Boilermakers Local 587 (Stone & Webster Engineering Corp.)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Local Lodge No. 587, AFLCIO and Perry Soape, Jr. and Stone & Webster Engineering Corporation. Case 23-CB-1958 November 18, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On June 16, 1977, Administrative Law Judge Robert E. Mullin issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and the General Counsel filed limited exceptions and a reply brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, to modify the remedy so that interest is to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977),' and to adopt his recom- mended Order which has been modified in certain respects. 2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Local Lodge No. 587, AFL-CIO, Port Arthur, Texas, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Operating its exclusive hiring hall in a discrimi- natory manner. (b) Causing or attempting to cause Stone & Webster Engineering Corporation, or any other employer, to discriminate against Perry Soape, Jr., or any other employee, because of his lack of member- ship in Local Lodge No. 587 and in violation of Section 8(a)(3) of the Act. (c) Filing or threatening to file internal union charges against Perry Soape, Jr., or any other member of the International, to discourage any such I See, generally. Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 2 We shall order the Respondent to notify all employers signatory to the "South Central" agreement, including Stone & Webster Engineering Corporation, of its revision of the exclusive referral procedures. Further, the Respondent will be ordered to withdraw, in writing, its letter to the International Union, preferring charges against Perry Soape, Jr., and to read 233 NLRB No. 87 individual from filing unfair labor practice charges with the Board. (d) Arbitrarily refusing to honor requests for information made by employees on the out-of-work register, who have reasonable need therefor, pertain- ing to the exclusive referral system operated by the Respondent. (e) In any other manner restraining or coercing employees or applicants for employment in the exercise of rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Revise and operate its exclusive referral procedures so as to register and refer all job applicants on a nondiscriminatory basis and without regard to whether they are members of Local Lodge No. 587. (b) Notify employers signatory to the "South Central" agreement of the revision in its exclusive referral procedures. (c) Notify Perry Soape, Jr., and Stone & Webster Engineering Corporation it has no objection to his being hired. (d) Refer Perry Soape, Jr., to Stone & Webster Engineering Corporation at Port Arthur, Texas, at the next opportunity and make him whole for any loss of pay he may have suffered by reason of the discrimination practiced against him in the manner set forth in the remedy, as modified herein. (e) Withdraw, in writing, its letter of October 21, 1976, to the International Union, preferring charges against Perry Soape, Jr., and read this withdrawal letter to the members at the next regular membership meeting, and record such fact in the minutes of said membership meeting. (f) Maintain a book or semipermanent type of record to reflect accurately, fairly, and nondiscrimi- natorily the operation of the referral system from the hiring hall, and for a period of I year disclose to the Regional Director for Region 23, or his agents, the manner of operation of the hiring hall. (g) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all records, reports, work lists, and other documents necessary to analyze the amount of backpay due. (h) Post at all places where notices to employees, applicants for referral, and members are posted copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 23, shall, after being this withdrawal letter to the members at the next regular membership meeting, and to make an appropriate record in the minutes of the membership meeting. 3 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order 612 BOILERMAKERS, LOCAL LODGE NO. 587 duly signed by an authorized representative of Respondent Union, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (i) Furnish the Regional Director for Region 23 signed copies of such notice for posting by Stone & Webster Engineering Corporation, said Employer being willing, at all locations where notices to employees are customarily posted. (j) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Order, what steps Respondent Union has taken to comply herewith. of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT tell job applicants under our exclusive referral contract that they cannot be placed on the primary out-of-work register if they are not members of this Local Lodge No. 587. WE WILL NOT prefer internal union charges against job applicants, including Perry Soape, Jr., because they inform us they plan to file charges against us with the National Labor Relations Board. WE WILL NOT file or threaten to file internal union charges against employees, members, or job applicants because they express an intent to file charges against us with the National Labor Relations Board. WE WILL NOT cause or attempt to cause Stone & Webster Engineering Corporation, or any other employer, to discriminate against any employee in violation of Section 8(a)(3) of the Act. WE WILL NOT in any other manner restrain or coerce employees in the exercise of rights guaran- teed by the Act. WE WILL revise and operate our exclusive referral procedures so as to register and refer all job applicants on a nondiscriminatory basis and without regard to whether they are members of this Local Lodge No. 587. WE WILL notify all employers signatory to or bound to the "South Central" agreement, includ- ing Stone & Webster Engineering Corporation, of our revision of our exclusive referral procedures. WE WILL maintain records which accurately and fully reflect the basis on which each referral is made under our exclusive referral procedures, and, upon request of the Regional Director of Region 23, of the National Labor Relations Board, or the agents of said Regional Director, WE WILL make available to said Regional Direc- tor, or his agents, for inspection and copying at all reasonable times, all our records relating to the operation of our exclusive referral procedures under the "South Central" agreement. WE WILL honor the requests of all job appli- cants under our exclusive referral procedures to inspect the out-of-work register or registers, and make notes of the information contained in such register or registers upon their showing a reason- able need therefor. WE WILL refer Perry Soape, Jr., to Stone & Webster Engineering Corporation at Port Arthur, Texas, at the next opportunity, and WE WILL pay him whatever backpay he is due for our failure to refer him to said employer on July 28, 1976. WE WILL withdraw, in writing, our letter of October 21, 1976, sent to our International Union, preferring charges against Perry Soape, Jr., and WE WILL read this withdrawal letter to the members at the next regular membership meeting, and WE WILL record such fact in the minutes of said membership meeting. INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS & HELPERS, LOCAL LODGE No. 587, AFL- CIO DECISION STATEMENT OF THE CASE ROBERT E. MULLIN, Administrative Law Judge: This case was heard in Beaumont, Texas, on February 1, 1977, pursuant to a charge duly filed and served,' and upon a complaint issued on January 3, 1977. The complaint presents questions as to whether the Respondent violated Section 8(b)( I)(A) and (2) of the National Labor Relations Act, as amended (herein called the Act). In its answer the Respondent admitted certain facts with respect to the jurisdictional aspects of the case, but it denied all I The charge was filed on November 19, 1976 613 DECISIONS OF NATIONAL LABOR RELATIONS BOARD allegations that it had committed any unfair labor practices. At the hearing, the General Counsel and the Respondent were represented by attorneys and the Party to the Contract by its senior labor relations supervisor. All were given full opportunity to examine and cross-examine witnesses. At the conclusion of the hearing, the parties waived oral argument and on March 16, 1977, they submitted briefs.2 Upon the entire record in the case, including the briefs of counsel, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE EMPLOYER INVOLVED Stone & Webster Engineering Corporation, herein called Stone & Webster, a Massachusetts corporation with its principal office in Boston, Massachusetts, is engaged, in various States of the United States, in industrial construc- tion. During the 12 months preceding issuance of the complaint, a representative period, it performed services at Port Arthur, Texas, valued in excess of $50,000. During that same period it purchased goods and materials valued in excess of $50,000 from firms outside the State of Texas which firms shipped said goods and materials directly to Stone & Webster at the Port Arthur jobsite. Upon the foregoing facts, the Respondent concedes, and it is now found, that Stone & Webster Engineering Corporation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE RESPONDENT INVOLVED International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Local Lodge No. 587, AFL-CIO, herein called Local 587, or Union, and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, herein Interna- tional, are labor organizations within the meaning of Section 2(5) of the Act. ilI. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Perry Soape, Jr., the Charging Party herein, is a construction boilermaker who has been a member of the National Transient Division (herein called NTD) of the International since about April 1971. 3 As a National Transient member (NTM) of the Interna- tional, Soape was, for a time, the Southeast Texas area steward for the NTD. In that position he came in conflict with Dewey M. Cox, business manager and secretary- treasurer of Local 587. When Soape was removed from his position as steward he filed unfair labor practice charges I Certain errors in the transcnpt have been noted and are hereby corrected. 3 According to the constitution of the International, the NTD is "composed of those members who by the transient nature of their employment and their coverage under the NTM INational Transient Members] agreement have no fixed permanent place of employment and against the International. This charge ultimately resulted in a Board decision that the action of the International was coercive and a violation of Section 8(bXl)(A). General American Transportation Corporation, 227 NLRB 1695 (1977). Soape testified that immediately after he filed the charges in that case, Cox manifested his pique as to this action and thereafter, over an extended period, the business manager sought to have him withdraw the charge. 4 For some time Stone & Webster has been engaged in the construction of a large petrochemical processing plant at the Texaco installation in Port Arthur, Texas. It is one of the most substantial construction projects in the area. Since work on it is expected to last for several years, job referrals to that site are much sought after by members of the craft unions in the Port Arthur area. Soape, who was never referred to a job at Stone & Webster, testified that, in contrast, during 1976 he worked for about 20 different contractors on a series of referrals which led to jobs that lasted for only a few days and at most, no more than a few weeks. The parties stipulated that the exclusive hiring hall provisions of what was known as the South Central Employers' agreement with the International were in effect during the period applicable to this case. The relevant portions of this agreement are set forth below: Article 6 - Referral of Men Section 1. Exclusive Referral: (a) The Employer shall, under the terms of this Article, request the Union to furnish all competent and qualified field construc- tion boilermakers, and boilermaker apprentices. The Employer, in requesting the Union to furnish such applicants, shall notify the Union either in writing or by telephone, stating the location, starting time, approxi- mate duration of the job, the type of work to be performed and the number of workmen required. (b) In the event the Union is unable to fill [a] requisition for applicants within forty-eight (48) hours, the Employer may employ applicants from any other available source. Section 5. Nondiscriminatory Referral: (a) Selection of applicants for referral shall be on a nondiscriminatory basis and shall not be based on, or in any way affected by, union membership, by-laws, rules, regulations, constitutional provisions, or any other aspect or obligation of union membership, policies or requirements. who thus are unable to carry membership in a Local Lodge or participate in its activities." Art. XX sec. I. constirurion (as revised, August 1973). 4 The General Counsel offered this testimony for background purposes only, since Sec. 10(b) of the Act excluded it from being used as a basis for any of the allegations in the present case. 614 BOILERMAKERS, LOCAL LODGE NO. 587 (b) The Employer retains the right to reject any job applicant referred by the Union. (c) The Union and the Employer shall post in places where notices to all employees and applicants for employment are customarily posted all provisions relating to the functioning of the referral provisions of this Article. Section 8. Joint Referral Rules and Standards A. Registration (1) The local union shall establish and maintain an appropriate registration facility for qualified construc- tion boilermakers, and apprentices available for em- ployment ... Early in 1976, Soape discussed with Cox the prospects of his being referred to the Stone & Webster job at Port Arthur. According to Soape, whose testimony in this connection was never denied or contradicted, Cox told him that it was unlikely that Local 587 would ever reach his name. In responding to Soape's query, Cox explained that Local 587 maintained three different referral lists, a primary list, a secondary list, and, finally, what was known as a third "pad," or "permit," list, It was not disputed that Local 587 maintained these different listings. In a pretrial affidavit, that was received in evidence at the hearing, Business Manager Cox acknowledged that the Union maintained two out-of-work lists, "plus a catch-all list kept on a legal pad." 5 Cox further averred that what is known as the "Primary List" carries the names of members of Local 587 who have 4 years or more of experience and that the "Secondary List" is made up of those members of Local 587 who have less than 4 years of experience. The third, or "pad" list, as described by Cox, is for nonmem- bers of Local 587, nonunion permit men, NTM men (such as Soape), and those whom Cox characterized as "travel- lers." 6 Cox further acknowledged that when a request for boilermakers comes in from an employer, the union agent in charge of the hiring hall at the moment7 endeavors to fill the requisition from the primary list. When all names on 5 The quotation is from Cox's pretrial affidavit of November 30, 1976, which was received in evidence, along with another affidavit which Cox gave on December 13, 1976. In its brief, the Respondent asserts that this ruling was erroneous, and cites Army Aviation Center Federal Credit Union, 216 NLRB 435, 436 (1975). The latter case holds that an affidavit secured from a witness after she appeared and testified at the original hearing was properly rejected as untimely filed when counsel sought to offer it as part of his posttrial brief (216 NLRB at 436). That is not the situation in the present case. Here, Cox's pretrial affidavits constitute substantive evidence as the admissions of an adverse party. Under Rule 801(d)(2) of the Federal Rules of Evidence they are as admissible as a letter or any document of a party to the case. See Tony De Clue, an Individual, d/b/a Liberty Cleaners and d/b a T & TDrapery Service, 227 NLRB 1296, 1299, fn. 1 (1977). a The South Central Employers' agreement permits the establishment of primary and secondary registration lists, but only on the basis of residence, with residents of an area who are within a 40-mile radius of a job on the first list, and all others on the second (Art. 6, sec. 8(a(X )). Cox acknowledged, however, in his pretrial affidavit. that the Respondent had never made such a distinction because the local has members who live more than 40 miles away 7 I.e., Cox, Assistant Business Manager J. C. Vaughn, or Dispatcher W. M. McDougald. a All dates hereinafter are for the year 1976, unless specifically noted otherwise. s This, of course, was always the third, or "permit," list. that list are exhausted, reference is then had to the secondary list. Only as a last resort is the third list ever reached. It was on this latter listing that Soape was always required to sign up for job referrals when he sought employment assistance from the hiring hall of Local 587. Although not a member of that Local, Soape credibly testified that whenever he secured ajob through the offices of Local 587, he paid the Respondent a dollar a day field dues for every day he worked, plus a dollar a week for a building fund to which Local 587 required that NTM members, such as Soape, contribute. B. The Alleged 8(b)(1)(A) and (2) Violations, Findings and Conclusions with Respect Thereto On July 28, 1976,8 Soape went to the Respondent's office and signed his name on the "pad," or "permit," list. At that time he told Dispatcher McDougald that he would like to be referred to the Stone & Webster job at Port Arthur. McDougald, however, told him that would not be possible. In fact, Soape was not referred anywhere until about August 5, when he was sent to the Marlin Company for a job which lasted only a day or two because Soape became ill and had to quit. The parties stipulated that in the 3 months subsequent to July 28 Soape signed the out-of-work list 9 on August 16 and 24, September I and 7, and October 18. After August 16, Soape was referred to a job at Swift Chemical which lasted a few days. Thereafter, subsequent to each occasion that he signed in at the hiring hall, he received a referral to another job which lasted no more than a week. Sometime in mid-October Soape was laid off from a job at Combustion Engineering. On October 19, he telephoned Business Manager Cox to inquire about further employ- ment. Unknown to Cox, Soape tape recorded the conversa- tion with the business manager. Transcripts of this tape recording and of another recording which Soape made of a conversation with Cox on October 21, after having been checked for accuracy by counsel for the parties, were received in evidence.tO In his conversation with Cox, Soape referred to the South Central Employers' collective-bar- 10 The Respondent objected to this ruling, both at the hearing and in its brief, primarily because Cox was not apprised of the fact that his telephone conversations with Soape were being recorded. The Supreme Court, however, has upheld the admissibility of tapes in a criminal case even though offered against a party who had no knowledge that his conversation was being recorded. United States v. White, 401 U.S. 745, 752-753 (1971). The Board has likewise held such transcriptions admissible. Fontaine Truck Equipment Company., 193 NLRB 190, 193 (1971). and 195 NLRB 508 (1972); and Grede Foundries, Inc. (Milwaukee), 205 NLRB 39. 47-48 (1973). See also N.LR.B. v. Tex-Tan, Inc., 318 F.2d 472. 483-484 (C.A. 5, 1963); and Hendrix Manufacturing Company, Inc. v. N.LR.B., 321 F.2d 100, 105, fn. 8 (C.A. 5, 1963). Cases cited by the Respondent in its brief. (California Lingerie, Inc., 129 NLRB 912 (1960); Duro Fittings Company, 130 NLRB 653 (1961); and American Aggregate Company, Inc. and Featherlite Corporation, 130 NLRB 1397 (1961)), do not hold to the contrary, as the Respondent seems to assert. These last are early cases on the question as to whether tape recordings may be received in evidence. In those decisions the Board manifested its concern as to "the mechanical possibility that Itapes or transcriptions] may be 'altered' " (California Lingerie. supra at 913), and sustained the rejection of tapes which were "admittedly garbled" (Duro Fittings, supra at 653. fn. I) or which contained "omissions and unintelligible portions" (American Aggregate, supra at 1397, fn. 2). Such issues are not present here, for no question was raised as to the authenticity of the tape recordings in question or the accuracy of the transcripts. Finally, R-W (Continued) 615 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaining agreement and asserted that according to the terms of one section therein he would be eligible for registration on the primary list." Cox bruskly vetoed any such proposal by Soape with the declaration "Hell, you [are] not a goddam member of this Local, and you are not going to get on our primary list." Cox further advised Soape "the best damn thing you can do, you go to the NTM and stay in the . . . damn NTM and leave us alone." When Soape insisted that he was entitled to assistance from Local 587 because he was in the building trades division of the Union, Cox responded that Soape was in the NTM and then added, "You goddamn sure not a member of this local." Soape then referred Cox to article 6, section 5, of the South Central Employers' agreement which requires that referrals by the Union be on a nondiscriminatory basis, and suggested that the business manager check over the provisions of that section. Cox's response was to decry what he described as Soape's proclivity for "going around looking for some goddamn technicality" and to tell Soape that "if you want to work you ought to have stayed with the NTM." Thereafter, in a reference to the charges which Soape had filed against the International and which had resulted in the decision in General American Transportation Corporation, 227 NLRB 1695 (1977), which was then still on appeal to the Board, Cox said "why don't you drop your damn suit and get it over with?" Before concluding their conversation, Cox further told Soape "damn, every time I turn around you're exercising your legal rights . . . you ought to straighten up and go to work." 1 2 On October 19, Soape sent Cox a telegram wherein he alleged that Cox and Local 587 were in violation of the South Central Employers' agreement, as well as various provisions of the National Labor Relations Act, and that Soape intended to pursue his legal remedies. On October 20, Soape returned to Cox's office, where he offered to play a tape recording of a conversation with the timekeeper at Combustion Engineering for the purpose of establishing that he had been laid off and that he had not quit the job there as Cox had alleged in an earlier conversation. Shortly after Soape arrived, his telegram of the day before was brought to Cox's attention by a secretary. Cox thereupon burst out with the declaration that "he had never squealed on me to the International or to Mr. Dave Lewis, who is our N.T.M. director, but that he was going to do so, and he was going to file internal union charges against me for threatening to file charges with the NLRB on him." 13 On October 21, Cox wrote Harold J. Buoy, International president, to inform him that he had preferred charges Service System, Inc., 193 NLRB 659, fn. I (1971), also cited in the Respondent's brief, is a case that is relevant only as to the discretion vested in the Administrative Law Judge to reject such recordings when they are offered belatedly and just before the close of a hearing. " This was a reference to art. 6, sec. 8(a)(l), of the contract, which permitted the establishment of primary and secondary out-of-work lists based solely on differences in commuting distance from a job. As has already been found, however, the lists which Local 587 maintained had no such basis, but were differentiated solely on the ground of membership or nonmembership in the Respondent. 12 The quotations that appear in this paragraph are from the transcrip- tion of the conversation with Cox which Soape tape recorded on October 19. During a recess at the hearing, counsel for the Respondent checked the fidelity of the transcript against Soape's tape recording, and, having done so, against Soape under article 17, section l(e), of the constitution of the International which provides for disciplining a member for "engaging in any activity or course of conduct contrary or detrimental to the welfare or best interest of the International Brotherhood or of a subordinate body." In his letter to Buoy, Cox stated that Soape "has been causing trouble with our Local Officers and members for some time" and that "I am also tired of being threatened by this member that he will take legal action if I do not do this or that to please him." On December 7, Soape again went to the union hall where he signed the "pad" list. On meeting Cox in the building, Soape told the business manager that although he had signed the "permit" list he had done so under protest because he considered the Respondent's referral proce- dures illegal. At some point in this exchange, Cox inquired if Soape had a tape recorder in his briefcase and when the latter feigned incomprehension of this query, Cox told him that if Soape ever again came into the union headquarters with his tape recorder he (Cox) would destroy it. On December 14, Soape returned to the union hall to ask Cox if he could take notes as to those names on the "pad" list which appeared above and below his own. The business manager refused. Soape then asked Cox if he could secure a photocopy of the sheet on which Soape had signed and volunteered to pay any expenses incurred in filling his request. Cox answered in the negative and added that he did not want Soape's money. According to Soape's credible and undenied testimony, when he told Cox that he did not have a photographic memory and could not remember the names on the list, Cox told him "he God damned sure wasn't going to let me take notes on [the list]. He'd let me look at the list, but he wouldn't let me take notes ... land ] he would not run off a copy of it." Findings and Conclusions as to Whether Soape Was Discriminatorily Denied a Referral to Stone & Webster As found earlier herein, on July 28, when Soape registered at the union hall and signed the "pad" list, he asked Dispatcher McDougald that he be referred to the Stone & Webster job. The latter, as found earlier, told Soape that this would be impossible, but offered no explanation for this response. At the hearing, David O. Ellenberger, senior labor relations supervisor for Stone & Webster, testified that, on July 27, he telephoned the Local 587 hall to request that eight boilermakers report to work on July 28. The first referral which Local 587 made to Stone & Webster after the latter date was that of Arthur R. acknowledged the accuracy of the typewritten transcript. Neither thereafter, nor at any time during the hearing, did he engage in cross-examination of Soape as to the telephone conversation with Cox on the day in question. More significantly. Cox, who was called to the stand by the Respondent, was asked no questions about this incident. In one of his pretrial affidavits, Cox conceded that he had a telephone conversation with Soape on October 19. Later in that affidavit Cox denied having told Soape that Soape could not get on the primary list because he was not a member of Local 587. After a consideration of the demeanor of the witnesses at the hearing, as well as the portions of the transcript that are quoted above, it is my conclusion that Cox's denial is not credible and that, instead, the tape recording accurately reflects his conversation with Soape. 11 The quotation is from Soape's credible, undenied, and uncontradicted testimony. 616 BOILERMAKERS, LOCAL LODGE NO. 587 Alexander who signed the primary list on August 3 and who was hired by Stone & Webster on August 9. Within less than 2 weeks thereafter, Local 587 referred eight more individuals who signed the primary list after Soape signed the "pad" list. All of them were hired, almost immediately, by Stone & Webster.' 4 Throughout the period from July 28 to November 12, notwithstanding having signed the "pad" list on six different occasions, and having told Dispatcher McDoug- ald of his desire for steady work at Stone & Webster, Soape was never referred to the latter job. Instead, Local 587 referred him to a series of small jobs, none of them of more than a few days' duration. At one point during the hearing, counsel for the Respondent questioned Soape's qualifications as a con- struction boilermaker. There was no support for this contention. In fact, the very opposite is borne out by the record. Cox admitted that during 1976 he affirmatively checked a line on the work orders that he gave Soape which read "I personally know him to be a qualified construction boilermaker." One work order, so marked by Dispatcher McDougald on Cox's behalf, appears in the exhibit file.15 In a pretrial affidavit, given on November 30, Cox acknowledged, "I don't have any reason to question Soape's experience. I would refer him to any of our jobs including the Stone & Webster job at Texaco." From the foregoing findings it is evident that the Respondent's referral machinery was discriminatory in its operations since it was weighted to give first preference only to members of Local 587 with 4 or more years' experience, then to those members of the Respondent with less than 4 years' experience and, finally, to those on the "pad" list such as Soape, who was an NTD member, but not a member of Local 587. Since this referral practice makes it possible for Local 587 to send its own members to work before nonmembers of the local, the Respondent causes an employer who has agreed to put people to work only when coming out of Local 587's hiring hall to discriminate, in the words of the statute, "against an employee in violation of Section 8(aX3)." For this reason, it is now found that the Respondent's referral system violates Section 8(b)(2). Local 117, United Brotherhood of Carpenters & Joiners of America, AFL-CIO (Peter Kiewit Sons' Co.), 189 NLRB 690, fn. I (1971). The charges which Soape filed against the International in 1975 (General American Transportation Corporation, 227 NLRB 1695 (1977)) caused bitter enmity between him and Cox. In the affidavit which the business manager gave to the General Counsel on November 30, Cox stated: 14 The names of these individuals, as appears from the exhibits that were received in evidence, are as follows: Sitned Hired by Primary Stonle & List Webster Seabron R. McKee, Jr. 8/6 Virge R. Baganse 8/10 Don L. Perry 8/10 Robert L. Sapp 8/12 Gleael li. Hein b/13 Edward H. leio, Sr. 8/17 Donald R. Mullicau t/13 Lloyd M. ltalbert 8/23 He [Soape] has burned so many bridges through the NTM and now he wants to come over to Local 587 and stir up trouble over here - such as nit-picking about safety on the job. Cox did not deny Soape the use of the hiring hall facilities of Local 587. On the other hand, the referral system, discriminatory in itself, was used to make it impossible for Soape, who was never allowed to be on any other than the third list, to be referred for steady employment with Stone & Webster and instead to keep him relegated to casual jobs of short duration. The attitude of Local 587 and of Business Manager Cox toward the Charging Party herein was summed up in Cox's vindictive statement to Soape in their telephone conversation of October 19 when he told Soape: [T]he best damn thing you can do, you go to the NTM and stay in the goddamn NTM and leave us alone. On the basis of the findings herein, it may be said of the Respondent, as the Board held in another case, that the actions of Business Manager Cox served "as a warning to employees that the favor and goodwill of responsible union officials is to be nurtured and sustained." International Longshoremen's Association, Local No. 1581, AFL-CIO (Elias Gonzalez Guerra), 196 NLRB 1186, 1187 (1972), enforced 489 F.2d 635 (C.A. 5, 1974). It is now found, on the findings set forth above, that on and after July 28, 1976, the Respondent refused to refer Soape to Stone & Webster and refused to place him on its primary referral register because he was not a member of Local 587 and because he filed the unfair labor practice charge against the International. Further, had it not been for the Respondent's illegal referral system and the discriminatory manner in which it was administered as to Soape, it is evident that Soape would have been referred to a job at Stone & Webster. By such conduct on its part the Respondent violated Section 8(bXIXA) as well as Section 8(b)(2). Plumbers Local Union No. 17 of the United Association of Journeymen, Plumbers and Pipefitters of the United States and Canada, AFL-CIO (FSM Mechanical Contractor, Inc.), 224 NLRB 1262, 1263 (1976); Local Union 675, International Brotherhood of Electrical Workers, AFL-CIO (S & M Electric Co.), 223 NLRB 1499 (1976). It was also a violation of Section 8(b)(IXA) for Business Manager Cox to file internal union charges against Soape after his telegram of October 20 wherein Soape asserted his intention of filing unfair labor practice charges with the 15 This exhibit is dated October 27, 1976. It is significant that another work order for Soape, dated January 5. 1977. prepared after the complaint in this case issued, is not so marked. 8/16 8/12 8/16 8/13 8/16 8/13 8/16 8/26 617 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board. In a pretrial affidavit Cox averred "I never had any intent to go through with the charges and I don't now; I filed them just to shut him up from threatening me with legal action with the NLRB." From such comments it is evident that the Respondent's action was intended to be, and was, in fact, coercive. Accordingly, it must be, and it is, found that by such conduct the Respondent further violated Section 8(b)(1)(A). General American Transporta- tion Corp., 227 NLRB 1695 (1977). It was likewise a violation of that same section of the Act for Business Manager Cox to refuse, on December 14, 1976, to permit Soape to take notes on the information contained on the "pad" list at the hiring hall, or to refuse to furnish Soape, at the latter's expense, a copy of the page on which his name appeared. Local No. 324, International Union of Operating Engineers, AFL-CIO (Michigan Chapter, Associated Gener- al Contractors ofAmerica, Inc.), 226 NLRB 587 (1976). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Union set forth in section III, above, found to constitute unfair labor practices occurring in connection with the operations of the Party to the Contract described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. CONCLUSIONS OF LAW 1. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Local Lodge No. 587, AFL-CIO, the Respondent herein, is a labor organization within the meaning of Section 2(5) of the Act. 2. Stone & Webster Engineering Corporation, Party to the Contract, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By attempting to cause the Party to the Contract to discriminate against Perry Soape, Jr., in violation of Section 8(a)(3) of the Act, the Respondent has violated and is violating Section 8(b)(2) and (I)(A) of the Act. 4. By refusing, on December 15, 1976, to supply Perry Soape, Jr., the names of employees on the Respondent's out-of-work register, the Respondent breached its duty of fair representation and interfered with, restrained and coerced Soape in the exercise of his rights under Section 7 of the Act, thereby violating Section 8(b)(1)(A) of the Act. 5. By filing internal union charges against Perry Soape, Jr., because he announced his intention to pursue his legal remedies with the Board, the Respondent Union has engaged in unfair labor practices in violation of Section 8(b)(1XA) of the Act. THE REMEDY In order to effectuate the policies of the Act, it will be recommended that the Respondent be ordered to cease and desist from the unfair labor practices found and that it be ordered to operate its exclusive hiring hall in a nondiscriminatory manner; that it maintain records which accurately and fully reflect the basis on which each referral is made and that such records be made available for inspection by the Board's Regional Director or his agent. Further, it will be recommended that the Respondent be ordered to make whole Perry Soape, Jr., for any loss of earnings he may have suffered by reason of the Respon- dent's discriminatory referral practices from July 28, 1976, until such time as its discriminatory practice ceases. Such loss of earnings shall be computed in accordance with the methods prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Finally, since the Respondent's unfair labor practices are serious in nature and strike at the very heart of the Act, it will be recommended that the Respondent be ordered to cease and desist from in any manner restraining or coercing employees or applicants for employment in the exercise of rights guaranteed to them in Section 7 of the Act. Local Union No. 77 of the International Brotherhood of Painters and Allied Trades, AFL-CIO (Colorite, Inc.), 222 NLRB 607, fn. 1 (1976); Local No. 78, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Murray Walter, Inc.), 223 NLRB 733 (1976); Glaziers and Glass- workers Local Union No. 513, affiliated with International Brotherhood of Painters and Allied Trades, AFL-CIO (Joseph J. Cermak, d/b/a Southern Glass Company), 200 NLRB 617, fn. 2 (1972). [Recommended Order omitted from publication.] 618