Fassbach Electric Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Electrical Workers, Local Union 379 (Fassbach Electric Co.) and Johnny Franklin Teal. Case 11-CB-566 June 30, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On April 11, 1977, Administrative Law Judge Marvin Roth issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions with supporting arguments. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and has decided to affirm the rulings, findings,' and conclu- sions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, International Brotherhood of Electrical Work- ers, Local Union 379, Charlotte, North Carolina, its officers, agents, and representatives, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph l(d): "(d) In any other manner restraining or coercing employees in the exercise of rights guaranteed them under Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In par. I(d) of his recommended Order, the Administrative Law Judge uses the narrow cease-and-desist language, "in any like or related manner," rather than the broad injunctive language, "in any other manner," which the Board traditionally provides in cases involving serious 8(bX2) discriminato- ry conduct. See N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941). Accordingly, we shall modify the recommended Order to require the Respondent to cease and desist from in any other manner infringing upon employees rights. This change is also made in the revised notice. 230 NLRB No. 82 APPENDIX NoTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board has found that we have violated the National Labor Relations Act and has ordered us to post this notice and to carry out its provisions. WE WILL NOT cause or attempt to cause any employer to deny employment to, or in any other manner to discriminate against, Johnny Franklin Teal or any other employee or applicant in violation of Section 8(a)(3) of the National Labor Relations Act. WE WILL NOT refuse to refer Johnny Franklin Teal or any other employee or applicant for employment because they make or file complaints about our referral system, or because of any other arbitrary and unfair consideration. WE WILL NOT threaten employees with reprisal or loss of job referrals because they make or file complaints under our collective-bargaining con- tracts. WE WILL NOT in any other manner restrain or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act, including the right to make or file complaints or grievances under a collective-bargaining contract. WE WILL refer Johnnny Franklin Teal for employment to positions for which he is qualified, on an equal and nondiscriminatory basis with other employees and applicants. WE WILL make whole Johnny Franklin Teal for any loss of earnings he may have suffered by reason of the discrimination against him with interest at 6 percent per annum. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION 379 DECISION STATEMENT OF THE CASE MARVIN ROTH, Administrative Law Judge: This case was heard at Gastonia, North Carolina, on December 14 and 15, 1976. The charge was filed on January 16, 1976, by Johnny Franklin Teal, an individual. The complaint, which issued on March 22, 1976, and was amended on September 2, 1976, and at the hearing, alleges that International 626 IBEW, LOCAL UNION 379 Brotherhood of Electrical Workers, Local Union 379 (herein called the Union or Respondent), violated Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended. The gravamen of the complaint is that the Union violated Section 8(b)(I)(A) by threatening to discriminate against Teal in job referrals, and that since on or about July 17, 1975, the Union has violated Section 8(bXl)(A) and (2) by refusing to refer Teal for employment with Fassbach Electric Co., Inc., Dixie Mechanical Corpora- tion, Ross Electric Company, and K. W. Lail Electric Company (herein called respectively Fassbach, Dixie, Ross, and Lail) because of arbitrary and unfair considera- tions. The Union's answer, as amended, denies the commission of the alleged unfair labor practices. All parties were afforded full opportunity to participate, to present relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Only the General Counsel filed a brief. Upon the entire record in this case and from my observation of the demeanor of the witnesses, and having considered the brief submitted by the General Counsel, I make the following: FINDINGS OF FACT 1. THE RESPONDENT UNION AND ITS AGENTS The Union, which maintains its office and hiring hall in Charlotte, North Carolina, is a labor organization within the meaning of Section 2(5) of the Act. S. Eugene Ruff is the Union's business manager and financial secretary, and in that capacity has, since July 1969, functioned as the Union's managing agent. Margaret Higgins is Ruffs secretary, and has served in that capacity for Ruff and his predecessors for 25 years. Higgins has authority, subject to Ruffs direction and instructions, to refer or recommend applicants or employees for employment through the Union's referral system. Ruff and Higgins are each agents within the meaning of Section 2(13) of the Act, and have been and are now agents of the Union acting on its behalf. 1. THE BUSINESS OF THE EMPLOYERS INVOLVED Fassbach, Dixie, Ross, and Lail are, and were at all times material, engaged in the business of electrical contracting. As employers in the building and construction industry, all are employers engaged in commerce or in an industry affecting commerce within the meaning of the Act. N. LR.B. v. Denver Building and Construction Trades Council, et al. (Gould & Priesner), 341 U.S. 675, 683-684 (1951); Local 20, Sheet Metal Workers Association, AFL- CIO (Bergen Drug Company, Inc.), 132 NLRB 73 (1961). Fassbach and Dixie perform electrical contracting services in North Carolina, and in the course of their respective operations, each annually receives at its North Carolina jobsite locations, electrical supplies and other goods and materials valued in excess of $50,000 which are shipped indirectly from States other than North Carolina. Ross and t Moreover, General Counsel is alleging. in essence, that the Union engaged in a single course of action directed at Teal. As two of the involved employers. considered alone, meet the Board's jurisdictional standards, it would effectuate the policies of the Act to assert jurisdiction over the entire Lail are based in North Carolina. General Counsel does not contend that the operations of either, standing alone, meet the Board's self-imposed standards for the assertion of its jurisdiction. However, all four employers are members of Carolinas Chapter of the National Electrical Contractors Association (herein called NECA), a multiem- ployer bargaining association which is the collective- bargaining agency for its contractor members who employ labor at jobsites in the electrical construction industry. By virtue of their membership in NECA, the four employers are, and have been at all times material, parties to a collective-bargaining contract between NECA and the Union covering such labor. I find that, for the purposes of the Board's jurisdictional standards, NECA and its members constitute a single employer, that their collective operations meet the Board's indirect inflow standard for nonretail enterprises, and that it would effectuate the purposes of the Act for the Board to assert its jurisdiction in this case. Local 3, International Brotherhood of Electrical Workers, AFL-CIO (Atlas Reid, Inc.), 170 NLRB 584, 585 (1968).' 111. THE ALLEGED UNFAIR LABOR PRACTICES A. The Union's Referral System and Teal's Grievance The current collective-bargaining contract between NECA and the Union, effective from June 1, 1975, to May 31, 1976, provides for a referral procedure whereby "the Union shall be the sole and exclusive source of referrals of applicants for employment." The contract requires the Union to maintain an "Out of Work List" of job applicants within each of four priority groups, in chronological order of the dates on which the applicants register their availability for employment. In fact, at least at the times material to this case, the Union maintained a list consisting of only two categories: journeymen and apprentices. Teal is a journeyman electrician. His qualifications, as indicated by an application form filed by him on January 9, 1976, would have placed him no lower than the second priority category provided for under the contract during the times material to this case. Under the contract, an employer may reject an applicant. However, he cannot request a specific applicant, although he may "state ... bona fide require- ments for special skills and abilities," in which case the Union must refer the first person on the list possessing such skills and abilities. Otherwise, with the exception of a requirement that one in each five referrals must be over age 50 (which requirement was not relevant to any of the referrals at issue in this case), the contract provides that applicants must be referred in order of their place on the out-of-work list in their priority group. An applicant who rejects a job or who is rejected for employment may reregister and thereby maintain his place on the list. An applicant who is referred for employment but through no fault of his own receives less than 41 hours' work (i.e., is not discharged for cause), may also reregister and resume case, even if the other two employers were not parties to multiemployer bargaining. Compare, Madison Building & Construction Trades Council. William Arnold et al. (H & K Lathing Co., 134 NLRB 517 ( i961). 627 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his place on the list. Otherwise, upon reregistering, an applicant who has been referred for work and is once again out of work (e.g., has been laid off after working 41 hours or more), must go to the bottom of the list in his priority group. The contract further provides for an appeals committee, consisting of one member appointed by the Union, one by NECA, and a public member appointed by the other two, which is empowered to consider and make a binding decision on any complaint by an employee or applicant for employment concerning the Union's administration of the referral system. Prior to Teal's complaint, the appeals committee procedure had not been involved, at least in the recent past. On June 30, 1975,2 Teal complained to Business Manager Ruff that other employees were being referred to jobs ahead of him. Teal had been on the out-of- work list continuously since December 13, 1974, when he was laid off from a job with Industrial Electric Company. Ruff told Teal, in essence, that he saw the problem in a different light. Ruff informed Teal that five contractors to whom Teal had previously been referred had informed the Union that they did not want Teal back again, because of Teal's alleged excessive absenteeism or tendency to quit a job. Teal expressed disbelief and suggested that an appeals committee be convened. Ruff attempted to dissuade Teal from making such a request. Ruff testified that he told Teal that Teal would have to make his request through Union President Fred Wilson. However, when Teal spoke to Wilson on July 31, Wilson told him that Ruff was responsible for setting up the committee. Teal, who lives in Cheraw, South Carolina, then telephoned Union Interna- tional Vice President E. W. Burnette in Chattanooga, Tennessee, who told Teal to send a letter to Ruff. Teal then sent a letter to Ruff requesting him to set up an appeals committee. Eventually it was Ruff, and not Wilson, who invoked the appeals committee procedure. Ruff did not submit Teal's request to the committee and request a committee hearing on Teal's complaint, until August 27, 1 week after Teal telephoned Ruff to ask whether the committee had been set up. In that telephone conversation Ruff again sought to dissuade Teal from proceeding with his complaint, although the manner in which he did so is largely in dispute and will be discussed, infra. According to Ruff, there was some delay in setting up the appeals proceeding because of the difficulty of obtaining a public member. Ruff testified that it had been assumed that Henry Mummaw, the public member of the board of trustees which administered the contractual fringe benefit funds, would serve on the appeals committee, but that Mummaw indicated that he was too busy to do so. However, Ruff's letter of August 27, invoking the appeals committee procedure was addressed to three ostensible members of the committee, including Mummaw. Thus, Ruff was unaware as of this late date that Mummaw was unavailable. In light of the foregoing evidence, including Ruffs misrepresentation to Teal as to Ruffs responsibility for setting up the appeals committee, and Ruffs 'evident procrastination in the matter, I find that the Union deliberately sought to give Teal a runaround in order to discourage him from invoking the appeals committee or, failing that, to avoid a hearing on Teal's complaint. The appeals committee met on September 23, when it heard Teal's complaint, and on October 16 it issued a written decision in the matter. The committee ruled against Teal, but criticized certain aspects of the manner in which the Union conducted its referral system. As a result of the decision, which came about as a result of Teal's complaint, the Union subsequently made substantial changes in its referral system. As indicated, Teal had telephoned Ruff on August 20 to inquire about the status of the appeals committee. According to Teal, Ruff told him that the committee had not been set up and that Teal would have to see Wilson about it. Teal further testified that Ruff told him: (1) he would see that Teal never worked again in Charlotte; (2) he (Ruff) would do everything possible to hurt him, adding that, if he could, he would take Teal's union card and ticket; and (3) he would laugh Teal out of the appeals committee meeting. (In the interest of brevity, the alleged statements are sometimes herein referred to by the indicated numbers.) According to Teal, he asked for copies of referral slips and other union records, but was told by Ruff that he would get them at the hearing. Ruff, in his testimony denied (1) and (2) above, and gave a somewhat different version of (3). According to Ruff, he told Teal that if he (Ruff) had Teal's work record he wouldn't want to go before the appeals committee, and that if the committee had seen that record on one sheet of paper, they probably would have summoned Teal before an appeals committee. Ruff testified that he told Teal that he had turned the matter over to Union President Wilson, but that they were having difficulty setting up an appeals committee meeting because Public Member Mummaw had resigned. Ruff further testified that he did not remember Teal requesting any records, but that, if Teal had made such a request, he would have been permitted to come to the union hall to examine the referral records in accordance with a standing union policy. General Counsel presented the testimony of Teal's mother, Ella Teal, as corroborative of Teal's testimony. Mrs. Teal testified that, at one point in the conversation, Teal had motioned her to listen in on another phone in their home, and that she heard Ruff make statements (1), (2), and (3). However, at one point in her testimony she admitted hearing only (3). Teal testified that his mother picked up the telephone after Ruff made statement (3). I am not persuaded that Mrs. Teal heard statements (I) and (2). However, I am not satisfied with the credibility of Ruff concerning the conversation, because, as previously indi- cated, Ruff did not know on August 20 that Henry Mummaw would not be available to serve on the appeals committee. In essence, the question of the alleged threats boils down to Teal's testimony versus that of Ruffs. I credit the testimony of Teal, not so much because of the inherent probabilities of their respective versions, but rather, primarily, because, as will be discussed in the next section of this decision, the Union's course of conduct 2 All dates herein are in 1975 unless otherwise indicated. 628 indicated that Ruff was doing just what he threatened to do. B. The Alleged Refusals To Refer Teal Johnny Teal reregistered on the out-of-work list on December 13, 1974, upon being laid off by Industrial Electric Company. On January 30, 1975, the Union offered to refer Teal and his father (also a journeyman electrician), through a sister local in Raleigh, North Carolina, to a job in Plymouth, North Carolina, about 200 miles from their home. They declined the offer because in their view the living costs in Plymouth were too high for the wages they would receive, and Teal resumed his place on the out-of- work list. Teal testified that he was not again offered a referral until October 16. Ruff testified that in early 1975 Teal was offered, but declined, other jobs. Ruffs testimony in this regard will be discussed, infra. However, it is undisputed that Teal retained his place on the out-of-work list, and did not obtain work through the Union's referral system during the period from December 13, 1974, to December 8, 1975, and was not offered any referrals during the period from June 30, when he first complained to Ruff, until October 16, 1975. On the latter date, the day the appeals committee issued its decision, Ruff referred Teal for employment with Bagby Elevator & Electric Company. Bagby was one of the employers who had informed the Union that they would not hire Teal. Nevertheless, Teal was sufficiently desperate for work to give Bagby a try. He went to the jobsite, was refused employment by Bagby's job superintendent, and promptly, that same day, went to the union hall and reregistered for work. Margaret Higgins informed Teal that he would resume his place on the list. Teal was next offered a referral on December 8, which he accepted. He worked for Watson Electric Company from December 8 to 18, when he was laid off because of a reduction in force. Teal reregistered on the out-of-work list, but has not been referred for work since December 1975. The crucial period, for the purposes of this case, is from July 16 (the beginning of the 10(b) period) until December 8, when Teal was referred to Watson. General Counsel contends that, on five occasions during this period, the Union discriminatorily failed and refused to refer Teal for employment. On July 21, the Union referred Fred R. Tweed for work with Fassbach at its jobsite in Hickory, North Carolina, where he worked a total of more than 41 hours. Tweed had been referred to work for Watson Electric on June 16, worked more than 41 hours, but never reregistered on the out-of-work list. On July 22, the Union referred Lacy A. Fowler for work with Dixie at itsjobsite in Spartanburg, South Carolina, where he worked a total of more than 41 hours, from July 22 to August 7, when he was laid off because of a reduction in force. Fowler had been previously referred to Industrial Electric, where he worked a total of more than 41 hours, from January 29 until he was laid off on April 6. Thereafter Fowler worked for Bagby Elevator from May 20 to June 23, and on June 23 he 3 I consider as irrelevant Ruffs assertion that employees who worked in excess of 41 hours, but for a relatively short duration, e.g.. I or 2 weeks. were sometimes permitted to retain their places on the out-of-work list because otherwise they would not have taken such jobs. Assuming, arguendo, the validity of such a practice, if it in fact existed, the Union does not contend IBEW, LOCAL UNION 379 registered on the out-of-work list. During the period of October 17 to 19, the Union referred Price G. Summerville for work with Ross, where he worked from October 19 to November 21. Summerville had registered on the out-of- work list on September 23. On October 22 the Union referred Raymond W. Poteat to Ross, where he worked a total of more than 41 hours from October 23 to November 21. Poteat was not registered on the out-of-work list, and he had worked for Bagby from August 18 to October 3. On October 28 the Union referred Melvin T. Stogner to Lail, in Charlotte, where he worked 4 days. Stogner had worked for Howard Brothers from August 21 to September 12, when he was laid off, and he registered for the out-of-work list on September 9. (General Counsel does not contend that Teal was discriminatorily denied a referral to Howard Brothers, which firm had indicated dissatisfaction with Teal.) The Union's witnesses, Ruff and Higgins, conceded that Tweed, Fowler, Summerville, Poteat, and Stogner were not entitled to priority in referral over Teal by reason of priority group, placement on the out-of-work list, age, skill, or any other criteria recognized by the collective-bargain- ing contract.3 Ruff testified that he referred Tweed, and Higgins testified that she referred the other four employees. According to Ruff, he was out of town when the four were referred. Ruff testified that he never instructed Higgins that Teal should not be referred to Fassbach, Dixie, Ross, or Lail, or to any specific job, or to any job of short duration, and that age and skills were not factors in the referrals. None of the employers had manifested an unwillingness to hire Teal. In view of these admissions, the hopelessly inconsistent testimony of Higgins is enlightening. Higgins variously testified that she did not call Teal because he did not want short-term work, that she could not remember if she tried to call Teal, that she intentionally did not call him, that she did call Teal in proper order on the out-of- work list, and finally broke down and testified that she did not know why she did not contact Teal. According to Higgins, Teal told her that he did want short-term work because he was busy building houses, but conceded that she learned from his sister when Teal finished such work. The work was for Teal's family and Teal finished the last house in June 1975. Higgins further testified that Ross specifically requested Summerville (but not Poteat), be- cause Summerville allegedly possessed qualifications to perform work in a certain classification. Higgins professed to be unable to remember the classification and testified that Ross never identified the qualifications. Her testimony was contradicted by that of Ruff, who admitted that skill had nothing to do with any of the referrals, and was further contradicted by an open letter from John R. Ross of Ross, which was offered by the Union in evidence and accepted by me, with the concurrence of the parties, in lieu of Ross' testimony. Ross stated that on October 17 or 18 he requested "one Journeyman electrician" for electrical installation work which was estimated to last 4 to 5 weeks, and that Mrs. Higgins referred "a Mr. Price Summerville." In light of Higgins' demonstrated lack of credibility, Ruff's that the alleged practice had any relevance to the referrals here involved. Thus, Ruff conceded that Fowler should have gone to the bottom of the list on June 23. All of the five referred employees either registered on the list below Teal, or did not register at all. 629 DECISIONS OF NATIONAL LABOR RELATIONS BOARD admission that skill was not a factor in any of the referrals, and the lack of any corroborative testimony by Lail, I also do not credit Higgins' uncorroborated testimony that she did not call Teal about the Lail job because Lail had requested an employee with a "city card." I also }do not credit her testimony that she did not call him because the job was a short one. Even Ruff admitted that in late 1975 Teal was willing to take any job. In view of Higgins' demonstrated inability to provide a credible explanation why Fowler, Summerville, Poteat, and Stogner were referred ahead of Teal, Ruff's asserted excuse for referring Tweed instead of Teal to the Fassbach job must be viewed as suspect. Ruff testified that he did not refer Teal because Teal and his father had previously declined an offer to work at the Fassbach job (which began in late 1974), because Hickory was too long a drive. Ruff further testified that in early 1975 he also offered them work at the Dixie job in Spartanburg, but that Teal and his father declined the offer for a similar reason. However, neither Ruff nor Higgins testified that Higgins was instructed not to call Teal about the jobs for such reason. Indeed, Ruff testified that Higgins "knows that the procedure is to go through the list taking persons as we come to them, contact them, see if they want to go to work; and send them out." Teal and his father denied that they were ever offered or that they refused work at the Hickory or Spartanburg jobs. I credit their testimony. In view of the fact that Teal had only recently complained to Ruff that he was being passed over for referrals, it is unlikely that Ruff, if he were guided by legitimate motives, would have neglected to call Teal because of something that Teal had said many months before. It is even more unlikely that Higgins would have taken it upon herself to pass up Teal without instructions from Ruff. The inference is warranted, and I so find, that Ruff did not call Teal, and instructed Higgins not to call Teal, because of his complaint about the grievance procedure. I find that the Union deliberately failed and refused to refer Teal for employment by Fassbach, Dixie, Ross, and Lail, in reprisal for his complaint that he was being discriminated against in referrals, and his request for the unprecedented action (which the Union feared), of an appeals committee hearing. The Union thereby violated Section 8(b)(1)(A) and (2) of the Act. Local 513, International Union of Operating Engineers, Hoisting and Portable Local No. 513, AFL-CIO (S. J. Groves and Sons Co.), 199 NLRB 921 (1972). Additionally, in October 1975, the Union was motivated by a desire to punish Teal because the appeals committee decision had forced the Union to change its referral procedures. I further find that Ruff referred Teal to the Bagby job, knowing that he would not be hired, as a thin cover for the Union's discriminatory actions, and as a further act of spite against Teal. But for the discrimination against him, Teal would have been referred for employ- ment with Fassbach instead of Fred Tweed, or failing that, 4 I do not attach any significance to the presence of other names on the document identified by Margaret Higgins as having been used on the out- of-work list during the period from September 5 to 26. The Union did not usually strike or otherwise indicate the names of employees who were called or referred: the list was periodically redrafted, and the circumstances indicate that there was considerable referral and employment activity which was not reflected by any entries on the list. Higgins testified that she works he would have been referred for employment with Dixie instead of Lacy Fowler. Teal would also have been referred to the Ross job in place of Summerville (unless the Fassbach employment continued past September 23, when Summerville registered on the out-of-work list), or failing that Teal would have been referred in place of Poteat who never registered on the list.4 I further find that the Union, by Ruff, violated Section 8(bXIXA) by threatening Teal, in reprisal for his complaint and request for an appeals committee, that Ruff would see that he never worked again in Charlotte and would do everything possible to hurt him. CONCLUSIONS OF LAW 1. NECA and its employer members, including Fass- bach, Dixie, Ross, and Lail are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminatorily refusing to refer Johnny Franklin Teal for employment by Fassbach, Dixie, Ross, and Lail, the Union has caused and attempted to cause employers to discriminate against Teal in violation of Section 8(a)(3) of the Act, and the Union thereby has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(bX2) of the Act. 4. By reason of said conduct and by threatening Teal with reprisal and loss of job referrals because he exercised rights guaranteed by Section 7 of the Act, the Union has been and is violating Section 8(b)(1)(A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Union violated Section 8(bX)(1)(A) and (2) of the Act, I shall recommend that it be required to cease and desist from such violations and take certain affirmative action designed to effectuate the policies of the Act. I shall recommend that the Union be ordered to make whole Johnny Franklin Teal for any loss of earnings he may have suffered by reason of the discrimination against him, computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716, 717-721 (1962). To facilitate the computation and assure Teal equal referral treatment, the Union shall maintain and make available for the Board or its agents, upon request, out-of-work lists, referral cards, and any other documents and records showing job referrals with some 700 to 1,000 applicants, yet the list identified by her as being the September out-of-work list contains the names of only about 90journeymen and 8 applicants. Neither Ruff nor Higgins claimed that any employee was entitled to priority over Teal in connection with the referrals in question. Therefore, as the evidence does not indicate otherwise, I have found that, absent the discrimination against him, Teal would have been referred as discussed above. 630 IBEW, LOCAL UNION 379 and the basis for such referrals of employees, members, and applicants.5 I further recommend that the Union be ordered to post appropriate notices, and to notify Teal in writing that use of the Union's referral system will be available to him on an equal and nondiscriminatory basis with other employees and applicants. 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 recommend- ed: ORDER6 The Respondent, International Brotherhood of Electrical Workers, Local 379, its officers, agents, and representa- tives, shall: 1. Cease and desist from: (a) Causing or attempting to cause any employer to deny employment to, or in any other manner to discriminate against Johnny Franklin Teal or any other employee or applicant in violation of Section 8(a)(3) of the National Labor Relations Act, as amended. (b) Refusing to refer Johnny Franklin Teal or any other employee or applicant for employment because they make or file complaints about Respondent's referral system, or because of any other arbitrary and unfair considerations. (c) Threatening employees with reprisal or loss of job referrals because they make or file complaints under its collective-bargaining contracts. (d) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: I See International Union of Operating Engineers. Local 406. AFL-CIO (New Orleans Chapter, Associated General Contractors of America, Inc.). 189 NLRB 255, 267 (1971). In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become (a) Refer Johnny Franklin Teal for employment to positions for which he is qualified, on an equal and nondiscriminatory basis with other employees and appli- cants. (b) Make whole Johnny Franklin Teal for any loss of earnings he may have suffered by reason of the discrimina- tion against him, in the manner set forth in the section of this Decision entitled "The Remedy." (c) Notify Johnny Franklin Teal in writing that Respon- dent's referral system will be available to him on an equal and nondiscriminatory basis with other employees and applicants. (d) Maintain and, upon request, make available to the Board or its agents, for examination and copying, out-of- work lists, referral cards and any other documents and records showing job referrals and the basis for such referrals of employees, members and applicants, which are necessary to compute and analyze the amount of backpay due Teal, and to assure him equal referral treatment. (e) Post at its business offices, hiring hall, and meeting places, copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 11, after being duly signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 11, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 7 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 631