Local No. 121, Operative Plasterers' and Cement Masons' International Association (Associated Building Contractors of Lafayette, Inc.)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local No. 121, Operative Plasterers' and Cement Masons' International Association and Leroy F. Tubbs and Francis A. Tubbs, and Associated Building Contractors of Lafayette, Inc., Party to the Contract. Cases 25-CB-4270 and 25- CB-4323 September 28, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS JENKINS AND HUNTER On November 19, 1981, Administrative Law Judge Bernard Ries issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions, a supporting brief, and an answering brief to the General Counsel's cross-exceptions, and the General Counsel filed cross-exceptions, a support- ing brief, and an answering brief to Respondent's exceptions. 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,' find- ' Respondent has excepted to three rulings made by the Administrative Law Judge at the hearing, excluding certain testimony and documentary evidence regarding Leroy Tubbs' competence as an apprentice. First, the Administrative Law Judge refused to allow Respondent counsel to con- tinue questioning Leroy Tubbs about his own opinion of his abilities as an apprentice, after Respondent had elicited several admissions from Leroy Tubbs that he "w\asn't all that great" and that he was "not the best." The Administrative Law Judge also refused to allow Respondent counsel to question Leroy Tubbs about jobs he had quit. Respondent counsel argued that this testimony was relevant as to backpay, as to Leroy Tubbs' credi- bility. and as to the apprenticeship board's decision to terminate him. We agree with the Administrative Law Judge that any backpay issues should he resolved in compliance proceedings and that Leroy Tubbs' testimony on these points is not probative evidence regarding the knowledge and motivation of the apprenticeship board members who actually made the decision to terminate Leroy Tubbs. Further, we note that the Administra- tive Law Judge found that leroy Tubbs admitted having problems with his work and with certain employers. Second, the Administrative Law Judge rejected three letters front employers, offered as exhibits by Re- spondent, regarding Leroy Tubbs' performance on the job. These letters were placed in the rejected exhibit file. Inasmuch as the three letters of- fered by Respondent were dated November 20, 1980, December I, 1980. and April 14, 1981. we agree with the Administrative Law Judge that these exhibits are irrelevant to the issues in this case, since they could tnot have been relied on by the apprenticeship board when it decided to ter- minate Leroy Tubbs on August 19, 1980 Furthermore, we agree with the Administrative Law Judge that, in any event, these exhibits should not be given significant weight because they were clearly prepared in contem- plation of litigation. In this regard, we note that the complaint involving Leroy Tubbs issued on October 3. 1980. and that each letter indicates on its face that it was solicited by Respondent Third, the Administrative Law Judge refused to allo w Respondent to present Merle Ray Ileninger as an expert witness to testify about apprenticeship programs generally and the standards for their operation, We agree with the Administrative Law Judge that Heninger's testimony is irrelevant. because he had no direct knowledge of the operations of Respondent's apprenticeship pro- gram and he did not participate in the decision to terminate l.eroy Tubbs. Finally. we note that all of the rejected evidence would have been merely cumulative, since Respondent was allowed to present other evi- 264 NLRB No. 29 ings, 2 and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.3 On August 27, 1980, the Board issued its decision in Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (Ist Cir. 1981), which sets forth a two-step mode of analysis for examining causation in cases alleging unlawful discrimination or otherwise turning on motivation. In section II of his Decision in this case, the Ad- ministrative Law Judge used language which sug- gests that Respondent had both lawful and unlaw- ful motivations for failing to refer Leroy Tubbs and for terminating Leroy Tubbs' apprenticeship, but he did not specifically apply the Wright Line analysis in finding that Respondent violated Sec- tion 8(b)(1)(A). We conclude that, despite the Ad- ministrative Law Judge's failure to articulate his analysis of Respondent's motivations in the terms discussed in the Wright Line decision, his findings satisfy the analytical objectives of Wright Line. The Administrative Law Judge initially considered the General Counsel's prima facie case and found that unlawful motivations contributed to the rescission of Leroy Tubbs' last referral and to the termination of Leroy Tubbs from the apprenticeship program. Thus, the Administrative Law Judge found, based primarily upon admissions by Respondent Business Agent Smith, that Leroy Tubbs' involvement in protected activity, i.e., his criticism of the way Smith ran the Union, caused Smith to rescind Leroy Tubbs' referral to the Logansport job and also caused Smith to call an apprenticeship board meeting for the purpose of terminating Leroy Tubbs as an apprentice. Then, the Administrative Law Judge considered Respondent's defense and found it unpersuasive. Respondent contends that, dence regarding Leroy l ubbs' abilities and problems onl the job, the com- plaints made by employers about his work belore August 19. 1980, and the factors considered by the apprerticeship board members in deciding to terminate him Therefore, we affirm the Administrative Law Judge's rulings 2 Respondent has excepted tt) certain credibility findings nmade by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the reles ant c idence con- vinces us that the resolutions are incorrect Standard or Dr 'uall Products, Inc., 91 NLRB 544 (1950). enfd 188 F 2d I62 (3d Cir 1951) We have carefully examined the record and find no basis for reversing his findings. " We have modified the Administrative l.aw Judge's rc.om mended Order to add a praosision requiring Respoindentl to notify each employer bound by its collective-bargaining agreement, by mailing each a copy of the attached noltice marked "Appendix." that the contract provisions found herein to be unlawful will be given ino further force ior effect See Inrernalionol Photographer of the Mottion Pi urclr Indusries. Local No. 644 of the Internatior nal . ll/rance of Iheutric al Srage Ig phploe- anr d .lortring Pic- rure .fachine Operators of the Unirted Srtats and C(anada, AFL-C1 0 (King- ltirzig Producers), 259 NLRB 1415 (1982). Anrrircan Guild of' lariey . rt- ists .4FL-CIO (Fontainebleau H lotel Corporation, d/h/ a Fontainebleau Hotel). 163 NLRB 457, 472-474 (1967). We has e also modified the Ad- ministratie Iaw", Judge's notice to conform to, iour Order 192 LOCAL NO. 121. PLASTERERS because so many contractors had complained about Leroy Tubbs' performance and had requested Re- spondent not to refer him to their jobs, there were no further jobs to which he could be referred. However, the Administrative Law Judge discredit- ed these explanations, noting that, despite numer- ous complaints from contractors about Leroy Tubbs over a period of months, Respondent had continued to refer Leroy Tubbs to other contrac- tors and had been willing to send him to the Lo- gansport job until he complained about how Smith ran the Union. We agree with the Administrative Law Judge that the General Counsel established a prima facie case of unlawful motivation. At that point, the burden of proceeding shifted to Respondent to demonstrate that, in the absence of Leroy Tubbs' protected activity, it would still have rescinded his referral and terminated his apprenticeship. We agree with the Administrative Law Judge that Re- spondent failed to meet this burden, especially since Respondent presented no evidence to explain why it had continued to refer Leroy Tubbs even up to the day he criticized Smith's running of the Union despite the complaints about his work, why it had never discussed these complaints with Leroy Tubbs before, or why the complaints about Leroy Tubbs were any different from the complaints it admitted receiving about other members' work. We note that the rejected evidence discussed in foot- note 1, supra, would have been insufficient to meet this burden even assuming its truth. Accordingly, we affirm the Administrative Law Judge's conclu- sion that Respondent's failure to refer Leroy Tubbs for employment and its termination of his appren- ticeship violated Section 8(b)(1)(A) of the Act. 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, as modi- fied below, and hereby orders that the Respondent, Local No. 121, Operative Plasterers' and Cement Masons' International Association, Lafayette, Indi- ana, its officers, agents, and representatives, shall take the action set forth in the said recommended Order, as so modified: 1. Insert the following as paragraph 2(c) and re- letter subsequent paragraphs accordingly: "(c) Notify all employers bound by its collective- bargaining agreement, by mailing each employer a copy of the attached notice marked 'Appendix,' that the clauses found herein to be violative of the Act will be given no further force or effect." 2. Substitute the attached notice for that of the Administrative Law Judge. MEMBER JENKINS, concurring in the result: I agree with the result reached by my col- leagues, but I do not share their reasoning. The Administrative Law Judge disposed of this discrim- ination case by finding and concluding correctly that Respondent's explanation for the alleged dis- crimination was pretextual. That being the case. there was only one genuine motive for the con- duct, and that was unlawful. Thus, there is no occasion to discuss and rely on Wright Line.4 That decision was designed to spell out the burdens of proof in situations where there was a lawful motive as well as an unlawful one for the action taken. No such lawful motive exists here, and the application of Wright Line conse- quently itself becomes a pretext and a sham, creat- ing confusion among employers, employees, unions, and the courts which can only plague us in future determinations of such cases. In reaching the result here, I would not rely on Wright Line. See Lime- stone Apparel Corp., 255 NLRB 722 (1980). 4 W'rght Line. a Divisoon of Wright Line, Inc.. 251 NI.RH 1083 (1980) APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Gove:nment TO MEMBERS AND APPLICANTS: After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT coerce or restrain Leroy F. Tubbs or other applicants for employment by refusing to refer them to available employment opportunities because they engage in activity protected by the Act, and WE WILI. write Leroy F. Tubbs a letter telling him that we will not do so. WE WILl. NOT maintain or enforce provi- sions in our collective-bargaining agreement, or policies, which give union members unlaw- ful preference for employment over non- members of a union. WE WILL NOT advise employees that they will not be referred for employment, or threat- en to malign them, or file internal union 193 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charges against them, because they, or others, engage in activities protected by the Act. WE WILL NOT in any like or related manner coerce or restrain employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL make Leroy F. Tubbs whole for our unlawful discrimination against him on and after August 14, 1980, by compensating him for the losses suffered by him, with interest, resulting from our refusal to refer him to avail- able employment opportunities. WE WILL notify all employers bound by our collective-bargaining agreement that the con- tract clauses found by the Board to be viola- tive of the Act will be given no further force or effect. LOCAL NO. 121, OPERATIVE PLAS- TERERS' AND CEMENT MASONS' IN- TERNATIONAL ASSOCIATION DECISION BERNARD RIES, Administrative Law Judge: These consolidated cases, charging Respondent with various violations of Section 8(b)(1)(A) and (2) of the Act, were heard in Lafayette, Indiana, on May 5-8, 1981. Briefs have been received from the General Counsel and Re- spondent. Having considered the entire record, my recol- lection of the demeanor of the witnesses, and the briefs, I make the following findings of fact,' conclusions of law,2 and recommendations. I. BACKGROUND Respondent is a cement masons local in Lafayette, In- diana. It engages in collective bargaining with a multiem- ployer association known as Associated Building Con- tractors of Lafayette, Inc. (hereafter the Association), whose members require cement masons in the course of their construction work. At times relevant hereto, Re- spondent and the Association were parties to a bargain- ing agreement executed on June 2, 1980. William P. Smith became Respondent's business agent in January 1980. In that capacity, he monitors the bar- gaining agreement and is primarily in charge of referring union members to jobs called in to him by employees who belong to the Association. Smith also serves as sec- retary-treasurer of the Local and, as well, spends part of his time working as a journeyman mason. Francis A. Tubbs, one the Charging Parties here, has been a mason and a member of Respondent for some 15 years. His two sons-Leroy, who is the other Charging Party, and Terry-are mason apprentices and union members. The complaint alleges that Respondent, I The errors in the transcribed record of proceedings are hereby cor- rected. 2 Respondent's answer pleaded insufficient knowledge of the jurisdic- tional facts alleged in the complaint. The evidence adduced at hearing clearly demonstrates that it is appropriate for the Board to assert jurisdic- tion here, and Respondent's brief makes no contrary contention. through Smith and others, violated the statutory rights of Francis and Leroy3 by failing and refusing to refer them to available employment because they engaged in conduct protected by the Act and by taking other action similarly motivated. It seems appropriate to discuss at this point the Gener- al Counsel's contention that Respondent operates an "ex- clusive hiring hall" in its relationship with the Associ- ation; i.e., that the Association has agreed with the Union that its members will consider for employment only those prospective employees referred to them by the Union. The record shows that Respondent operates a referral service on a daily basis, with Business Agent Smith dis- patching employees to work on jobs phoned in by con- tracting employers, most such jobs being only a day or two in length. Section 21 of the bargaining agreement provides: The Employer, in requesting Cement Masons from Local No. 121 must make such request twenty-four (24) hours in advance of the time the Cement Masons are to report for work. Although Cement Masons are notified by the Union of the availability of work, the Employer must actually screen and hire employees at jobsite wholly without any refer- ence or referral from the Union. Although the clause is not artfully drawn, it seems to mean that the contracting employers can (perhaps must) hire employees despite the absence of a "reference of re- ferral from the Union," thereby indicating that the hiring hall is not an "exclusive" one. At the hearing, however, business agent Smith testified that his understanding of the clause was that it requires an Association employer "come to [the Union] for all of its employees, cement masons, and no other source." Edgar Olson, president of the Association, was asked at the hearing whether "Local 121 is the exclusive source for the cement finish- ers," and he replied, "They're the ones we would first call, yes." Despite this testimonial indication that the parties be- lieve that they contractually established an exclusive hiring arrangement, the evidence suggests otherwise. Al- though, in point of fact, nearly all hiring of cement masons by Association members is accomplished through union referrals, there is testimony here relating to a number of jobs obtained by one of the Charging Parties and others as a result of directly approaching employers, and no evidence that business agent Smith, who surely was aware of these transactions, complained or took any action in retribution.4 Smith testified, in fact, to his knowledge that "many times" contractors will hire em- ployees directly; although he considered such hiring con- trary to union policy, he obviously has done nothing about such occurrences. a Because two of the principal players are surnamed Tubbs, I shall hereafter refer to them by their first names to avoid confusion. 4 For example, in June 1980. Francis Tubbs was directly hired by a foreman working for Kettlehut, Edgar Olson's firm, into a job which lasted 6 weeks. There can be no question that, in this close-knit communi- ty. Smith was cognizant of this employment. 194 LOCAL NO. 121, PLASTERERS Given this evidence, and the most reasonable interpre- tation of the contract language, it is difficult to say that an exclusive hiring hall existed. 5 For the present purpose of assaying the status of the hiring hall as "exclusive" or "nonexclusive"-i.e., to determine if the Union's refusal to refer employees had the necessary effect of precluding an applicant from obtaining a job, and if, accordingly, a discriminatory failure to refer violated Section 8(b)(2)-- the salient question should be whether, as a matter of practice, the putative employer and employee would have felt constrained to forgo consummating an employ- ment relationship absent a union referral. That is obvi- ously not the case here. 6 The character of the hiring hall is not, however, a very significant question here. As counsel for the Gener- al Counsel points out on brief, the Board has held that, even where a union only offers nonexclusive referral as- sistance to its members, the union's failure, in rendering such assistance, to "act in an 'even-handed' manner toward all its members without discrimination based on the exercise of Section 7 rights" constitutes a violation of Section 8(b)(1)(A) (although not of Sec. 8(b)(2)). Hoisting and Portable Engineers, Local iVo. 4 and Its Branches of the International Union of Operating Engineers (The Carl- son Corporation), 189 NLRB 366, 367 (1971); Chauffeur's Union Local 923. International Brotherhood of Teamsters. Chauffeurs, Warehousemen and Helpers '.4 America (Yellow Cab Company. Yellow Cab Company of Alameda County and .4irporiransit). 172 NLRB 2137, 2138 (1968). Thus, if either Tubbs was denied referral as a reprisal against the exercise of protected rights, a claim *will lie under Section 8(b)(1 )(A), and the same remedy that would be appropriate for a violation of Section 8(b)(2) will obtain. The Carlson Corporation. supra, 189 NLRB at 367, 376-377. It. TMIY Atl I (iAr I ONS RiI \t iN(i T10 It RON rtUBBs The complaint alleges that since on or about August 13, 1980, Respondent has unlawfully refused to refer Leroy Tubbs to work because he "criticized the officers, policies, and procedures of the Respondent and for other discriminatory and arbitrary reasons." In March 1979, Leroy Tubbs enrolled in the joint ap- prenticeship program sponsored by Respondent and the Association. and became a union member at that time. Because he had received some informal training from his father, he was awarded 500 hours toward the 6,000 hours needed to graduate from the program. I ecroy worked at various jobs thereafter, all of them by referral from, or- with approval of, business agent Smith. Ilis career was not unmarked by disharmony. He quit the first Job after or 4 months because the carpen- ter foremen. h(ho had no jurisdiction over him., kept "harassing" him b\ saying that he "w'as not doing [his] job, [he] was standing around all the time." On another s 'i he fact that, a. discussed It/nr,. Respondent reqlire'. all empltoyees to he meminers if the Union dote. not mean, as the General Counlsel seems to contend. that the hiirinl h/ll is aln exclusive oine. l'h pratlie ofa Ihe p. rtics is a rele rtlnt consideration in determining tht nature of the hirilrg arrangement Local linion N\. 174. Inrnatiornal Brotherlihid i/ Iamn tlr,. C hauleiduars. Har, houtenten and I/l/peri o' Iler- ica. Indepn, dentr t1i, i 'i t rag,' 'r Inl JI 22 h NI RI h9(). h', Il (it'17h) job, on which his father was the foreman, the superin- tendent became unhappy with a piece of work and laid off the entire crew, including Francis Tubbs, after about 3 months' employment. In August 1980, Leroy worked for about a week at a union-referred job and, on being laid off for lack of work, was told by his foreman that the superintendent had been unhappy with his perform- ance because he was not helping to sweep, a duty which Leroy thought to be a laborer's task. On August 12, in a call to business agent Smith, Leroy told Smith about his criticism; according to Leroy's undenied testimony, Smith said not to worry about it, and sent him to a I-day job on August 13. At the end of that day, Leroy and Smith talked about another referral. Smith assigned him to a job in Logans- port. During the conversation which followed, Leroy complained about the fact that, in his work that day, he had been sent home at the regular quitting time when other finishers had been allowed to work overtime, which Leroy conceived to be contrary to the bargaining agreement. Apparently Leroy asserted to Smith that he was as competent as a journeyman trainee who had been allowed to stay, and Smith replied that Leroy "didn't know how to do [his] job and [he] didn't know how to finish concrete." Leroy told Smith that the latter was "full of shit," and said that "if people complained about my work, why don't they tell me about it at the time I'm not doing it or whatever I'm doing wrong. Why do they wait until afterwards and then jump my ass about it?" In the ensuing argument, Leroy accused Smith of having a grudge against him "because I wouldn't kiss his ass, kiss the Union's ass," and, expanding on this subject, told Smith that he "felt the Union was fucked up be- cause they run it the way they want. They do-they don't care how we feel, they just run it the way they want." Smith denied the accusation. Smith then told Leroy not to go to the Logansport job, and the conver- sation ended. As of the time of the hearing, Leroy had been referred to no more jobs by Smith. The complaint further alleges, in separate counts, that Respondent violated Section 8(b)(l)(A) when, on August 19, "acting through William P. Smith and the members of the joint apprenticeship committee . . . [Respondent] threatened to terminate the apprenticeship of' Leroy, and when, on August 19, "acting through William P. Smith and [Union President Jorden] Burke, at a meeting of the Joint Apprenticeship Committee [Respondent] threatened to utter false information against its members if they filed charges under the Act." The record shows that. in the August 13 phone con- versation, Smith said something to Leroy about conxen- ing an apprenticeship committee meeting. and, on August 15, leroy was notified that he was required to attend a special meeting of the apprenticeship committee on August 19. Twvo other apprentices (of the 10 or so then being apprenticed) uwerc also called before the commit- tee The committee was composed of Smith, Respondent President Jorden Burke, Respondent Vice President Charles Taylor, and member Pete Belanige. At the meet- ing, after Smith criticized Leroy's work performance. 195 DECISIONS OF NATIONAL LABOR RELATIONS BOARD saying that "there was not a single contractor that they could send [him] to because no one wanted [him]," he recommended that Leroy look for some other line of work. Leroy replied that, if he was kicked out of the Union, he would file charges with Labor Board. He was told that if he did so, "they'd bring up that I had a bad discharge and I lied on my application about my stom- ach problem." On August 25, Leroy filed his charge with the Board. The foregoing is based on the testimony of Leroy Tubbs, confirmed in material aspects by William Smith. Thus, Smith agreed that on August 13, he first told Leroy to report to the Logansport job and later rescind- ed the referral, and he acknowledged that, during the conversation, Leroy had "started to complain about how [Smith] ran the Union . . . and how [Smith was] running the hiring hall." Furthermore, Smith made it clear at the hearing that Leroy's August 13 criticism, in part, caused him to withdraw the Logansport assignment. Asked if it was a fact that the reason he told Leroy not to go to Longansport was "because he complained about the Union as to how you ran it," Smith replied, "As you stated, yes, with . . . in conjunction with the previous reports that I've had from him." There can be no doubt on this record that Leroy's condemnation of Smith and Respondent during the tele- phone conversation was the critical factor which led to the recission of the August 13 assignment, to the conven- ing of the apprenticeship committee meeting on August 19, and to the failure of Leroy to receive referrals there- after. There is, it is true, a fair amount of evidence in this case that Leroy was far from a stellar apprentice; al- though I thought that some of the evidence was exagger- ated some perhaps even fabricated, Leroy himself seemed to concede that he had had problems, by quoting himself as having complained to Smith on August 13 that some employers would "wait until afterwards and then jump [his] ass about" his work.7 Leroy also testified that, prior to August 13, he had called Smith to complain that he was not getting his fare share of work. Nonetheless, despite the fact that Leroy, to Smith's knowledge, had had problems with some contractors and had complained to Smith perhaps more than Smith cared to hear (indeed, had done so on August 12, saying that the sweeping requirement imposed on that day was in violation of the collective contract), Smith was perfectly willing to send Leroy to the Logansport job as of August 13. What turned Smith around, and made all the difference, was that Leroy at that time "complained about the Union as to how [Smith] ran it." Elsewhere, Smith testified, "And it wasn't a matter of him chewing me out that I just took a grudge upon him not to send him, it was the fact that his attitude and the statements that he made concerning the way that myself and other members of our Union were running a local or conduct- ing business were just out of hand and we weren't doing things right." 7 On the other hand. Leroy testified about some jobs which he had worked free of criticism; and the record shows that, in May 1980. he was employed by a firm called Place Crete., which was sufficiently impressed with Leroy to ask him to work on a full-time basis for several weeks in Ohio. That castigation led not only to the recission of the Logansport referral, but, as well, to Smith's decision to call the apprenticeship committee meeting. Smith himself conceded that the meeting was held in direct response to Leroy's criticism. At the hearing, he testified he "called the meeting in respect to what Leroy had said about me running the Union and also because I was unable to refer him out to other contractors because they had requested not to send Leroy on their jobs." This last reason is clearly untrue in view of the fact, inter alia, that Leroy had worked for Wilhelm Construction and Building Sys- tems (see G.C. Exh. 5), and was about to be sent to May- nard Brothers in Logansport, all in the first 13 days of August. 8 It is clear from the evidence that the meeting was prompted predominantly by Smith's indignation at Leroy's criticism; the inclusion of the other two appren- tices on the agenda (one was told that his work was below par and he was put on 30 days' probation; the other was informed that his performance had been the subject of critical comment) was an afterthought." Smith conceded at the hearing that, at the meeting, the commit- tee told Leroy that he should look for work elsewhere, and he answered "yes" to the question whether "the reason you told him to seek other employment was in part based on the conversation you had with Mr. Tubbs on August 13 where he criticized the Union." It is quite apparent that, had it not been for that conversation, the meeting of August 19, and the advice to Leroy at that meeting that his future in the program was dim, would never have occurred. ' a Leroy also testified rather convincingly to other August jobs prior to August 13, but they are not reflected in GC. Exh. 5 The fact that Leroy did work for Wilhelm in August casts some doubt upon the testimony of Stanley Mortensen that, after Francis and Leroy had worked for him in "June or May" 1980 while he was foreman for Wilhelm, he called Smith and "told him I didn't want them on the job anymore." G..C Exh. 4. the daily register maintained by Smith, shows that Leroy was referred to work for Mortensen after calls made by him on July 22 and August II. Smith's testimony on the subject of the managers and foremen who had barred or complained about Leroy did not allude to Mortensen The record shows that Leroy quit Sollitt Construction in 1979 and was, in effect, discharged, with the rest of his crew, from Kokomo Indus- trial Contractor in February 1980. and it seems likely that Smith thought that these employer' would not want to reemploy him. He named two other companies whose managers. he said, had told him that they did not wish to reemploy Leroy. Although he also mentioned other companies whose foremen had "complained" about Leroy. he continued to find work for Leroy. until August 13. 9 The record shows that the union vice president and apprenticeship committee member. Charles Taylor, on some unknlown date. evaluated apprentice Winningham on work observed by Taylor between June 1-15. 1980. Taylor "recommend[edl dismissal" of Winningham Nothing was done about Winningham until the August 19 meeting, when he was put on probation for 30 days. As of the hearing. Winningham was still work- ing profitably at the trade. Smith testified that it was unprecedented to hold a meeting in which apprentices were put on probation or "kicked out." The meeting was also seemingly irregular because none of the employer members of the joint committee were in attendance. While Smith testified that there can be a "committee meeting of' just the Union representatives when you've got problems within your own-your own members to try to iron out." it hardly seems that a meeting in which one apprentice is advised to leave the program and another is put on probation would appropriately be clas- sified as involving only intraunion problems. 'o Smith testified that. in notifying the other committee members of the meeting, he had "possibly" told one of them about Leroy's criticism Continued 196 LOCAL NO. 121. PLASTERERS It is evident, therefore, that had it not been for Leroy's verbal assault against the Union on August 13, (1) there would have been no August 19 meeting, and (2) Leroy would have worked at not only the Logansport job on August 14, but, as well, at other union-referred employ- ment thereafter. I As the Court of Appeals for the Second Circuit noted in N.L.R.B. v. Local 485, International Union of Electrical Workers, 454 F.2d 17, 21, fn. 6 (1972), "the right to criti- cize union leadership" is "clearly protected by Section 7 of the Act."'2 The retaliation against Leroy for engag- ing in such criticism thus encroached upon protected ac- tivity. Smith may have harbored ill feelings against Leroy because of his earlier complaints, and may have held a low opinion of Leroy's skills and work attitude, but it is plain that what provoked him to effectively remove Leroy from the work force was activity in which Leroy was legally entitled to freely engage. I find, therefore, that Respondent, by refusing to refer Leroy Tubbs to work on and after August 14, 1980, vio- lated Section 8(bXl)(A) of the Act. It is true that, after August 13, Leroy did not, until April 1981, expressly re- quest referral. Unquestionably, however, Smith knew that Leroy desired work as much on October 14 or De- cember 14 as he had on August 14. Smith testified that, while the general practice is that employees call him to say that they want work, that is not necessary if he knows that they are not employed.'3 It is obvious that, when Leroy filed his charge on August 25, Smith knew that Leroy wished to work; that when Smith met with Leroy in November in an attempt to settle the present litigation, Smith knew that he wished to work; and that when Leroy sent Smith a registered letter on April 7, 1981, announcing that he was "still available for work," Smith knew that he wished to work. Despite the last- mentioned formal notice, Respondent had still obstinately refused, as of May 6, the day that Leroy testified, to offer him a referral, even though, so far as the record shows, Leroy has not been officially removed from the apprenticeship program. 14 As indicated above, the complaint alleges that, on August 19, the committee unlawfully "threatened to ter- minate the apprenticeship of' Leroy Tubbs because of of the Union. Further, in a tape-recorded interview between Smith and a Board agent. Smith staled that the decision to notify Leroy to seek other employment was "actually made" on August 13. after the phone conver- sation in which Leroy "belittled myself as to I wasn't running things properly." I Leroy's filing of an unfair labor practice charge against the Union on August 25 undoubtedly extirpated any faint hope that might have re- mained of his receiving future referrals. When Smith was asked at the hearing whether, after August 13. he had considered. but decided against. referring Leroy to employment because he had "filed charges with the Board," Smith answered simply. "I'm not sure" 12 Accord: Pipeline Local Union No. 38. etc. (Hiancock-Northwest. J. V). 247 NLRB 1250 (1980); Chauffeurs Union Locol 923. International Broth- erhood of Teamsten. Chauffeurs. Warehousemen and Helpers of America (Yellow Cab Company. Yellow Cab Company of Alameda County and Air- porTransit). supra. II Testimony of Smith. 14 Leroy testified that he had not called Smith for a referral after August 19 "because I knew there'd be an argument." Pipeline Local Union No. 38 (Hancock-Northwest. J V.). supra. 247 NLRB 1250. recog- nizes that continual reapplication is not required when it would be "futile" to do so. Leroy's anticipation that a request would be futile was eminently justified. the criticism he had leveled at Smith and Respondent. I find the "threat" characterization arguably inappropriate. Smith was, as it turned out, beyond "threatening" Leroy; by the time the statement that Leroy should search for other employment was uttered by Smith, he had already concluded that Leroy must be jettisoned. 5 The commit- tee's announcement of its recommendation that Leroy look to other fields for work seems more properly termed a declaration that Leroy's apprenticeship had been de facto revoked. Since the declaration was proxi- mately caused by Leroy's protected activity, Respondent thereby further violated Section 8(b)(1)(A). Finally, as earlier stated, the complaint alleges that, at the apprenticeship hearing, Smith and Burke "threatened to utter false information" against Leroy if he carried out his stated intent to file charges with the Board. Leroy testified that, when he threatened to go to the Board if he was eliminated from the program, he was told that if he did, "they'd bring up that I had a bad discharge and I lied on my application about my stomach problem." Although Smith did not recall that this threat had been uttered, he testified that "possibly" it had. I have little doubt about the accuracy of Leroy's testimony. Confirming evidence is found in Francis Tubbs' testimo- ny that, on October 8, Smith approached him and asked about Leroy's military discharge and his doctor; Smith testified that he "possibly could have" asked Francis about these matters at that time. Smith conceded that on January 5, 1981, he wrote Leroy to ask for copies of his discharge and medical records. When asked at the hear- ing why he wanted the records, Smith's answer at first sounded as if he had wanted to explore the possibility of a Veterans Administration subsidy for Leroy, a rather unlikely explanation, but he later denied such a purpose, saying that he had wanted to investigate a "problem"- not the "problem" of Leroy's filing unfair labor practice charges, but rather the "problem" of his "being sick and not able to work, laziness on the job, and not physically . . . [being able] to do the work." Since Smith said that he had first been made aware of Leroy's sickness in Jan- uary 1980, since he had never previously thought it useful to investigate that problem, and since, as of Janu- ary 1981, Leroy had not worked for 5 months, the expla- nation is not very satisfying. ' Leroy testified that he had received a discharge from the military service under "other than honorable condi- tions." The apprenticeship application he filled out in March 1979 asked about previous military service, but nowhere inquired about the nature of the applicant's dis- charge. Leroy further said that his stomach ailment did not begin until August or September 1980. The commit- tee in fact exhibited preexisting awareness on August 19 that Leroy's discharge had been less than honorable; no steps had been taken to act on that knowledge until Leroy indicated an intention to file charges with the Board. It seems clear that the threats by the committee "s Webster's New Collegiate Dictionary (1977) defines a "threat" as "an indication of something impending." II Smith was a cleancut and earnest young man, but an examination of his whole testimony leads me to believe that he was not always a reliable witness. 197 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to "expose" Leroy's "falsification" of his application, and thereby to tarnish Leroy's name, should he carry out his threat to seek the Board's protection, constituted unjusti- fied coercion against Leroy's statutory right to file charges. I conclude that Respondent thereby violated Section 8(b)(1)(A). i1. THE A.LF EGATIONS PERRTAINING TO FRANCIS TUBBS The complaint alleges that Respondent discriminated against Francis Tubbs by failing and refusing to refer him to work in and after June 1980, because he "filed charges and gave testimony under the Act." Francis has been in the trade and a member of Re- spondent since 1966. It would appear that Francis had no notable complaints about the operation of the Union or the referral system until 1980. In February of that year, as previously indicated, Francis and his crew were laid off from a job. Francis asked Smith to investigate the layoff. When Smith replied that it "wasn't this job" to do so, Francis filed a charge against Respondent with the Board on March 6. A few weeks later, he had a tele- phone conversation with Smith about the charge and was told that "if I pursued the charges that my work would slow down, which it did." 17 After sober consider- ation of this prophecy, Francis withdrew the charge on March 16. In Francis' opinion, the withdrawal served no pallia- tive function. and, on October 9, he filed another charge, alleging that the Union, since March, had discriminatori- ly denied him referrals because he had "filed charges with the National Labor Relations Board." The com- plaint issued by the Region on November 26 made the same claim, except that it dated the commencement of the unfair labor practices as "on or about June 1., 1980." No explanation was offered at the hearing for the choice of the June date; Section 10(b) of the Act would have permitted allegation of a period of discrimination extending back to April 9. Counsel for the General Counsel does not comment on brief about this question; the closest he comes to naming an effective commence- ment date, seemingly in disregard of the logical choices of March or June, is a passing reference to April, as set out more fully below. These unexplained inconsistencies present a problem of analysis which some attention or explanation by the Region might have prevented. The evidence indicating that Respondent bore ill feel- ings towa;d Francis, and therefore may have been of a mind to reduce the work coming his way, is substantial. The first item of such evidence lies in Francis' undenied, and credited, testimony that Smith told him in March that if he "pursued the charges that [his] work would slow down." As the General Counsel points out, it can be argued that the March 26 withdrawal of charges would logically have ameliorated the rationale underly- ing that threat; but it can also be contended that an all- too-human residuum of hostility toward Francis could have persisted even after the withdrawal, and, further, '7 Smith xsas not asked ;it the hearing tI clrlmnenl on his tesimonn I credit Francis. that the charge filed by Francis in October would have triggered a like state of mind. Second, in October, after Leroy had filed his charge in August, Smith accused Francis of being behind "what Leroy was doing," and Smith told Francis that "he was going to do what he had to do."' 8 Smith's belief that Leroy was acting as Francis' pawn in thus attacking the Union was unquestionably; a breeding ground for hostil- ity toward Francis; and since it is clear that Smith was sensitive to such attacks, as witnessed by his treatment of Leroy for having criticized the Union, it could well be that he would have been equally prepared to discrimi- nate against Francis. 19 Third, on September 9, Respondent's president, Jorden Burke, filed an internal union charge against Francis, al- leging that, on a July 29 job, Francis had not performed in a "workmanlike" manner, contrary to the Union's constitution. The complaint alleges, as an independent violation of Section 8(b)(l)(A). that Burke preferred the charge because Francis "filed charges and gave testimo- ny under the Act." If the violation is substantiated, it might also show a hostile mind set against Francis by union officials which would tend to support the claim of a union desire to retaliate against Francis in his employ- ment. I shall, accordingly, now address this subject. Again, however, I must advert to a procedural prob- lem. At the hearing, when counsel for the General Coun- sel began to elicit testimony about two union trials held in October and December on Burke's charge against Francis, I asked why he was doing so, since the com- plaint alleged as unlawful only the September filing by Burke. Counsel explained that the later events would tend to show that the September filing was wrongfully motivated, but he specifically declined to amend the complaint to allege that the hearings (and the eventual imposition of a suspended fine of $50) were themselves violative. While it is possible to prove an earlier motive from later events, it would seem logical to allege also that the subsequent related occurrences were part of a continuum of wrongfully behavior. Sinice the General Counsel has chosen not to do so, any consideration of the later events should be strictly limited to their tend- ency to establish an improper motive behind the Septem- ber preferring of charges. I should also note that, although the complaint, as set out above, attributes the preferring of the internal union charge to the fact that Francis "filed charges and gave testimony under the Act," the most rational argument on the facts, and the only one that the General Counsel makes on brief. is that the September union charge was n' Asked at the hearinlg A helher he had accused r;anciis of instigating the charge filed h) . ro\. Smith firsl tated. "I don't think that I said that." then. "I did no! saN th " thlen. "I don't recall saying that," then. that he "could hasle slid it'' and. finally, that it 'sas "very possible" I credit Francis' testimony "I rirancis and lecroy also o reCdhl) testliied that. after the apprentice- ship colmmittee meeting ended on Augut I9. Francis approached Smith to ask for a Awork referral Smith told Francis "not to tlump on him, he'd been gelling complaints about nmi ork" Vice P'residenit ITalor then called Francis a "D)ick iBostic" ' Srith testified that "[i]j secm, like" Taylor made suich a cominiiii. although he as not sire ItHo lic, the record shos.,, had filed a complail il hlln Ihe I iocal sith the Iliterniation- al a stcar r r two before 198 LOCAL NO. 121, PLASTERERS responsive not to the NLRB charge filed by Francis in March, and then withdrawn, but rather to the NLRB charge filed by Leroy on August 25. Certainly, Burke did not file his complaint in September because of the withdrawn March charge. The obvious relationship here, if any, is between Leroy's August charge and Burke's September charge, and the obvious question raised by the sequence of events is why, if Burke was upset about the manner in which Francis had performed work on July 29, did he not prefer a charge against Francis at the union meeting of August 12, waiting instead to do so at the September 9 meeting, which happened to be the next meeting after Leroy filed his charge with the Board on August 25? The answer given by Burke to this question was that it was his understanding that a presiding officer such as Burke must step down from the chair and relinquish it to the vice president in order to personally initiate such new business, and that the absence of Vice President Charles Taylor from the August meeting made that pro- cedure impossible. 20 But Burke elsewhere testified that "any member of the executive board can sit in as presi- dent or vice president . .. .[if they were appointed properly or either [sic] by me to do so," a statement of belief which contradicts his expressed opinion that only a vice president can serve in the place of a president. The record shows that business agent Smith was at the August meeting. Burke testified that Smith is a member of the executive board. Respondent's "Constitution and By Laws" provides, "In the absence of President and Vice President, Board Members shall act as President or Vice President in order of their election." Smith was, it would therefore appear, entitled to "act as President" at the August meeting, and Burke, as indicated, understood that possibility. Although I cannot say with absolute certitude that Burke was dissembling here, the entire situation leads me to believe that Burke's professed fidelity to Robert's Rules of Order did not play a key role in his failure to prefer charges against Francis at the next meeting after Francis' asserted work derelictions. If Burke had been truly affronted by Francis' job performance on July 29, to the point of desiring to prefer a charge against him, I think he would have preferred the charge on August 12, appointing Smith as president pro tem if he thought it necessary; the delayed filing on September 9 strongly suggests that an intervening cause-Leroy's NLRB charge-played a major role. This is not to say that there may not have been some basis for criticism of Francis' performance on July 29. There is abundant, and conflicting, evidence about the manner in which Francis did his work on July 29, with Burke claiming that Francis performed deficiently in sev- eral respects: failing to assist the other employees in throwing masterplate dust, failing to assist the others in beating some edges which were hardening in the sun while taking a 45-minute lunch, and making two grading 20 The General Counsel's claim on brief that "the minutes of the August union meeting reflect that Vice President Taylor was present" is plainly wrong. The minutes list four officers, two of whom are shown as "P" and two of whom are shown as "A." Taylor's designation of "A" clearly indicates that he was "absent." not "present" errors. Vice President Taylor, who was on the same job, serving as foreman, generally corroborated Burke's testi- mony (except for a lunch estimate of 35-40 minutes), and added that Francis had also left a water mark which had to be redone. At the hearing, Francis conceded having left the water mark, but was not asked about the grading errors or the failure to assist in masterplating. He said that he took only a 20-minute lunch after Taylor had given him permission, and Taylor's concession that he told Francis to "eat, if you have a chance," may indicate that there was not as much obvious need for an extra hand as Taylor and Burke implied. I accept the detailed testimony of Burke and Taylor about the grading problems, and Francis conceded the water mark error. I very much doubt the 45-minute lunch estimate given by Burke (recalled as 5 to 10 min- utes less by Taylor), and I am not convinced on the evi- dence as a whole that it would have been reasonable for Burke to think that Francis was derelict in failing to help throw the masterplating dust or in failing to assist in beating edges. Although Foreman Taylor testified that he spoke to Francis about the grading and the water mark, he did not in any other way chastise or correct Francis. While his explanation-that he "didn't want a confrontation"-is not inconceivable, it does not seem likely that a foreman who felt authoritative enough to tell Francis to rectify some errors would have been re- luctant to say that he should assist others in performing specified work. I do believe, in other words, that Burke disapproved of aspects of Francis' work on July 29, but I do not be- lieve that it was the kind of performance that, in the or- dinary course of things, might have provoked the filing of an internal charge against a veteran journeyman. Mis- takes and complaints about workmanship are, as the record shows, not uncommon; Burke himself testified that he "receive[s] complaints about all the members." The record indicates that such internal charges are a rarity in this local. According to Smith, the last charge had been filed at some time "previous to" January I, 1978, the earliest date covered by the General Counsel's subpoena for such charges, but he gave no further infor- mation as to just how much before that date the last prior charge had been lodged. Taylor testified, with some uncertainty, that internal charges had been filed "in the middle to late 60's."21 I concluded, on the foregoing analysis of the suspi- cious timing, the relatively minor nature of the offense, and the rarity of such internal charges, that had it not been for the filing of Leroy's Board charge in August, Burke would not have preferred his union charge in Sep- tember.2 2 The preferring of an internal charge by a 21 The manner of presentation of evidence at the two hearings also suggests some hanky-panky, but I find the evidence on this point too vague to warrant a definite finding in that respect. 22 There is, in fact. another event which might have contributed to Burke's charge. On August 18, Francis wrote a letter to the president of the International complaining about the manner in which the Local was being run. The record does not establish when Respondent came into possesssion of a copy of the letter but, since it is a Respondent's exhibit, it is clear that the letter was forwarded to Respondent at some point. To Contrinued 199 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union official against a member in reprisal against the filing of an unfair labor practice charge is violative of Section 8(b)(1)(A), Local Union No. 13, an Affiliate of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry (Mechanical Contractors Association), 212 NLRB 477, 479-480 (1974); Internation- al Brotherhood of Electrical Workers, Local Union No. 34 (Protection Alarms, Inc.), 208 NLRB 639, 641 (1974), 1 therefore conclude that Respondent violated Section 8(b)(1)(A) by Burke's filing of a charge so motivated. 2 3 The final incident which might have inclined Smith to discriminate against Francis was the filing by the latter, on October 9, of the charge underlying the present com- plaint. Since Francis had been threatened with loss of work by Smith when he had submitted a similar com- plaint to the Board in March, there is no reason to be- lieve that Smith would not have entertained a like retali- atory intent in October. 24 While there is thus, as discussed, good reason to think that Respondent might have chosen to penalize Francis because of the protected activities engaged in by him and his son, the thorny problem of whether Respondent actu- ally translated such a desire into reality remains for con- sideration. On the present record, evaluation of whether Francis was the victim of discrimination in referral is no simple task. The referral system, for one thing, is a very loose arrangement. There is no sign-in register. Smith testified that, while many of the potential employees call to say that they are available, he maintains no formal list of such calls, although he may write them down in his daily work register; Smith testified to a more basic list: "You know who's available and who isn't." Smith is never completely certain of the amount of work which may be entiled by a particular job' occasion- ally, a contractor will say that he has a short job which stretches out for weeks. Apparently, Smith keeps no run- the extent that the letter may have played a part in Burke's decision, it, too. crnstitutes protected concierted activity, for the reasons explained in conlnectiol v ith I eroy' case, supra. i The colilplaitl also asserts that Respondent, acting through Smith, violated Sec (bh)(1)(A) by "threaten[ing] Francis Tubbs with excessive fines because said employce had filed charges and given testimony under the Act." Francis testified that, shortly before the first union trial of the charge against him, he had a telephone conversation with Smith about the charge i , which he "called Mr Burke a lame." Smith responded that he was going to File a charge against Francis for his derogatory reference to a felloa nmember. aiid "he told me to bring my check book with a lot of money to the internal union trial." Smith testified that Francis' forego- inig accoult was "defiulitely incorrect." but I do not believe that Francis fabricated his tesliitnonll On the other hand, I do not consider the state- ment to he violatlie. unless one is to inflexibly deem any coimmeit by a ulnion official relating to the wrongful charge to be itself independently vilolative. The pentding charge, and the inherent potential of a fine, was threat enlough: Smith's words on this occasion (which probably were principally pros oked by the language used by Francis against Burkel added lnothing subsiantive to the existing situation. a2 Although the complaint alleges discrimination beginning in June 1980 because Francis "filed charges and gave testimony under the Act." logically referring to the withdrawn March charge, the evidence gives rise to broilder possibilities There is a predicate for an argument of un- lawful motive not only stemming from the March charge, but also from the charge filed by L eroy on August 25 (it will be remembered that Smith accused Francis of conniving in that charge) and. as well. from the charge filed by Francis which gave rise to the present complaint (the issue of job referrals to Francis through March 1981 was litigated at the hearing) ning tally of the hours worked by the employees who use the hall. Smith said that he exercise a "certain amount of dis- cretion" in deciding which employee will be referred to a job. He looks to an employee's proximity to the work- site (bearing in mind the fact that "a lot of guys . . won't drive for one day's work 60 miles or so"); his age, experience, and physical characteristics in relation to the work to be done; his known personal preferences ("We have guys that don't like to rub . . . [or] pour con- crete"); and his previous relationship w ith the contrac- tor. 25 Notably, Smith did not advert to a criterion of at- tempting to equalize the work among the regular users of the hall. Given these premises, detection of discrimi- nation-that is, that one employee was preferred over another for any invidious reason-is more difficult here than it would be in appraising hiring halls run by given, particularized, and measurable standards. The General Counsel utilized two forms of proof in at- tempting to establish that Francis' referral rate declined significantly in 1980 and 1981. He began by having Fran- cis testify from notes he had made about the telephone calls to Smith from March 1980 on, and about his work experience in the related period. When it became clear that Francis was attempting to recall facts which were purportedly set out in work records received in evi- dence, this approach was more or less terminated. I should point out that Francis' notes, now in evidence, are obviously incomplete; they do not, for example, in- clude references to referrals which other records show were actually made to Francis.2 6 A more promising source of information about the work performed by Francis and other employees using the referral system are documents introduced by the General Counsel. General Counsel's Exhibit 5 is a May 1979-October 1980 computer list of monthly reports made by contractors for purposes of the dues-checkoff system, specifically prepared for this hearing; General Counsel's Exhibit 6 is a September 1980-March 1981 computer printout showing hours worked for insurance 26 The Board holds that "a union `hicl operaltes a hiring hall without the use of objective criteria i n aking referrals engages im arbitrary con- duct that is violative of its duty of fair represenit;linill," Jouruvitienh Pipe Fitters Local No. 392, affilited with the United .I-iuriwl oif Jourreymen and Apprentiresr of the Plumbing and Pipe. itting ,induqrtv ,/ UIS. and Canada. AFL-CIO (Kairer Engin-ers. Int .), 252 Nt RB 417. 421 (1980) Whether the factors relied on hby Smitlh con I tute "obJcc etls criteria." whether the foregoing principle applies to noiiexcluscie hiring halls, and whether the present referral system is intrinllicall,: ,i,;iative of the Act are issues not presented by the prescnt comlplaint ,'hile it co,uld be con- tended that the propriety of the systemn ha, been subjected to thorough litigation, and is therefore ripe for adjudication under settled law, it is clear from the General Counsel's brief that the G overnnrlmet did not intend to brand the system as uilawful I"Ideally [the referral system] may work well in this setting and may not be per %, illegal, however. it does not negate the extreme likelihood of abuse by those Wielding such power"). While I would concur in the latter sentimenll. it seems clear from the entire quotation that tilhe General Counsel. estcd v ith final au- thority to issue complaints under Sec 1(d), has consciously chosen not to complain about the manner in hlch Rcspondemii's referral system is con- stituted 26 I feel sure that Francis intended no deceptinn here. particularly since he must have known that his prior employment records were avail- able for comparison More likely, he simply failed to record relevant data, and his memory of these short-term jobs proved unreliable 200 LOCAL NO. 121, PLASTERERS purposes; and General Counsel's Exhibit 28 is a comput- er list of hours worked by employees for the period Jan- uary-May 1979. These exhibits are quite awkward to use and analyze; for example, General Counsel's Exhibit 6, which pur- ports to show a summary of the hours worked by em- ployees on a month-by-month basis, often contains hours from other months or even years within the purported monthly segregations, and caution must be taken in ex- tracting data from these pages. The exhibits also appear to be an incomplete depiction of total hours worked by the employees who used the hiring hall. For one, they do not show hours worked by employees for employers who are not under contract with the Union, although there may not be any of those. For another, I have found at least one definite error in them, and there may be others. 2 7 On the reasonable theory that one meaningful ap- proach to determining whether Francis was the object of discrimination in 1980-81 is to compare his hours worked against the other employees for whom there are reports, Respondent has, on brief, constructed a table purporting to show Francis' hours worked for each month between June 1980 and February 1981, and fur- ther showing how those hours ranked on a monthly basis against the other union members. Compilation of such a comparison from the documents in evidence is an ardu- ous task, but a casual review of Respondent's chart shows that it is unreliable, containing fundamental errors both favorable and unfavorable to Respondent. Thus, Respondent shows that Francis worked only 8- 1/2 hours in August, but, as noted in the preceding foot- note, the evidence indicates that he worked about 34-1/2 hours in that month. For September, Respondent counts Francis as working 89-1/2 hours; while General Coun- sel's Exhibits 5 and 6(g) show only 73-1/2 hours, Gener- al Counsel's Exhibit 6(e) reflects an additional 86-1/2 hours for September, making a grand total for September of 160. For November, Respondent shows that Francis worked 208 hours, but in fact he worked only 113-1/2. Respondent obviously drew its November total from General Counsel's Exhibit 6(e), which is loosely labeled "November 1980," but included within the 208 hours there shown are 94-1/2 hours of work performed in Sep- tember and October. There are similar obvious errors in other months and other respects. Although the General Counsel introduced all these records, he has undertaken no anaylsis of them. His only allusion to the raw data is cursory and conclusionary, and he seems to rely primarily on his (accurate) percep- tion that Francis worked less in 1980 than he did in 1979, rather than on a comparison of Francis with other em- ployees in 1979 and 1980, seemingly the more significant measuring rods.28 The General Counsel's entire argu- 27 G.C. Exh. 5 shows that. in the month of August 1980, Francis worked only 24-1/2 hours-8-1/2 for Colasanti Floors, Inc., and 16 for Oland-Gates Construction Co But he testified that he worked for Wil- helm Construction, an Association member, on August 29, and he had with him the checkstub proving that he did so. 28 Quite possibly. all the employees could have worked more hours in 1979 than they did in 1980. ment on the specific subject of comparative work is as follows: In examining the work records of Respondent, it reveals that the number of hours worked by Tubbs from April, 1980 until early 1981 decreased in pro- portion to the number of hours he worked during the same time period in 1979 (see G.C. Exhibits-). [Sic.] Granted is the fact that the jobs F. Tubbs re- ceived came through the hall, however, they were of very short duration. An example of such as [sic] seen in looking at the long term jobs he obtained from June, 1980 to date. The only long term jobs [sic] came in June, and he received that one only because of the aid of his son. The other which he was working on at the time of the hearing, came as a result of Mr. Bostic interceding on his behalf (tr.-). [Sic.] The rest of his jobs were approximate- ly I to 3 days. One might argue that Respondent had no motivation to retaliate against F. Tubbs after he withdrew his charge. However, it should be noted that during the months of April and May, as testified to by Smith, jobs were somewhat scarce, but even more so for Tubbs. As noted above, F. Tubbs received his only long term job in June, 1980, and it lasted until mid July. In late July, he worked some hours. The decrease in work was a direct response by the Respondent because F. Tubbs filed charges with the Board in March, 1980 and again it was the impetus of protected activity that was the cause, in view of the established and continued hostility by the union toward F. Tubbs, shown by the undisputed testimony of F. Tubbs of his telephone conversation with Smith. His work further decreased after the charges were filed by L. Tubbs in August and thereafter. 29 This cavalier treatment of the records put in evidence by counsel for the General Counsel may be open to sev- eral explanations. One is that he has examined the records and concluded that the evidence does not in fact depict a significant disparity for Francis during the mate- rial period (whatever that may be); in that event, the complaint allegation should have been withdrawn. The other inference is that counsel has chosen not to engage in the tedious effort necessary to even attempt an analy- sis of the evidence, leaving that chore to the Administra- tive Law Judge instead. In such circumstances, there is an almost irresistible temptation to say that, if counsel for the General Counsel does not care to make the required effort to demonstrate that the allegation has substance, he may not appropriately pass that burden on to the trier of fact. It is my obligation, however, to "inquire fully into the facts" as to whether Respondent has engaged in an unfair labor practice. Section 102.35, NLRB Rules and Regulations and Statement of Procedure, Series 8, as amended. Moreover, as disucssed above, there is evi- dence beyond the work records which suggests that Re- spondent may have been tempted to discriminate against 29 The blank spaces shown are found in the original brief Most such references in the brief haei not been filed in 201 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Francis. Accordingly, I have independently examined the records in an effort to determine whether they dis- close improper treatment of Francis. As discussed, analysis of these computer printouts, necessary to the threshold step of determining who worked when, and for how long, is a laborious task re- quiring considerable care to assure that the correct fig- ures for the correct employee for the correct months are entered into the tabulations. There are other problems. They include determination of those employees against whom Francis should be measured. The record indicates that a number of employees work exclusively, or almost exclusively, for only one employ- er, who contacts the individual directly when he is needed and without clearing each hire through the hiring hall. Insofar as we are attempting to ascertain whether Francis, who was not so allied with a particular employ- er, was improperly deprived of his fairly anticipated share of referrals, we probably should not compare the fluctuations in his work with those of such single-em- ployer employees, whose number, as the exhibits indi- cate, is substantial. There also appears to be a large group of employees who worked only sporadically at the trade, since the number of hours they worked clearly did not constitute their principal source of income. The fact that such an employee may work relatively greater amount in one period than another would seem irrelevant to Francis' case, for purposes of comparison of him with other em- ployers. I w ould think, in other words, that Francis is best compared only against those other masons who, accord- ing to the exhibits, work for a variety of employers for substantial periods of time, month in and month out. Another problem is the appropriate period or periods in which to measure Francis' referrals against those of other employees. As noted, the charge alleges that the discrimination actually began in March 1980; the com- plaint alleges June; and the General Counsel's brief refers to April, the commencement of the 10(b) period. The evidence suggests at least three potential triggering events for discrimination: Francis' March 20 NLRB charge, withdrawn on March 26; Leroy's August 25 NLRB charge; and Francis' October 9 charge.3 0 The ideal analysis would be, I suppose, to compare the hours worked by Francis against the hours worked by others in his "steady free-lance" category on a monthly basis, measuring Francis' relative ranking for each month from June (or April) 1980 through March 1981 (the last month for which we have records), and comparing those hours and relative standings against the records compiled by Francis and the other employees in the analogous months 1979-80.' :'° While the complaint alleges discriminlaion arising from the first charge filed by Francis. the later possible issues have, I think, been as fully and comprehenlsi.ely litigated as they can be in a case like this one, and are therefore capable of adjudication See, e Vegas Village Shop- ping Corporutoln, 22q NL.RB 279. 2810 (1977). :" Because moist of the -, ork is donle oulside, it is necessarily seasonal, thereby precluding a preinise of ulnvarsing monthly employment oppor- tunities for masoins Unfortunately, having neither computer nor computer programer at my disposal, I have been unable to con- struct such comprehensive comparisons. In attempting a more modest effort, I have first examined the raw hours worked by Francis, as reported in the exhibits, in both 1979 and 1980, beginning in April of those years, in order to make a judgment as to when, if ever, arguable discrimination began. 3 2 The exhibits show no palpable signs of variance until, I would say, October 1980. Thus, in April 1979, Francis had worked a reported 109 hours33 ; in April 1980, he worked 119-1/2 hours.3 4 In May 1979, Francis had totaled 98-1/2 hours, and in that month in 1980, 67-1/2.35 In June 1980, according to Francis, he got a job with Kettlehut by direct engage- ment, without Smith's help, and worked there in July as well; the exhibits reflect a total of 242 hours for the 2 months on this job. Since Smith undoubtedly knew about this employment, he obviously would not have attempt- ed to refer Francis elsewhere, thus making it impossible to test Smith's willingness to refer. In August 1980, Francis worked about 34-1/2 hours36 by referral from the hall, as compared to 156 in August 1979. He testified, however, that he was out of town for the first 2 weeks in August 1980, thus reducing his op- portunity for referral in that month and conceivably losing out on any long-term work which may have become available during his absence. In September 1980, Francis was referred to work amounting to 160 hours, 37 an improvement over the 125 hours shown for Septem- ber 1979 in General Counsel's Exhibit 5. The discrepancies for Francis beginning in October, when, it will be remembered, he filed his unfair labor practice charge, are more dramatic. His comparative fig- ures appear as follow: 1979-1980 October 1979-240 November 1979-238 December 1979-178 January 1980-187 February 1980--111 1980-1981 October 1980-1171/2* November 1980-1131/2 December 1980-881/2'* January 1981-401/2 February 1981-34 *See G.C. Exh. 5 and G.C. Exh. 6(e). **See G.C. Exh. 6(c) and G.C. Exh. 6(d). '2 The figures given hereafter generally exclude fractional hours in their computation, but not always. .3 G.C. Exh. 28(d) :4 G.C. Exh. 5(c). 35 The General Counsel errs, on brief, in stating that Francis worked only "some 96 hours in April and May 1980," a6 See fn. 27, supru. 37 As noted earlier, G C. Exh. 5 shous a total of 73-1/2 hours at four different jobs, and G C. Exh 6(e) shows an additional 86-1/2 hours. 202 LOCAL NO. 121. PLASTERERS In each given month in 1980-81, Francis worked less than 50 percent of the hours he had worked during the same month a year earlier. The January 1981 total be- comes somewhat less startling when the reader is made aware that Francis was unavailable for work for the first 2 weeks in January; but the difference between the Janu- ary 1980 figure of 187-1/2 hours and, say, 81 (hypotheti- cally doubling Francis' true hours for January 1981 to compensate for the missing 2 weeks) is still substantial. Francis' own record for the two periods means little in isolation, however. To be meaningful, comparison with other employees sharing his work status is necessary. I have therefore constructed a table comparing Francis' employment for the 5 months of October-February in 1979-80 and 1980-81 against other "mutual-employer" employees who worked at least 75 hours per month (or a total of 375 hours) during the first such period. Niame Binion, E. Bostic, R. Bunch, K. Byers, R. Calhoon, M. Denny, R. Dozier, E. Kniebes, B. Kyle, Ch. Kyle, Wm. *McKinney, James Phillips, G. *Redinbo, J.G. *Redinbo, J.R. Riley, B. Riley, Coy *Smith. B. Smith, W. Snyder, Ch. Snyder, J. Swisher, J Taylor, C. Tubbs, F. *Winningham, C. 10/79- 10/80- 2/80 2/81 724 649 469 601 701 453 627 511 615 919 607 848 682 649 881 876 809 519 619 406 534 533 954 662 305 430 323 305 490 579 432 543 378 880 519 808 472 441 343 251 737 719 555 238 261 452 394 479 *Apprentice. One of the two Redinbos is an ap- prentice, but the record does not establish which one. Whether there are other apprentices in the list is uncertain; there are about 10 apprentices al- together who use the hall. These 24 employees represent only about one-quarter of the total employees for whom hours are given in the exhibits during the first period;3 8 those excluded, as indi- cated, worked less than 375 hours during the first period, worked exclusively, or almost so, for one employer, or did not reappear for the second period.3 9 s8 For the years of 1979 and 1980. more than I50 names appear on the exhibits as having worked reported hours. 39 Also excluded are a large number of employees who first appear on the records in the second period. As can be seen, Francis fared extremely well in the first period; his 954 hours, in fact, gave him the most hours of any of the 100 employees shown on the records for that period (William Kyle was second with 919), and the exhibits show that he received 18 assignments in that 5 months, an unusually large number. His performance in the parallel time span in 1980-81 is, in contrast, surpris- ingly lower, being 560 hours less than in the same period of the preceding year; that difference requires some seri- ous consideration. As the foregoing table and the other records not sum- marized here suggest, in 1980-81 there was a general de- cline in the hours worked for a majority of the regular employees; the source of the decline was presumably at- tributable to the present economic climate. That down- turn, it appears, necessarily would have had its effect on Francis as well. Then, too, since Francis was unavailable for work for 2 weeks in January 1981, it might be fairly said that the 560-hour loss figure is somewhat exaggerat- ed (perhaps by 40-60 hours) by that circumstance. 40 Still and all, a 500-hour decrease is a very substantial one, perhaps statistically enough to constitute evidence of discrimination against Francis. Several factors give me pause, however. One is that at least two other employees suffered de- clines similar to that experienced by Francis, namely, Coy Riley and Bernie Riley; they worked, respectively, 625 and 538 fewer hours in the second period than they had in the first. The printouts show that the Rileys worked in each month in the second period and thus were presumably in the labor market during that time.4 1 The potential inference as to Binion, who dropped 419 hours between the two periods, is clouded; he may not have been much available, since he did not work at all in January. The second factor is that Smith did not become the business agent until January 8, 1980, or more than 3 months after the beginning of the first 5-month period being evaluated here. As shown earlier, the two heaviest months, for Francis, of that period occurred under the regime of Charles Taylor, Smith's predecessor, and Smith simply may not have been inclined to award as many jobs to Francis as Taylor had seemingly been wont to do. 4 2 Third, the October 1979-February 1980 period may have been an unusual one for Francis, and could have re- flected an extraordinary situation. As shown above, in four of those months he worked substantially in excess of a normal 40-hour workweek. For that reason, a record showing more than I year of his prior work experience would have been useful. 41 Francis also conceded that, in December 1980. he chose not to work on some days on which the weather was forbidding 41 Coy worked two jobs in October. four in November. two in De- cember, one in January. and one in February. He testified that he worked full time for Anderson-Miller at the Chrysler job in 1980 until it ended in "the last part of '80." hut G.C Exh 5 shows him working at various jobs throughout 1980. Bernie worked three jobs in October. four in Novem- her. ati], in December. two in January. and one in February. 42 The fact that Francis worked 187 hours in January 1980 and III in February does not detract from this speculation. since he was employed during these months on the long-term job with Kokomo Industrial Con- tractors which had begun in December 1979 203 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fourth, there is a certain amount of luck involved here; it would appear that a man might be sent out on a 2-day job on Monday, and thereby narrowly miss out on a 3-week job which comes up on Monday to begin on Tuesday. 4 3 Fifth, Smith testified that the hours of work shown on General Counsel's Exhibit 5, the computer list main- tained for the dues-checkoff system, would include work which the employees obtained "outside of the hall." Pre- sumably, this would also be true of General Counsel's Exhibit 6. This fact makes analysis difficult, since it means that the hours shown do not necessarily reflect re- ferrals by Respondent, but could include work directly obtained by employees. Sixth, the list given above probably contains unidenti- fied apprentices, whose situation is not comparable to Francis'; the record suggests that apprentices may often receive more work than journeymen. While the overall 5-month decrease in hours for Fran- cis is striking, a month-by-month examination of referrals leaves one uncertain about Smith's method of assign- ment. In October 1980, when Francis worked 117 hours at four jobs, he was bested by many others on the list given above, but in November, December, and February (1 have omitted January because of Francis' 2-week ab- sence in that month), his relative performance im- proved.4 4 There are any number of possible explanations for the figures for each employee: some may show badly only because they chose not to work during a particular "4: There is no indication that Smith would take the first man off the first job and dispatch him to the second job, and vice versa, in such a situation. 44 The conlparison is as follows: Oct. Nov. Dec. Feb. Binion Bostic Bunch Byers Calhoon Denny Dozier 'Kniebes Kyle, Ch. *Kyle, Wm. McKinney Phillips Redinbo, J.G Redinbo, J R Riley, B. Riley, C Smith Snyder, Ch. Snyder, J. Swisher Taylor, C. Thornton Tubbs, F. Winningham 163 177 178 101 187 173 188 184 151 207 208 177 170 169 189 116 215 187 101 75 162 31 117 0 48 91 105 57 122 81 152 249 37 169 138 194 94 101 89 64 143 137 47 88 124 8 113 308 67 10 16 83 93 144 83 109 III 161 68 129 97 90 35 41 100 90 33 0 77 0 88 64 25 107 24 42 45 36 0 0 56 152 32 132 42 64 12 12 167 92 57 75 57 0 34 46 *These employees worked all their hours in these months for a single employer. W. Kyle, in fact, worked fairly closely with one employer throughout the period shown in the exhibits, although not, I think, with sufficient exclusivity to be deleted from com- parison with Francis. period; others may have been assigned to jobs the tenure of which turned out to be longer than expected. Given the many variables in the setting,45 I am unable to con- clude that Francis was the object of unlawful discrimina- tion despite a profound suspicion that he may have been. It may be that Francis' decline during the period is the more dramatic because he was starting from such a high point, a position, of course, which he may, for lawful reasons, be required to lose. In addition to the problems earlier noted, I suspect that the time period shown here for deriving discrimination on the basis of a statistical in- ference is too short; more than a year, perhaps two, after October 1980 would, together with several years of Francis' prior employment history, present a clearer pic- ture. The more direct and helpful approach to determining the presence of discrimination, rather than relying on in- ferences to be drawn from raw data in a complex referral setting, would have been to question Smith about his re- ferral choices during the relevant period. In evidence is a daily log maintained by Smith which, in a rather disor- derly fashion, shows most of the calls for referral of em- ployees received by him, and the referrals he made in re- sponse. It would have been helpful (although laborious) for the General Counsel to question Smith about his rea- sons for choosing to refer one employee over another to particular jobs during the time with which we are con- cerned, but no such inquiry sras undertaken, and the log itself provides no basis for intelligent guesswork. On the strength of the statistical data, accordingly, I am constrained to conclude that the evidence does not preponderate in favor of finding a violation, despite my belief that Respondent may have been both inclined to discriminate against Francis and capable of doing so, and despite and abiding suspicion that it actually did so. It is not enough for the General Counsel to show inclination and capacity; although those factors help to make a prima facie case, his proof must be rounded out by some showing that Francis was actually adversely treated for proscribed reasons. In some cases, statistics might suffice, but these statistics, in this setting. are insufficient. I shall therefore recommend that the allegation be dismissed. I add a purely gratuitous note. The discretionary manner in which the hiring hall is now operated makes it possible for a business representative to act inequitably and arbitrarily toward those employees who desire to use its services. 46 While invidious action cannot be forever disguised, and will eventually be exposed when subjected to careful and detailed proof and scrutiny, it is obviously preferable that a system be established which provides some certainty that employees are being treated fairly and which obviates the need for elaborate investigation of complaints. It does seem that the maintenance by the Union of some sort of cumulative chart of hours worked, and of a 45 I include the fact some of the availahle swork during the relevant period was with Sollitt Construction and Kokomio Industrial Contractors. two firms which, Francis seemed to agree. no longr kwere potential em- ployers for him. 46 While there is no definitise esidencc of fa..oritim to Snmith's ap- prentice brother Bryan, his good fortune, as shown in the exhibits, seems to attest to this possibility 204 LOCAL NO. 121, PLASTERERS more systematic record of efforts made to contact em- ployees, would offer the employees assurance that their right to equitable consideration was being honored. In so suggesting, I recognize that the kind of long-distance hiring hall being operated here, involving jobs of indeter- minate length, can never be expected to attain perfect equity. It nonetheless appears that an effort toward that end is a most desirable objective. IV. THE CONTRACT PROVISIONS The complaint alleges that two provisions of the con- tract executed on June 2, 1980, violate the Act. Section 28 provides: In the interest of providing an opportunity of em- ployment for all qualified journeymen Cement Masons while at the same time securing a fair distri- bution of employment for those journeymen who reside within the area covered by this agreement, it is agreed that at all times during the progress of any and all jobs, 50% of the Cement Masons, if availa- ble, employed by the Contractor, plus the odd man, if any, shall have been members of the Local cov- ered by this Agreement for the six months preced- ing employment. The remaining 50% of the work- ing force may be residents of the area or non-resi- dents at the discretion of the Contractors. Section 25, item 15, provides: . . .When a job is started without a mason being employed, said job shall be unfair to the Local and when a mason is called out to said job, he shall be paid the difference in wages from the time the job is started until he arrives on said job. Business agent Smith testified that Respondent en- forces both contract clauses; he went further and stated that Respondent, apparently on the basis of his construc- tion that the word "mason" in the second clause means a member of the Local or International Union rather than a member of the generic craft, requires that "all" masons employed by an employer be "Union members," unless no members are available. Both clauses are clearly unlawful. A clause virtually identical to the first set out above was conceded to be improper in Plasterers' Local Union No. 32 (McCroy and Co., Inc.), 223 NLRB 486, 490, 491-492 (1976), and the second clause is equally flawed. Moreover, in view of Smith's sweeping testimony to the effect that Respondent enforces these clauses so as to require that only union members may be employed, unless no members are avail- able, in apparent disregard of the strictures of Section 8(f), it is appropriate to issue a remedial order predicated on that testimony. CONCLUSIONS OF LAW 1. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act, and it is appropriate for the Board to assert jurisdiction in these cases. 2. By refusing to refer Leroy F. Tubbs to employment on and after August 14, 1980; by effectively advising Leroy F. Tubbs on August 19, 1980, that he would no longer be referred for employment as an apprentice; by threatening to malign Leroy F. Tubbs on August 19. 1980; by filing internal union charges against Francis A. Tubbs on September 9, 1980; and by maintaining and en- forcing section 25, item 15, and section 28 of the June 2, 1980, bargaining agreement with the Associated Building Contractors of Lafayette, Inc., Respondent has violated Section 8(b)(1)(A) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 4. The General Counsel has not established by a pre- ponderance of the evidence that Respondent has violated the Act in any other manner alleged in the complaint. THE RENIEDY In order to effectuate the policies of the Act, certain remedial action is necessary. It is appropriate, of course, to require Respondent to cease its discrimination against Leroy F. Tubbs and to make him whole, with interest, for all loses incurred by him due to Respondent's refusal to refer him to employ- ment on and after August 14, 1980. See F. W. Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing & Heating Co., 138 NLRB 716 (1962). and Florida Steel Corporation, 231 NLRB 651 (1977). 4 7 In addition, Respondent should be ordered to cease giving effect to the contract provisions here found un- lawful, and to further cease generally requiring prefer- ence of union members over nonmembers by the em- ployers with whom Respondent contracts. Finally, a cease-and-desist order prohibiting Respond- ent from engaging in the other conduct found unlawful, and requiring it to post the customary notices, is also in 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 48 The Respondent, Local No. 121, Operative Plasterers' and Cement Masons' International Association, La- fayette, Indiana, shall: I. Cease and desist from: (a) Discriminating against Leroy F. Tubbs or any other applicant for employment by refusing to refer them to work available under its employment referral proce- dure in reprisal for their participation in concerted activi- ties proctected by the Act. (b) Maintaining and enforcing collective-bargaining agreement provisions, or other policies, which afford un- 4' Compliance proxceeding will take account of the fact that, as the record shows, Respondent could not reasonably have been expected to refer Leroy Tubbs to certain employers due to past experience 48 In the event no exceptions are filed as provided by Sec 10246 of the Rules and Regulations of the National L.abor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations. he adopted by the Board and become its findings. conclusions, and Order, and all objections thereto shall he deemed waived for all purposes 205 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lawful preferences to union members for purposes of em- ployment. (c) When motivated by an intention to retaliate against employees for engaging in activities protected by the Act, advising employees that they will no longer be re- ferred to employment, threatening to malign employees for engaging in such activities, or preferring internal union charges against them. (d) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action deemed neces- sary to effectuate the policies of the Act: (a) Notify Leroy F. Tubbs in writing that Respondent henceforth will not coerce or restrain him in the exercise of his rights under the Act, and that it will henceforth make employment referrals available to him without regard to his exercise of such rights. (b) Make Leroy F. Tubbs whole for any losses he may have suffered by reason of the discrimination against him as set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its office in Lafayette, Indiana, copies of the attached notice marked "Appendix." 49 Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by an authorized rep- resentative of Respondent, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to members and appli- cants are customarily posted. Reasonable steps shall be taken by to ensure that said notices are not altered, de- faced, or covered by any other material. (e) Notify the Regional Director for Region 25, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations of the Act other than found herein. 49 In the event that this Order is enforced b, a Judgment of a United States Court of Appeals, the words in the notice reading "Posted hb Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 206