Operating Engineers Local 478 (Stone & Webster)

OPERATING ENGINEERS LOCAL 478 (STONE & WEBSTER) Operating Engineers Local 478, International Union of Operating Engineers, AFL-CIO (Stone & Webster Engineering Corporation) and Ralph J. Gigliotti. Case 39-CB-526 28 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 24 September 1984 Administrative Law Judge Winifred D. Morio issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed a brief in support of the judge's decision. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Operating Engineers Local 478, International Union of Oper- ating Engineers, AFL-CIO, Hartford, Connecticut, its officers, agents, and representatives, shall take the action set forth in the Order. ' The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings DECISION STATEMENT OF THE CASE WINIFRED D. MORIO, Administrative Law Judge. This case was tried before me on May 23, 1984, in Hartford, Connecticut. The complaint, which was issued on March 20, 1984, by the Officer-in-Charge, Subregion 39, alleged, in substance, that Operating Engineers Local 478, Inter- national Union of Operating Engineers, AFL-CIO (Re- spondent) failed and refused to honor the request of Stone & Webster Engineering Corporation (S & W or the Company) to refer Ralph J. Gigliotti (Gigliotti) be- cause he solicited and encouraged employees to run for the position of business manager of Respondent; because he attempted to remove Elwood L. Metz Jr., Respond- ent's business manager, from office,' because he ran for office as Respondent's business manager and because he engaged in concerted activities for the purposes of col- lective-bargaining or other mutual aid or protection. The ' Metz is also known as Sonny Metz 567 answer filed by Respondent denies the commission of the alleged unfair labor practice. All parties were given a full opportunity to participate in the proceedings, to cross-examine witnesses, to argue orally, and to file briefs. Both parties filed briefs, which were considered. On the entire record in the case and my observation of the witnesses and after careful consideration, I make the following FINDINGS OF FACT 1. JURISICTION The pleadings establish, the parties admit, and I find that S & W is a Massachusetts corporation, engaged as a general contractor in the building and construction in- dustry. Its operations meet the Board's jurisdictional standards for nonretail concerns. II. THE STATUS OF THE LABOR ORGANIZATION The pleadings establish, the parties admit , and I find that Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The parties to this proceeding were involved in a pre- vious case, Case 39-CB-391. In that case Administrative Law Judge James Morton, on January 18, 1984, found that Respondent, on August 31, 1982, through its busi- ness manager, Elwood Metz, "attempted to cause and did cause S & W to remove Gighotti from his job as pump operator on the backup diesel pump without suffi- cient reason and separately because Gigliotti and Mat- tocks had engaged in activities aimed at having Metz re- placed as business manager."2 The facts, as found by Judge Morton, briefly, are the following: S & W were general contractors responsible for the construction of a nuclear power plant in Waterford, Connecticut. The work commenced on the project in 1974 and it is sched- uled to be completed in 1986. At the peak of the oper- ation, in November 1982, there were approximately 3600 employees at the site, of which 110 operating engineers and 75 surveyors were represented by Respondent. In August 1981, S & W assigned an operating engineer, Li- berato (Hank) Della Vecchio to service the backup diesel pump and he worked the second shift from 4:30 p.m. until 2:30 a.m., 7 days a week. Della Vecchio retired in September 1981 and S & W's master mechanic, Carl Mattocks, assigned Gigliotti to work as the operator of the pump on a 10-hour, 7-day-a-week basis until he was removed from that assignment at the Respondent's insist- ence because of his activities against Respondent's busi- ness manager, Metz. Gigliotti had been a member of Re- spondent for 14 years and for about 8 years before 1983 was sergeant-at-arms for Respondent on a slate which was headed by Metz and which had been unopposed. Notwithstanding his position with Respondent, Gigliotti 2 This decision was adopted by the Board on August 31, 1984 274 NLRB No. 81 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in December 1981 prepared and distributed an anony- mous letter in which he criticized Metz for alleged abuse of funds and for allegedly engaging in nepotism. Metz read the letter at a meeting and challenged the writer to run against him in the next election. Thereafter , in June 1982, Gigliotti and Mattocks, who was also a member of Respondent , spoke to several of Respondent 's agents in- cluding, Frank Luciani, and urged them to run against Metz. Luciani told Gigliotti that Metz knew that it was Gigliotti who was the author of the anonymous letter and that "Metz was out to get him ." On August 31, 1981, Mattocks received a telephone call from Metz during which Metz said Gigliotti was making more money than Mattocks or Metz and he wanted Mattocks to report to the Respondent's office. Later that day, Mat- tocks received a call from Respondent 's business agent, during which he was told that the Respondent did not recognize Mattocks as the master mechanic In addition, on that day, S & W received a telegram from Respond- ent which stated that the Union did not recognize Mat- tocks as the master mechanic on the job and which fur- ther stated that an investigation was being conducted to determine whether certain individuals were entering into agreements which personally benefited them in violation of the collective-bargaining agreement. Metz admitted that Gigliotti was one of the individuals referred to in the letter who had entered into agreements which bene- fited themselves . Metz sent a second letter to S & W in which it advised the Company that it was in violation of the collective-bargaining agreement because it was oper- ating a special shift during certain specified hours. The hours referred to were the hours that Gigliotti had worked . The administrative law judge determined that it was Respondent 's burden to demonstrate that "its actions vis-a-vis Gigliotti on August 31, 1982 , were necessary to the effective performance of its function of representing its constituency" and he found that it had failed to do so B. The Election The Respondent stipulated that Metz has been Re- spondent's business manager3 since 1959 and from that point until 1983 he was not challenged for election or re- election In August 1983 Gigliotti headed an opposition slate which ran against , Metz, Benedict Cozzi, and other officers of Respondent An election was held on August 6, 1983, and Gigliotti and those on his slate were defeat- ed. C. The Present Events Article IV, section 3(a), of the collective-bargaining agreement in effect between Respondent and S & W states the following: When the Employer needs additional or new em- ployees, he shall give the Union equal opportunity with all other sources to provide suitable applicants, but the Employer shall not be required to hire those referred by the Union. 9 The business manager is the chief executive officer David Hovey , senior labor relations supervisor for S & W, testified that when the Company needed employees in the crafts represented by Respondent , he called Re- spondent's referral dispatch office and requested the number of emloyees needed and specified the job and time . Hovey claimed that it was the Company's position that it could request specific individuals for a job; how- ever, he had done so only once, in December 1983,4 when he came into the position to make a request. Ac- cording to Hovey, the issue of whether the Company had the right to request specific individuals had been dis- cussed, between representatives of both parties, for some months before January 1984 and he, personally , had dis- cussed the matter , with Benedict Cozzi, referral office manager for Respondent , beginning in December 1983. It was Cozzi's position that the Company did not have the right to request a specific individual and Cozzi requested a meeting to discuss the problem. A meeting was held on January 10, 1984, at the Company's offices with Hovey and Kenneth Stevens, a labor relations supervisor , repre- senting S & W and Cozzi, Frank Luciani , a business agent, and Bob Gates, jobsite steward , representing the Union . During the meeting, according to Hovey, Cozzi agreed that the Company did have the right to request specific individuals for employment but he asked the company representative to assist him with the problem the Union faced, the high rate of unemployment. Cozzi suggested that Hovey provide him with a list of individ- uals who had been employed previously by the Compa- ny and who would be acceptable to it for future employ- ment be by mutual agreement of the parties , rather than by unilateral selection by the Company . The company representatives agreed to these requests Hovey testified that, as a result of this agreement , the Respondent was not required to send the specific individuals requested by the Company . However, the parties, according to Hovey, did not discuss whether the Respondent could send anyone from the list regardless of whether the Company wanted that individual. Notwithstanding the agreement reached at this meet- ing, on January 16, 1984, Hovey called Respondent's re- ferral office, spoke to Cozzi, and requested three heater operators by name, Real Bourque , Ralph Gigliotti, and Ulde Provost . These men had been requested by Robert Nickerson, chief construction engineer for S & W. Cozzi stated that he preferred not to send Gigliotn because he had not been out of work as long as some other members and he also said that Provost was unavailable because he was working another job.5 Cozzi then asked Hovey if he had sent the list of acceptable employees as he had re- quested and Hovey replied that it had been sent. Cozzi said Bourque was available and the two agreed that he would start work that day During the conversation, Hovey told Cozzi the names of the other employees he considered acceptable and they decided that Cozzi 4 At that time Hovey requested four specific individuals for positions as pump operators and the Respondent referred the individuals without any comment s Cozzi testified that, normally , he would honor an employer's request to refer a specific individual if that person had been laid off previously by that employer OPERATING ENGINEERS LOCAL 478 (STONE & WEBSTER) would refer Peter Maddocks and Alfred Cunha, instead of Gighotti and Provost, for employment Cozzi told Hovey that Maddocks and Cunha had been out of work for some time Hovey testified that later that morning Cozzi called him and told him that Bourque was ready to start work at noon but that he had been unable to reach Maddocks or Cunha but he would continue his ef- forts to reach them. Cozzi did not mention Gigiliotti in this conversation, according to Hovey. On the following day Cozzi called Hovey and asked whether the three men had reported to work and Hovey responded that, apparently, they had because he had not received a com- plaint. Although, on the prior day, Cozzi had said that he preferred not to send Gigliotti, he now told Hovey that he had tried to refer the original individuals request- ed by Hovey but he had been able to send only Bourque and Provost because he had been unable to contact Gig- hotti. Cozzi also spoke with Kenneth Stevens, the Compa- ny's labor relations supervisor, on January 16, 1984, at 3:10 p.m. about the Company's request for Bourque, Gig- liotti, and Provost for employment According to Ste- vens, Cozzi told him that Bourque was available for the noon shift and that he was attempting to contact Provost but he would not refer Gigliotti for employment "be- cause he had too much time." During the conversation, Cozzi stated that he had told Hovey earlier that day that he would not refer Gigliotti and he explained that he had tried to refer Maddocks and Cunha in accordance with his agreement with Hovey but he had been unable to reach Maddocks and Cunha had refused the job Cozzi mentioned that he was attempting, therefore, to reach Matthew Piscatelli, but he had been unsuccessful up to that time. About 4:40 p.m. on January 16, 1984, Cozzi again called Stevens and told him that he had spoken to Pisca- telli and he would be available for the 6 p.m. shift but that he had been unable to contact anyone for the mid- night shift. Stevens testified that Cozzi did not tell him in either conversation that he had tried to reach Gigliotti but had been unable to do so. Stevens also denied that Cozzi told him that he would try to reach Gigliotti "with other people who had been similarly laid off a similar period of time." Benedict Cozzi became referral office manager for Re- spondent in August 1983. He was appointed to that posi- tion by Metz. Cozzi also ran on the slate headed by Metz for the position of treasurer of Respondent and was op- posed for that position by a candidate from Gighotti's slate. In addition, in December 1983 Cozzi was appoint- ed to the position of business agent by Metz and he re- ceived a pay increase which was approved by Metz. Cozzi admitted that Metz had the authority to discharge him. Cozzi testified that when he became the referral man- ager he voiced his objections to S & W representative about their practice of requesting employees by name for employment. The practice, according to Cozzi, resulted in some members working on a constant basis while others were unemployed for long periods of time. Cozzi claimed that he had several discussions with Hovey about the problem and as a result, after a meeting held 569 on January 10, 1984, Hovey agreed to supply him with a list of names of those individuals who would be accepta- ble to the Company and he also agreed that they would decide, mutually, who would be hired. According to Cozzi, on January 16, 1984, Hovey called and requested that Bourque, Gigliotti, and Provost be referred for posi- tions as heater operators. Cozzi told Hovey that he did not have a problem with Bourque because he had been unemployed for a long period of time but Provost was working at the time and Gigliotti recently had been laid off. During the conversation, Hovey mentioned the names of the members who would be acceptable to the Company and Cozzi said he would check the list and "get back" to Hovey with names for the two other posi- tions. Cozzi claimed that after this call, he checked the list of names given to him by Hovey with the Respond- ent's referral cards and computer records to determine who was a member or not a member, and who was working or not working, when an individual had been laid off and how much time he or she had worked during the past year After examining the records, Cozzi called Hovey on January 16, 1984, and outlined for him what Respondent's records revealed about the individ- uals that Hovey said would be acceptable to the Compa- ny. According to Cozzi, he told Hovey that Herbert Adams and Scott Adams had been laid off by S & W on September 30, 1983: Harry Adams, James Gervais, Jose Calvos, Charles Lamathia, Paul Tummeil, and Anthony Zaremba were all presently employed by S & W; Real Bourque had been laid off by S & W on August 17, 1983; Arthur Cunha had been laid off by S & W on July 6, 1983, and had 5 weeks work thereafter; Fred Flanagan had been laid off by S & W on April 4, 1983, he had re- fused work in September 1983 because he was working nonunion but he was referred by Cozzi to another job on November 1, 1983, and worked there until November 14, 1983; Gigliotti had worked for S & W from 1982 until september 1983; J. Hackely was employed by Dunn Brothers; Peter Maddocks worked for S & W from No- vember 1, 1981, to December 1982 and had worked 1 month in 1983, Christopher McDonald was expelled from the Respondent in January 1984 for nonpayment of dues; J. McNally had been laid off by S & W on Novem- ber 18, 1983, and recalled to another company on No- vember 28, 1983; Matthew Piscatelli had been laid off by S & W on November 14, 1983; Ulde Provost had been laid off by S & W on May 6, 1983, he had refused work, then agreed to work but did not appear because he was working on a nonunion job until November 14, 1983;6 Art Tubbs was employed; and William Wright had been laid off by S & W on January 13, 1984. Cozzi stated that after he explained these facts to Hovey they agreed that Maddocks and Cunha should be called for the two open positions based on "who was out of work the longest be- cause there was no skill involved in the job. The only prerequisite was past employment with Stone & Webster and names off the list." Cozzi claimed that after he spoke with Hovey, he called Cunha who "politely" refused 6 Cozzi testified that Provost, "really hung me up on a job, took it and then didn't show up on October 5, 1983 and then told me he had been working for A J Pepin, who's a non-union contractor " 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work and he was unable to reach Maddocks Cozzi, without consutation with Hovey, then contacted Fred Flanagan, the individual he decided was the next one "that needed work on the basis of need," although Flanagan had refused Cozzi's offer of work in September 1983 because he was working nonunion and had worked as late as November 1983. Flanagan was not available because he was working at another job. According to Cozzi, when he realized that Cunha and Flanagan were not available and that he had been unable to reach Mad- docks, he called Ken Stevens to tell him about the prob- lem. Cozzi testified about his conversation with Stevens as follows- I explained to him that I had not been able to reach Maddocks yet and that Cunha had refused and Flanagan was unavailable and all of that and he and I agreed that the next people would be, although I was going to keep on trying to reach Maddocks-I don't know if I stipulated that to Ken or not, but the next three-the next three people .,were Mat- thew Piscatelli, Ralph Gigliotti and Ulde Provost, in that order. According to Cozzi, he suggested the three men in that order because that was the order in which they had been laid off by S & W. He called Piscatelli who took the job and he called both Maddocks and Gigliotti sever- al times that afternoon. Cozzi testified that he began to call Gigliotti after 4 p.m. and he continued to call several times between 4 and 5 p.m. but he was unable to reach him. Cozzi testified that he continued his efforts to reach Maddocks and Gigliotti that evening from his home but he was unable to reach either man. Finally, about 7 p.m. he called Provost, spoke with him, and Provost accepted the job. Joyce Nuzzi, Cozzi's secretary, testified, on direct ex- amination, that she recalled that on January 16, 1984, Cozzi asked her for Gigliotti's work record card and she observed that he had it in his hand on that day when he made telephone calls. On cross-examination, she testified that the work cards of members are pulled numerous times every day and that she does not pay particular at- tention when a card is pulled. Although Nuzzi could not remember the name of any member whose card she had pulled within a week or two of the hearing, she testified that she recalled that Cozzi had Gigliotti's card on Janu- ary 16, 1984, because she asked him if she should replace the card in the file cabinet at the end of the day and Cozzi told her that he would be using the card that evening. However, Nuzzi also testified that it was. not unusual for Cozzi to take work cards home with him when he was unable to reach a member during the day. Further, she claimed that Cozzi took other work cards home with him on January 16, 1984, but she could not remember the names of the other men. Nuzzi subsequent- ly, testified that the reason she recalled that Cozzi had Gigliotti's work card January 16, 1984, was because "he was running for office." Elizabeth Cozzi, wife of Benedict Cozzi, testified that during the evening of January 16, 1984, her husband had the work cards of several members in his hand when he made telephone calls When questioned about the names of any of the members mentioned that evening, the only name she could recall was Gighotti. She explained that she recalled Gigliotti's name because knew him from the election and everthing he stuck in my mind."7 She fur- ther testified that her husband frequently brought the work cards of members home with him. Ralph Gighotti testified that at 9 a.m. on January 16, 1984, he received a phone call from Carl Mattocks, the master mechanic at the S & W jobsite Mattocks told him that on that day the Company had requested Re- spondent to refer him for a job. As a result of this call Gigliotti claimed that he did not leave his home until about 12:45 p.m. when he went to the hospital to see his wife who was very ill. He remained at the hospital for about an hour and then he returned to his home. Gig- liotti claimed that he stayed at home from about 1:45 until 6.30 p.m. to be available if he received a call from the hospital 8 Gigliotti stated that he also remained at home in the event that he received a call from the Re- spondent, although, he "really didn't have too much con- fidence in the union hall calling, but I expected maybe they would " Gigliotti testified that he received only one call between 1.45 and 6:30 p.m. that day and that call was from his son and it lasted about a minute or two.9 According to Cozzi, he referred Gigliotti to a job in June 1984. However, the General Counsel claimed that this referral was part of an effort to settle the case. Cozzi denied that he was aware of these settlement efforts and claimed that he referred Gigliotti after discussions with him about his financial difficulties However, Cozzi ad- mitted that this was the only job he referred Gigliotti to between September 1983 and June 1984. The work record cards of the individuals Cozzi claimed that he considered for the positions with S & W establish the following: Fred Flanagan worked from April 1982 to April 1983 for S & W, he refused work on September 9, 1983, because he was working for a non- union contractor, on October 25, 1983, Flanagan came to the office seeking a job and he was referred to a job on November 1, 1983, and worked there for 2 weeks, he was called for the S & W job on January 16, 1983, but he was not at home because he was working another job. Alfred Cunha worked for several companies in 1981 and 1982; he worked for S & W from September 1982 to July 1983; he worked for Arute Bros. for 1 day in July 1983; he worked from September 19, 1983, to October 1983 for another company and he worked for Kowalski Brothers for about 10 days in November 1983, and he re- fused the S & W job. Real Bourque worked from No- vember 1982 to July 1983 for S & W; he refused a job in 7 Counsel for Respondent objected to this testimony on the ground that it was hearsay It was permitted only to establish what Gighotti did on that day However, it should be noted that the Company did request Gigiotti, and the Company's employee requisition form indicates that the three men who were requested were to report to C Mattocks 8 According to Gigliotti, he did not remain at the hospital because doctors were preparing his wife for surgery 8 Gigliotti testified that a few days prior to when this case was sched- uled, initially, for hearing he told Metz that if Metz agreed to give him a job for a year, he would agree not to run for office Metz agreed to give him a job if he "cancelled out" the hearing and agreed not to seek office OPERATING ENGINEERS LOCAL 478 (STONE & WEBSTER) October 1983; and he accepted the LS & W job on Janu- ary 16, 1983. Gigliotti was requested by S & W in 1981 and he worked for that Company from January 1981 to September 13, 1983 . Peter Maddocks worked for S & W for 1 month in 1982; he worked for another company for about 3 weeks between September 1983 and October 1983 and for a third company for several weeks between October 1983 and December 8, 1983 . Matthew Iscatelli worked for S & W from June 1981 to September 14, 1983, and he accepted the job for S & W on January 16, 1983. Ulde Provost worked for S & W from January 1983 to May 1983, then worked for a nonunion contrac- tor from July 1983 to November 1983, on January 6, 1983, he called Respondent to ask for work and on Janu- ary 16, 1984, he accepted the job at S & W.10 Discussion There are some facts in this record which are undis- puted . The first one is that on January 16, 1984 , Donald Hovey, S & W's representative, requested Benedict Cozzi, Respondent's representative, to refer Real Bour- que, Ralph Gigltotti, and Ulde Provost for employment with the Company The second undisputed fact is that Bourgue and Provost were referred . The third undis- puted fact is that Cozzi told both Hovey and Stevens on January 16, 1984, that he would not refer Gigltotti. The General Counsel contends that the refusal to refer Gig- liotti was because of his activities in opposition to Metz, Respondent's business manager The Respondent ad- vances several contentions, ( 1) the General Counsel failed to show that Respondent had any animus to dis- criminate against Gigliotti with respect to referral, (2) the General Counsel failed to prove that Respondent dis- criminately failed to refer Gigltotti for employment, and (3) Respondent did not refer Gigliottt because of legiti- mate business reasons. The facts in the earlier case establish that, beginning in June 1982, Gigliottt began to discuss openly the possibili- ty of forming a slate to run in opposition to the slate headed by Metz . This effort by Gigliottt to change the incumbent leadership was the first challenge to that lead- ership in over 25 years. It did not go unnoticed and it brought swift retaliation as found in the earlier case. However, it did not force Gigliotti to give up his efforts to change the entrenched leadership . These efforts con- tinued and culminated in an election being held on August 6, 1983, with Gigliotti heading a slate in opposi- tion to the slate headed by Metz and which included Cozzi. It is well established that activities of employees designed to oust to incumbent union leadership and to elect different union officers are concerted activities pro- tected by Section 7 of the Act. l i A union violates Sec- tion 8(b)(1)(A) of the Act by restraining or coercing an employee because of an employee 's dissident union ac- tivities. 12 When union conduct adversely affects employ- 10 The cards indicate that all these individuals have been members of Respondent for several years However, the work records produced for Gigltotti cover the years from 1970 to 1983 The work records for the other individuals are for the years of 1978 or 1979 to 1983 11 New York City Taxi Drivers Local 3036 (Taxi Maintenance Corp), 231 NLRB 965, 966 (1977) 12 Boilermakers Local 686 (Boiler Tube Co), 267 NLRB 1056 (1983) 571 merit opportunities , it visits economic sanction upon an employee within the definition of the words "restraint and coercion" as used in Section 8(b)(1)(A).13 Thus, it is clear from the cited cases that the activities engaged in by Gigliotti in 1982 and 1983 were concerted activities protected by the Act Respondent claims that the decision in the earlier case is irrelevant to this proceeding because the first case in- volved conduct by Metz and the instant case involves conduct by Cozzi. Respondent also contends that, al- though there may be suspicions that Cozzi acted under Metz' control , there is no proof that he did, and mere suspicion cannot substitute for proof Respondent cited several cases in support of its position that suspicion is not proof. The facts in those cases, however, are not similar to those in the present case In Kings Terrace Nursing Home, 229 NLRB 1180 (1977), the record failed to reveal that the supervisor involved in the alleged dis- criminatory conduct had control over the nursing sched- ules which were changed or control over the individual who prepared the schedules. In Boilermakers Local 40 (Babcock-Wilcox), 248 NLRB 1058 ( 1980), the Board found that there were no records to establish when the last person was referred and it, therefore , concluded that the administrative law judge had relied on the equivocal testimony of a witness about referrals in order to find a violation. In the instant case it is obvious that Metz has control over Cozzi, he appointed him to the position he holds, and he can discharge him. Secondly, in this case there are records to establish who was referred and when they were referred . There is no need to rely on in- ference or suspicions. Respondent also asserts a 10(b) defense with respect to the events which occurred in Case 39-CB-391. Thus, Respondent claims that conduct in that case "occurred far beyond six months from the filing and service of the Charge herein so that consideration of those events is barred by Section 10(b) of the Act." Respondent also claims that "the Board has held Section 10(b) a bar where evidence marshaled from within the six-month period is not substantial and the merit of the allegation in the complaint is shown largely by reliance on the earlier events." However, it is well established that Respond- ent's present conduct can be considered in light of its earlier illegal conduct.14 Moreover, the evidence within the 10(b) period is not insubstantial and the merit of the allegations in the present is not shown "largely" by reli- ance on the earlier events. The fact is that Gigliotti con- tinued his dissident activities into the 10 (b) period In the events of 1982 Gigliotti's opposition to Metz was con- fined to the discussion stage and when Metz became aware of these discussions his reaction was immediate and directed to Gigliotti 's employment status. In 1983 Gighotti 's dissident activities had passed the discussion stage, he had actually challenged the incumbent leader- ship, including Metz and Cozzi , in an election in August 1983. Respondent's argument that it had no reason after the election to retaliate against Gtgltottt ignores an im- 13 Electrical Workers IBEW Local 262 (Arthur Paul Jr), 264 NLRB 251, 253 (1982) 14 Steelworkers Local 8061, 233 NLRB 858 (1977) 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD portant fact. An interference with an employee's employ- ment status by a union is a constant reminder to present or future dissidents of the consequence of their activities Respondent in January 1984 was presented with the op- portunity to give such a warning when S & W requested Gigliotti for employment Cozzi refused to refer him. The record establishes that the elements of a prima facie case have been established.15 Thus, the record dis- closes that Gigliotti was engaged in protected activities, Respondent had full knowledge of this fact and it op- posed these activities and had preivously expressed its opposition by interfering with Gigliotti's employment status. However, it is the position of Respondent that it had legitimate reasons for not referring Gigliotti . I am not convinced that its reasons were legitimate The record does establish that Cozzi objected to the company prac- tice of asking for specific individuals. However, when the Company again asked for specific individuals on Jan- uary 16, 1984, only Gigliotti was not referred. The testi- mony of Hovey and Cozzi establishes that Cozzi told Hovey that he refused to refer Gigliotti because he had not been out of work as long as other members Thus, Hovey testified that Cozzi said "he preferred not to send Gigliotti out since Mr Gigliotti had not had as much time on the bench, that means idle-not working " Cozzi testified that he examined Respondent's work records "to see who was out of work the longest so we can do what we agreed to do." Cozzi also testified that he told Hovey that he did not want to refer Gigliotti because "he was recently laid off." The brief filed by counsel for Re- spondent, however, contends that Cozzi refused to refer Gigliotti because he was not out of work as long as others and because he had been consistently employed. The difference betwen who "was recently laid off" and who had worked more consistently is significant. Cozzi testified he examined the work records of the members and he concluded that Bourque, Maddocks, and Cunha were the ones to be referred. Hovey had no reason to doubt this assertion . i 6 Bourque had worked from No- vember 1982 to August 17, 1983, for S & W; prior to that time he had worked for several other companies in 1981 and 1982. He had refused a job offer in October 1983. Notwithstanding this refusal, Cozzi agreed to refer him to the S & W job. Cunha had worked fairly consist- ently in 1981, had worked for S & W from September 1982 to July 6, 1983, had refused a job in July 1983 but, thereafter, had worked for several weeks. His last em- ployment ended on November 21, 1983. Thus, Cunha had worked approximately the same amount of time as Gigliotti had in 1983 and had been employed from Sep- tember 1983 to October 1983 and thereafter for 2 weeks in November 1983. Gigliotti's last date of employment was in September 1983. It is obvious that if criteria used to refer an individual for work was, as Cozzi claimed, the employee who was out of work the longest, it was Gigliotti and not Cunha who should have been referred 15 Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Or 1981) 16 Millwrights Local 2834 (Atlantic Plant Maintenance), 268 NLRB 150 (1983) Flanagan, the next individual contacted by Cozzi, had re- fused work in September 1983 because he was working for a nonunion contractor. Flanagan's last day of work was on November 14, 1983, also several months after Gigliotti had been laid off Piscatelli, who had worked consistently from June 1981 to September 1983 and who was laid off about the time when Gigliotti was laid off, was referred to the S & W job, although he had not been requested Provost, who was laid off in November 1983, also some months after Gigliotti had been laid off, was referred to the S & W job Thus, the record establishes that Cunha, Flanagan, and Provost all had worked more recently than Gigliotti. Moreover, even if the individuals were referred on the basis of who had worked less con- sistently, the record establishes that Cunha and Provost had both worked approximately the same amount of time in 1983 as Gigliotti had worked. Cozzi, apparently realizing that his explanation for re- fusing to refer Gigliotti would not withstand scrutiny, next claimed that he did attempt to reach Gigliotti on the afternoon and evening of January 16, 1984. Hovey credibly testified that Cozzi did not mention to him on January 16, 1984, that he had made any effort to reach Gigliotti. Stevens emphatically denied that Cozzi re- ferred to any efforts to reach Gigliotti in either conversa- tion he had with him on January 16, 1984, although one of those conversations occurred after 4 p.m. when Cozzi claimed that he began his attempts to reach Gigliotti. I do not find that either Hovey or Stevens was vague or evasive about this issue, contrary to assertions by Re- spondent. It is Cozzi's testimony on this issue which is less than candid. Based on my observation of Cozzi, and an evaluation of his entire testimony, I do not find that he attempted to contact Gigliotti on January 16, 1984. Further, I am not persuaded by the testimony of Ms Nuzzi or Mrs Cozzi that Cozzi called Gigliotti on that day. Their testimony, at best, establishes that Cozzi had Gigliotti's card in his hand when he made phone calls. It does not establish that he called Gigliotti. Moreover, it is significant that neither witness could recall the name of any other individual that Cozzi called on that day nor could Ms. Nuzzi recall the name of any other member whose card she had pulled within a week or two of the hearing. The Board has stated that when a union deprives an employee it represents of employment opportunities it must justify that it did so for the benefit of the members of the bargaining unit 17 In the instant case, it is clear that when Respondent refused to refer Gigliotti, al- though it referred the two other requested members, it refused to do so not for the benefit of the membership but for the benefit of the leadership. The Board has stated that "when the circumstances do not involve an objection of furthering, requiring, or con- ditioning employment on union membership as such, the illegality, if any, must be found in those actions by a union that infringe on the employment relationship which are arbitrary, invidious, or irrelevant to legitimate union interests . i 8 In the instant case, I find that Re- 1 7 Electrical Workers IBEW Local 262, supra 18 Ashley, Hickham-Uhr Co, 210 NLRB 32 (1974) OPERATING ENGINEERS LOCAL 478 (STONE & WEBSTER) spondent refused to refer Gigliotti for reasons which were arbitrary, invidious, or irrelevant to legtimate union interests. Accordingly, I find that Respondent has failed to "act in an even-handed manner" with regard to Gig- liotti and thereby has violated Section 8(b)(1)(A) of the Act.19 CONCLUSIONS OF LAW 1. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 2 S & W is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 3 By refusing to refer Ralph Gigliotti to employment from January 16, 1984, Respondent has breached its duty of fair representation in violation of Section 8(b)(1)(A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY In order to effectuate the policies of the Act, certain remedial actions are necessary. It is appropriate to require Respondent to cease its dis- crimination against Ralph Gigliotti and to make him whole, with interest, for all losses incurred by him due to Respndent's refusal to refer him to employment on and after January 16, 1984. See F. W. Woolworth Co., 90 NLRB 289 (1950), Isis Plumbing Co., 138 NLRB 716 (1962), and Florida Steel Corp., 231 NLRB 651 (1977). Further, a cease-and-desist order prohibiting Respond- ent from engaging in such conduct in the future and re- quiring it to post customary notices is also necessary. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed20 ORDER The Respondent, Operating Engineers Local 478, International Union of Operating Engineers, AFL-CIO, Hartford, Connecticut, its officers, agents, and represent- atives, shall 1. Cease and desist from (a) Discriminating against Ralph Gigliotti or any other applicant for employment by refusing to refer them for work under its referral procedures in reprisal for their participation in concerted activities protected by the Act. (b) 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. i9 Plasterers Local 121 (Associated Building Contractors of Lafayette), 264 NLRB 192, 195 (1982) 20 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations , the findings, conclusions, and recommended Order shall , as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 573 (a) Notify Ralph Gigliotti 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 Ralph Gigliotti 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, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its office in Hartford, Connecticut, copies of the attached notice marked "Appendix "21 Copies of the notice, on forms provided by the Officer-in-Charge, Subregion 39, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to members and applicants are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 21 If 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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT refuse to refer Ralph Gigliotti or any other applicant for employment under our referral proce- dures in reprisal for their participation in concerted ac- tivities protected by the Act. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL make Ralph Gigliotti whole, with interest, for any losses he may have suffered by reason of our dis- criminatory refusal to refer him for employment. OPERATING ENGINEERS LOCAL 478, INTERNATIONAL UNION OF OPERAT- ING ENGINEERS , AFL-CIO