansell's career was a personal matter between them. However. in his capacity as business manager. Menz was required by law to refer applicants in a nondiscriminatory manner. Mansell registered on the out- of-work list, thereby indicating that he wished laborers' work, and he never told Menz otherwise. Menz' opinion of what career an applicant should choose, whether the appli- cant be a relative, friend, or neither, was an arbitrary and irrelevant consideration and. consequently, his failure to refer Mansell for this reason was violative of Section 8(b)(l)(A) and (2) of the Act. General Counsel contends that Mansell should have been referred to Tobin on June 8. 1976. instead of Jack Lancaster. However, this contention is based on a recon- structed referral order which I find unnecessarN to consid- er. The next name on General Counsel's proposed list is Terry Bock. However, Tobin's records do not reflect that Bock worked for Tobin. 2 ' The next name on General Counsel's list is Russell Crader. However. Crader appar- ently registered on the out-of-work list on Januar, 19. 4 days before Mansell. The next name is that of L.arry Dan- iel, Fred Kelley's brother-in-law. Daniel's name appears on General Counsel's Exhibit 23 as of May 4. 1976. He worked for Fruin-Colnon until January 30(, 1976. and for Millstone for 3 weeks in April 1976. Daniel worked for Tobin as a common laborer from June 8 until about July 24, 1976. He was one of 10 laborers requested by Tobin on June 8. Tobin Paving Superintendent Don Schutt testified that he requested that most of the crew: have experience in concrete. Menz claimed that he referred men to Tobin from the list, but did not claim that Mansell was not quali- fied. Considering Mansell's lengthy experience, and the large amount of laborers' work involving concrete, it is probable that Mansell had what little qualification was needed for this job. I find that Mansell should have been referred to Tobin instead of Daniel. However, my findings are subject to the Union's right to show at the compliance stage of this case that Mansell was unavailable for work during the period that General Counsel contends that he was eligible for referral. 16. Ernest Brown Brown began working as a laborer in 1969. He worked for Reintjes at the New Madrid project from June 19. 1975, 2' Bock wuorked for I ruin-( ohlno.n ii he fall of 19i7> ma iuh~edpimuteni worked fo r Mililstone and Peniei until Januar> 28. 1976. He worked as a foreman for a pe- riod of time. Brown signed a petition for the dissident group at the jobsite. having been asked by Leon Stricklin. Both were among the five employees who left the jobsite with Bobby Jackman on October 23. Brown was also pres- ent at the October 24 incident. He attended meetings of the dissident group and was present as a spectator at the two criminal trials in St. Louis. I find that as of October 24, 1975,. the Union knew or suspected that Brown was active in the dissident movement. Brown registered on the out-of- work list on February 2. 1976. and his name appears on General Counsel's Exhibit 23 as of that date. Brown's next referral was in late September 1976, about a month after this hearing opened. when he was called by Hency. Pur- suant to this call, Brown worked for American Gunite Corp. from September 28 to November 4. 1976. Brown testified that he received no calls or messages from the Union betwen February 2, and late September 1970, and never refused a job. He testified that he was normall, in and out of his home, that his wife began work- ing in June or July 1976, but that his school age sons were normallx home after 3:30 p.m. Paul Menz testified that he did not call Brown but told Dean Hency to call him. Hen- cs initialls testified that Kelley or Menz called Brown but laiter testified that he did not know if he himself called Brow n. Fred Kelley testified that he called Brown in the spring of 1976, but no one was home. I do not believe Kelley. in part because of an incident which demonstrated both the Union's animus toward Brown and the arbitrary manner in which the . nion operated its referral system. In the spring of 1976. Statler was about to begin work on Schnucks-Walgreen project. Brown, who was anxious for work. asked Statler President Jack Statler if he could inter- cede with Kelle, and get him a job. The conversation took place at the project site, and Kelley was nearby. At the time Statler needed common laborers, and was not seeking a hod carrier. Statler asked Kelley if Brown could work on the job. Kelle, suddenly became a meticulous observer of protocol. and said that he would have to check the list when he got back to his office. Kelley never contacted Stat- ler, who eventualls concluded that he could do without a man for a while. (Kellev's procrastination contrasts mark- edls with the assertions of Kelley and Menz that they re- ferred men with dispatch in order to avoid loss of jobs to their members.) In earl, June. about a month or two later, Statler found that he needed a man. He requested a hod carrier. Kelle, said the Union had none. By this time, Stat- ler had given up on getting Brown. He did not know whether Brown was working elsewhere and, as an alterna- tic. he requested Kelles's friend Timothy Vickery. Kelley agreed. and \'ickery was promptly cleared. Kelley testified that he permitted Statler to exceed the contractual limita- tion on the number of employees that Statler could hire directl'. because of a shortage of hod carriers. However. \VickerN. like Brown. was not a hod carrier, and Vicker', 's namie did not even appear on General Counsel's Exhibit 23i. Kellcxs serlin of ihere escnti diffa r, fron t h.i of SI ilcr .'s ht c . ll Staller. Ih o 11a\ Ihe con,,ldCred l ,111 ilp lrtll willn i e .ard Kell,, I rt'Il S ialler 641 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brown's name is crossed off at the February 2 entry. Opposite the entry is the notation "called working Daniel Const. Springfield." Brown testified that in the summer of 1976, acting on his own, he obtained 2-1/2 days' work for Daniels Construction Company in Fulton, Missouri. by clearing through the Laborers' Local in Jefferson City. Neither Hency, Menz, nor Kelley claimed to have called Brown, Daniels, or the Jefferson local about the job. Rath- er, Menz and Kelley testified that, at a union meeting, member Bill Borneman said, for no apparent reason, that Brown had gone to work for McDaniels Construction Company in Columbia. Before this testimony, Borneman had testified as a witness for General Counsel concerning union meetings in the summer of 1976. (Some of this testi- mony will be discussed, infra.) However, on cross-examina- tion, Borneman was not questioned about the alleged refer- ence to Brown. I do not credit Kelley and Menz. Rather, I find it more probable that the Union learned through its sister local that Brown had obtained work through the lat- ter, and seized upon this fact as a pretext to strike his name off the list. In fact, the Union had no policy of striking applicants off the list if they obtained work outside of the referral system, particularly without communicating with the applicant. I find that the Union deliberately refused to refer Brown because of his support of the dissident move- ment. General Counsel contends that Brown should have been referred to Tobin on June 8, 1976, instead of James Mack, whose name appears on General Counsel's Exhibit 23 as of May 21, 1976. Mack worked for Reintjes at the New Ma- drid project from May 15, 1975, to February 13, 1976. Al- though laid off later than Brown, he enjoyed considerably more success in obtaining union employment. He worked for Millstone from April 16 to May 20 (General Counsel contends that this referral was also improper). Thereafter, Mack was referred to Tobin, where he worked until at least September. He was not requested by name or skill and was not referred by skill. I find that Brown should have been referred instead of Mack. 17. William Leon Stricklin Stricklin began working as a laborer in 1969 or possibly earlier. He worked for Reintjes at New Madrid from June 13, 1975, to January 28, 1976. Stricklin was one of the em- ployees who left the jobsite with Bob Jackman on October 23, and he accompanied Ralph Brant at the jobsite inci- dent involving Brant the next day. He testified against the Union in Alberici-Fruin-Colnon, before a grand jury on January 27, 1976, and at the criminal conspiracy trial. Fol- lowing the October 24 incident, Stricklin filed a charge with the local prosecuting attorney alleging that Kelley had carried a concealed weapon. There was no prosecution. Stricklin testified that he thought he registered on the out-of-work list on Tuesday (February 3) and that he went with Jim Harper. However, Stricklin and Ernest Brown were laid off from Reintjes on the same day (January 28), and Stricklin's name appears on General Counsel's Exhibit 23 as of February 2, 1976, immediately after Brown. I find it more probable that Stricklin did not receive any referrals until early September 1976, when Hency called for a bridge job with Penzel. Stricklin was still working for Penzel as of October 22, 1976. Stricklin testified that his wife was nor- mally home to receive calls, but that he did not receive any calls or messages from the Union until September when his wife took the call from Hency. There are no notations concerning calls at the entry on General Counsel's Exhibit 23. Hency testified that he did not recall calling Stricklin. Menz testified that he called once at night, from his home, that Stricklin's wife said he was at a beer joint and she would try to reach him, but that Stricklin never returned the call. Menz did not identify either the job or the date or approximate date of the al- leged call. I do not credit Menz, because certain testimony by Fred Kelley indicates that Stricklin was arbitrarily cut off from referrals. Kelley testified that, in his opinion, Stricklin was crippled and handicapped for hard labor, in- cluding climbing and heavy work, that he did not call Stricklin, and that he instructed Hency not to call Stricklin for three jobs, including Tobin, because of his alleged physical disability. Hency did not corroborate this testi- mony and Kelley admitted that he never refused to call Stricklin because of his handicap, but let Stncklin make his own decision. In fact, Stricklin did not have any handicap which prevented him from performing laborers' work, and Kelley knew this. Stricklin testified that he walked with a limp because of a hip injury which he suffered when he was 26, but that this did not interfere with his work, and that he could perform any type of laborers' work. Stricklin had varied experience including operating a chain saw, drilling, hod carrier, and serving as a foreman of hod carriers. Kel- ley admittedly knew that he had worked as a hod carrier. The Penzel job to which Stricklin was eventually referred, involved, like the Tobin job, working with concrete, and also involved working at heights. Moreover, Kelley and Menz repeatedly exhibited a disdain for employer prefer- ences when it conflicted with their own. When Kiefner at- tempted to fire Steward Jerry Brown from the Schnucks- Walgreen job because of what Kiefner viewed as Brown's indifference to working, Menz simply had him transferred to the general contractor's payroll. Kelley referred to Mc- Carthy, an employee with a known drinking problem which Kelley had previously sought to conceal from Fruin- Colnon.25 As heretofore found, Kelley's animus toward Er- nest Brown was sufficiently great as to actively prevent him from getting a job. In the case of Stricklin, who played a large role in the dissident movement, the animus was great- er. I find that the Union avoided referring Stricklin be- cause of his participation in the dissident movement. 25 I do not credit the testimony of Foreman Stew ard ILarrs Burlford that he personally hired the employee (whom he did not know) Burford testified that on F riday afternoon. July 16, Mc( arths said it needed a finisher-helper on Mondly, that he did not call Kelley until Sunday night because "It shpped my memors," that Kelley's line was busy. and so he went down to the union hall at 7:30 Monday morning and took the emplosee to the job hecause he was the ionly one at the hall Burford's testimony Is incredible. Kelley jeilousls guarded his prerogatives and probably would have had Buirfiord fired if he hald done an)ihing like this 642 LABORERS, LOCAL NO. 282 General Counsel contends that Stricklin should have been referred to Tobin on June 8, 1976. instead of John Mack, whose employment history closely parallels that of James Mack. That fact, and their common surname and telephone number, suggests the possibility that they were accommodated by being referred to the same jobs. John Mack's name appears on General Counsel's Exhibit 23 at January 19, and again at May 21 (crossed off both times). He worked for Reintjes from May 15, 1975, to January 16, 1976, was referred to Millstone where he worked from April 16 to May 20, 1976, and was referred to Tobin, where he worked unil at least September 1976. I find that Strick- lin should have been referred to Tobin instead of John Mack. E. Findings Concerning Additional Alleged Improper Referrals There remains a question of whether, absent the discrim- ination against them, any of the discriminatees would have been entitled to an additional referral. The question is ad- dressed to the first seven discriminatees whom I have found were entitled to referral to short jobs during the win- ter months; i.e., relatively early in the period in issue. The evidence with respect to all 16 discriminatees indicates that, absent the discrimination against them, they would have waited from 3 to 5 months for a job referral at any time during the period in issue. It may fairly be inferred that the discriminatees, upon being laid off. would have again registered on the out-of-work list. Therefore, the evri- dence indicates that, if the first seven discriminatees worked the same length of time as the employees who were improperly referred in their place,2 1 the)y would have been entitled to an additional referral. I will not attempt to re- construct a referral order in order to determine when each of the seven would next have been referred to a job. Hovw- ever, I have determined that an appropriate remedy may be measured by referrals to the Israel job. In July and Au- gust 1976, the Union referred some 23 laborers to Israel's highway project in Marble Hill. Missouri. (Parenthetically. it may be noted, in view of Menz' and Kelley's professed interest in referring employees who would not have to trav- el far to work, that Jim Bollinger lives in Marble Hill.) The laborers' work lasted until August 20. but involved sub- stantial overtime. General Counsel contends that 17 of the referrals, including the first 7 on July 21. were improper. None of those seven (Charles Edmunson. Michael Fiedler. Elvis McCrite, Donnie Milam. E. 1.. (Bud) Moore. Rick Schlitt, and Timothy Vickery) appear on General Coun- sel's Exhibit 23. McCrite worked for BuckleN from about September 9, 1975, to about March 30. 1976, and for Tobin from June 23 to about July 10. Schlitt worked for Drew from June 15 until about July 2, 1976. Vickery (discussed previously) worked for Statler until sometime in July 1976. Israel brought some laborers from St. Louis: however, they were paid union scale for the St. Louis area, and this fact differentiates them on Israel's records from the employjees 2 /am as.suming on the basil of thc e; idence heforc tle mh thai sh ,tild have done soi. If emploter records Indicate other.ise. a;tn :appropall e dtler- minatint mnaIs he mbie in the Ciripli;Inire ai.ige ' f this ac'e who were referred by the Union, including the seven named above. None of the referrals was requested by name or qualification. I find that the first seven discriminatees were entitled to be referred to Israel instead of the seven who were referred on July 20, 1976. By this date, 5 months after the last of the seven discriminatees would have been laid off if properly referred, they would have been entitled to another referral. As indicated throughout this Decision, I have not placed strict reliance on General Counsel's reconstructed referral order, even when there is evidence that specific contentions in this regard are probably correct. Due consideration must be given to the fact that Kelley and Menz misled employ- ees, including some of their favorites, by leading them to believe that they could obtain referrals without registering on the out-of-work list. The evidence also indicates that the 1975-76 season was in fact a relatively lean period for con- struction work in comparison with prior seasons, and this factor must also be taken into consideration in determining the probabilities of job referrals to the alleged discrimina- tees. I am also mindful of the Supreme Court's admonition against going beyond sanctions aimed "at specific discrimi- natory practices" to "establish a broader, more pervasive regulatory scheme." Local 357, International Brotherhood of Teamsters, C'hauffeurs. (11arehousemen and Helpers of Amer- ica (California Trucking Assn.), 365 U.S. 667, 676 (1961). ('onsequently, I have been constrained not to find a viola- tion of the Act in those situations where General Counsel's case rests solely on a less than extreme deviation from an apparently proper referral order. What I have found is that, absent the evident discrimination against them, the 16 discriminatees would have been referred to I and in some cases, 2 jobs, and that General Counsel's reconstructed re- ferral order. as modified by my findings herein, fairly re- flect the approximate dates andjobs to which they would have been referred. In fact, the discriminatees were improperly passed over many times. I have not passed upon every referral alleged as improp- er. and consequently I have not found it necessary to pass upon all of the factual and legal arguments made by Gen- eral Counsel in his able brief. As my recommended Order is designed to prohibit the Union from operating its referral system in a discriminatory manner, consideration of some of General Counsel's propositions might be desirable in order to more fully apprise the Union of its rights and obligations and the employees of their rights under the Or- der. However, such consideration is not feasible. General Counsel contends that the Union cannot select foremen and stewards on any arbitrary, irrelevant, or invidious grounds. However, General Counsel has not alleged any specific occasion on which a person was improperly re- ferred as a foreman or steward in preference to one of the discriminatees. Indeed, General Counsel apparently avoid- ed naming foremen and stewards in its reconstructed refer- ral order. In .41herici-Fruin-Colnon, supra, the Board found that the Union violated Section 8(b)(1)(A) by discriminato- rily causing the Employer to terminate Bobby Jackman as foreman. However, in concluding that such action was un- lawful, the Board took into consideration the context in which the Union's action took place. As to stewards, see also General American Transporation Corporation, 227 643 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NLRB 1695 (1977). No useful purpose would be served if I attempted to grapple in the abstract with this untested proposition of law. Miranda Fuel Company, Inc.. 140 NLRB 181 (1962), reversed 326 F.2d 172 (C.A. 2. 1963). cited as authority by General Counsel, does not deal specifi- cally with this issue. General Counsel also contends that the Union was responsible for the actions of Foreman-Steward Larry Burford in selecting employees for hire by McCarthy outside of the referral system. In the one situation in which I considered an allegation that Burford independently select- ed an employee, I found that the employee was in fact referred or approved for referral by Kelley. Of course, the Union is bound by Section 2(13) of the Act and by the rules of agency. However, the existence of an agency relationship is de- termined by the facts of the case. CONCLUSIONS OF LAW I. AGC and its employer-members including Millstone, Tobin. Beasley. Drew. Israel. Penzel, and Potasnick. the employer signatories to the B & C contracts. including B & W. Brooks. Buckley. Birk, Kiefner., McCarthy, Penzel, and Statler, and Fruin-Colnon, are employers engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminatorily refusing to refer Don Bollinger. Jim Bollinger. Ernest Brown, Leonard Daniels, James Har- per, Owen Innis, William Miller. Billy Mansell. Norman Morill, Willard Null. Ricky Pobst. Bob Sachse. Joe Sachse. Mike Sachse, William Leon Stricklin, and Jack Tomlin for employment by various employers who are parties to ex- clusive hiring hall arrangements with the Union, including Potasnick. Buckley. Fruin-Colnon. Tobin, Millstone, Beas- ley, and Israel, the Union has caused and attempted to cause employers to discriminate against said employees in violation of Section 8(a)(3) of the Act, and the Union thereby has engaged, and is engaging, in unfair labor prac- tices within the meaning of Section 8(b)(1)(A) and (2) of the Act. 4. General Counsel has not sustained the allegations of the complaint, with reference to Shirley Hawkins, Don Hendrix, Davie Newcomer, and William Penrose. Jr. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. TiiE RFMD)¥ Having found that the Union has violated and is violat- ing Section 8(b)(1)(A) and (2) of the Act, I shall recom- mend that it be required to cease and desist from such violations and take certain affirmative action designed to effectuate the policies of the Act.27 I shall recommend that U ijnlon member Bill Bornemian, a witness for (;Geeral ('ounsel testiled that, at a union nmeeting in the summer of 1976. Kelles. in discussing the pending unfair labor practice case. said that "We will asslst each and ecser member before ansnne gets an} mone¥,."Kelley's statement mil f.iil', he interpreted as a threat ito dissipate the iUnion's assets befoic coinllsing s ith the Union be ordered to make whole each of the discrimi- natees for any loss of earnings they may have suffered by reason of the discrimination against them, computed on a quarterly basis, plus interest at 7 percent per annum, as prescribed in F. W. W'oolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). In order to assure that discriminatees be fairly com- pensated for their losses, I shall recommend that the Union be barred from assessing them for legal fees and expenses incurred in defending this case and for the payment of backpay. To facilitate the computation of backpay and as- sure equal referral treatment. the Union shall maintain and make available for the Board or its agents, upon request, out-of-work lists, referral slips, membership records, and any other documents and records showing job referrals and the basis for such referrals of employees, members, and applicants. I further recommend that the Union be ordered to post appropriate notices and to notify each of the discriminatees, in writing, that the use of the Union's referral system will be available to him on an equal and nondiscriminatory basis with other employees and appli- cants. As the Union has demonstrated a proclivity to vio- late the Act, and the unfair labor practices committed by the Union are of a character striking at the root of employ- ees' rights safeguarded bv the Act. I shall recommend that the Union be ordered (as it was ordered in Fruin-Colnon and A lherici-Fruin-( olnon) to cease and desist from infring- ing in any manner upon the rights guaranteed in Section 7 of the Act. 'his case calls for strong medicine. It is arguable wheth- er any remedy permissible under the Act, as interpreted by the courts, would he adequate. Menz and Kelley appear to be either unwilling or incapable of conducting the Union's operations on an equal and nondiscriminatory basis. I agree with General Counsel that the remedies provided in J. J. llagert.v Inc.. 139 NLRB 633, 638-639 (1962), as modified 321 F.2d 130. 138 (C.A. 2, 1963), and in Interna- tional Association of Briadge, .Structural and Ornamental Iron l4'orkers, Local 35() (Jon E. Curran), 164 NLRB 644. 651 (1967), are appropriate for this case, and I shall recom- mend that they be included in the Order. Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act. I hereby issue the following recom- mended: ORDER 28 Respondent, I aborers International Union of North America, Local No. 282, AFL-CIO. its officers, agents. and representatives, shall: . remedial order in thi, c.lse I he present case insolves substantiat potential backpay. In Siewe of Kelle's hreut, I recommend to the General Counsel that the request Board lulthoilri i ia n t seek Injunctive relief under Sec I0tj) io the the, to enllo tile f iiii I roni dissipating its assets pending the final dlis~,ositin if the case In the ,event no creptlons are filed as pros.ided bh Sec 11)246 of the Rules ind Regtulations of the Ntliolal .iabihr Relations Board. the findings. concrlusiotns. iiand rcomlelinede(ci Orderl herein shall. as prosided in Sec. 1)2 48 of the Rules .ild Rcgulation., be adprted bh the Board and become its findings, conclulsionls. ad ()tder. and all iobjections thereto shall he cleemncdl u;led f.r ;l1 pulrposes 644 L.AHORLRS, LO(CAL NO. 282 1. Cease and desist from: (a) Causing or attempting to cause any emploser to deny employment to, or in any other manner to discrilmi- nate against. Don Bollinger, Jim Bollinger. Ernest Brown, Leonard Daniels. James Harper. Ow'en Innis. XWilliam Miller. Billy Mansell. Norman Morill. Willard Null, Ricks, Pobst, Bob Sachse, Joe Sachse. Mike Sachse. William I.eoi Stricklin, Jack Tomlin, or any other emploxee or applicant in violation of Section 8(a)(3) of the National l.ahor Rela- tions Act. (b) Refusing to refer the above-named indisiduals or any other employee or applicant for employmenit because of favoritism, the likes and dislikes of Respondent's avents. or any other unfair, arbitrary. irrelevant. or discriminatol- reason. (c) In any other manner restraining or coercing emplos ees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Refrain from assessing an, of the above-named dis- criminatees for legal fees or expenses incurred in defending this case or for the payment of backpay. 3. Take the following affirmatise action which is nece- sary to effecutate the policies of the Act: (a) Refer each of the above-named discrinminatees for employment to positions for which the, are quallfied. on an equal and nondiscriminator bhasis with other eniplo?- ees and applicants. (b) Make whole each of the above-named discrinirna- tees for any loss of earnings thes may haxe suffercd hb reason of the discrimination aarinst them. in the m;lnntcr set forth in the section of this l)ecision entitled 'I he Rerm- eds." (c) Notify each of the above-named discriminatecs in writing that Respondent's referral system will be available to them on an equal and nondiscriminatorb hbasis with other employees and applicants. (d) Keep and retain. for a minimum of 3 ecars, perma- nent records of its hiring and referral operations s hich ill be adequate to disclose fully the basis on wlaich each refer- ral is made. 'These records shall indicate the date and tline of all employer requests for workers a.nd the tspc of qutillfl- cations requested. 'lhese records shall also indicate lhe date and time each emplosee requets .a referral and the jobs for which he is qualified. I'hese records shall also in- clude such other iecords as the Regional l)irect or desCnlS necessars to ascertain whether the I nion is aidminiislerinle a nondiscriminl;tor! hiring and referrall s stci. Resplrn- dent shall make these records,; and an's ocher recordlls relat- ing to the hiring and referral practice, asvalible for inspec- tion, upon request. to the Regional Director or his aiEents at all reasonahble times for a period of 3 scirs beginninii with the issuance of this Decision. (e) Submit four quarterls reports to the Regionil l)iTcc- tor, due 10 da s after the close of the calendar qualrltcr the due date of the first report being October It). 1977. con- cerning the emploxyment of each of the abose-;namied dis- criminatees. Such reports shall include thC datles anid nuni- ber of job applications made to the Uiniorn h, these employees. the dates and number of actua;l .obhs referred to these emplosees by the Unlon. and the length of such enm- ployment during such quarter. (f) Maintain and upon request make available to the Board or its agents. for examination and copying. out-of- work lists. referral slips. membership records, and any other documents and records showing job referrals and the basis for such referrals of employees, members, and appli- calnts. which are necessars to compute and analyze the amoulnt of backpas, due the above-named discriminatees. (g) Post at its business offices, hiring hall, and meetin- places c'opies of the attiached notice marked "Appendix." 2 (Copies of said notice, on forms provided by the Regional [)irector for Region 14, after being duly signed by Respon- dent's iauthorized representatives. shall be posted by Re- spondent immllediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in conspicuous places. including all places where notices to members are customarily posted. Reasonable steps shall be taken bs Respondent to insure that said notices are not altered. defaced, or covered by any other material. l(h) Notify. the Regional Director for Region 14. in writ- inr. withirn '0 dass fro m the date of this Order, what steps Respondent has taken to comply herewith. 11 Is it RItiR RRtI(l 1,1)NDIrl) that the allegations of the complaint with respect to Don Hendrix. Davie Newcomer, XWilliami Penrose. Jr.. and Shirle, Hawkins are hereby dis- nilsscd. i '1 ] thn IC c.! t ha lhi (h dcl r ,I cnf, red hs. i -iudgcnicni of a t nired St "r, ( ,' rt .[ N1ppcaN. [i e v rd r s ii thc nlicc re.diln ,I Poted b'( Order ,f lilt \,lla I .III hr Rcitl.ll Bi ri, rd ,hll read 'Tocld I'ursl .nl to a It .J mcn -1 fIl, I n td Siatc, ( ,ur of A ppca l, m runfrc g n ()rder of tih %d(N i tI I .,}~,,t R, cl iilx u}; l \APPEN)DIX No I I( I or,, V t MB RS Po)si Ii) Bs OR)rI (l Ill N s\t(!NI I [ KXI)R Ril I ()INS BOARD An Arenci of the U nited States Government iftcr a hlicailn l in which all sides had an opportunity to prcsent C¢idcillce and state their positions, the National l.a- bor Rel.rlions Boaird has found that we hav-e siolated the National I abor Relatiors Act and has ordered us to post this notice and to carrx out its provisions. W[ i ,l I i,, ol cause or attempt to cause any emplos- cr t denl cinrnplonmenlt t(o. or in an! other manner to discrimilnate againlst. I[)on Bollinger. Jim Bollinger. Er- nest Bro\\n. I eonaird Daniels, James Harper, Owen Inniis. X illianm Mliller. Pill, Mansell. Norman Morill. W'illadn Null. Rickl Pobst. Bob Sachse, Joe Sachse. Mike Sachse. William l.eon Stricklin. Jack lTomlin, or an itS other emploxees or applicant in violation of Sec- tion 8(.(3) t of the National Labor Relations Act. W'l ix l ofr refuse to refer the above-named indi- idlu;Ils otr ain other emplosee or applicant for em- plo)niient hect.use of fasoritism. the likes and dislike of our atents. .r an, other unfair, arbitrars, irrelevant. or cdisci i nll iators reason. 'W1 i 1 I tl )ol in atns other manner restrain or coerce cmltploees ill the exercise of the rights guaranteed in 645 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 7 of the Act, including the right to run for union office, to challenge or question the validity of any union election of officers, or to challenge or ques- tion the manner in which any union officer conducts the Union's operations. WE WILL refrain from assessing any of the above- named discriminatees for legal fees or expenses incur- red in defending the unfair labor practice case or for the payment of backpay. WE WILL refer each of the above-named discrimina- tees for employment to positions for which they are qualified, on an equal and nondiscriminatory basis with other employees or applicants. WE WILL make whole each of the above-named dis- criminatees for any loss of earnings they may have suffered by reason of the discrimination against them. WE WILL keep and retain for a minimum of 3 years. permanent records of our hiring and referral opera- tions which will be adequate to disclose fully the basis on which each referral is made. These records shall indicate the date and time of all employer request for workers and the type of qualifications requested. These records shall also indicate the date and time each employee requests a referral and the jobs for which he is qualified. These records shall also include such other records as the National Labor Relations Board's Regional Director deems necessary to ascer- tain whether we are administering a nondiscrimina- tory hiring and referral system. We shall make these records, and any other records relating to the hiring and referral practice, available for inspection, upon request, to the Regional Director or his agents, at all reasonable times for a period of 3 years. WE WILL submit four quarterly reports to the Re- gional Director concerning the employment of the above-named discriminatees. LABORERS INTERNATIONAL UNION OF NORIKi AMER- ICA, LOCAL 282, AFL-CIO 646