Northern California District Council Of Laborers And Laborers International Union Of North America, Local Union No. 294 (Hayward Baker Co.)

278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Northern California District Council of • Laborers and Laborers International Union of North America, Local Union No. 294 (Hayward, Baker Company) and Eric Breniman Northern California District Council of_ Laborers and Laborers International Union ' of North America, Local Union No. 294 (Granite-Ball- Groves) and Michael Leon Jensen. Cases 32- CB-1428 and 32-CB-1432 26 April 1985 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 29 October 1984 Administrative Law Judge Jerrold H. Shapiro issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The General Counsel also filed limited cross- exceptions and a supporting brief, and Charging Party Jensen filed limited cross-exceptions. 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, i and conclusions. - The judge found that the Respondent Local Union (Local) violated Section 8(b)(1)(A) of the Act by filing internal union charges against the Charging Parties, employees Breniman and Jensen, because they filed unfair labor practice charges with the Board, and that the Respondent District Council (District Council) violated - Section 8(b)(1)(A) by scheduling internal union trials, trying, judging, and admonishing the Charging Parties for filing unfair labor practice charges.2 We agree with these findings. On 16 May and 18 May 1983,3 respectively, Breniman and Jensen filed their original unfair i 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 The judge's statement in sec I,A,2, par 1. of his decision that no one had started campaigning for union office in February 1983 is incorrect The uncontradicted record evidence discloses that for several months preceding February Charging Party Jensen had been passing out litera- ture showing he was a candidate for union office 3 The judge recommended dismissing allegations that the Local also violated Sec 8(b)(l)(A) of the Act by making employee Jaster's future job referrals dependent on his political support for Local President Leon- ard (the judge found no threat was made), and that it violated Sec 8(b)(1)(A) and (2) by refusing to dispatch Charging Party Breniman be- cause he filed unfair labor practice charges against it No exception was filed regarding the latter dismissal, and we affirm the former dismissal 3 All dates are 1983 unless otherwise specified labor practice charges against the Respondent Local Union.4 The same days the Respondent Local Union President Leonard received' the charges,5 he filed charges with the District Council alleging that the employees had violated certain provisions of the Respondent's International and local constitutions and/or collective-bargaining agreements with the Employers. In support, Leon- ard enclosed copies of the Charging Parties' unfair labor practice charges, and stated in a letter accom- panying Breniman's charge that "this member filed charges against me with the National Labor Rela- tions Board." On 25 May the District Council notified the Charging Parties that they would be tried Thurs- day, 16 June, at its Emeryville, California office, and that it would not reimburse them for any of the costs incurred in attending. The Charging Par- ties testified on their own behalf at the 16 June trial. On 24 June the District Council's trial board issued its decision, finding the Charging Parties guilty of, inter alia, failing to exhaust the Local's internal remedies before filing unfair labor practice charges with the Board, and admonishing them to recognize their obligation to use the provisions of the Respondents' constitutions and working agree- ments. In its cross-exceptions, the General. Counsel con- tends, as it did before the judge, that the Respond- ents should be ordered to reimburse the Charging Parties for wages they may have lost in attending the 16 June trial as well-as for travel and other ex- penses. Charging Party Jensen also excepts on this ground. Relying on Transit Union Division 825 (Transport of New Jersey), 240 NLRB 1267, 1271 fn. 24 (1979), and Television Wisconsin, 224 NLRB 722, 781 (1976), the judge refused to grant the General Counsel's proposed remedy. The judge stated, however, that such a remedy would restore the Charging Parties as nearly as possible to the eco- nomic position that would have existed absent the Respondents' unlawful activity, and requested that the Board "reconsider its remedies in cases of this nature." The General Counsel contends that the Charging Parties are entitled to reimbursement of their lost wages under Frank Mascali Construction, 251 NLRB 219, 224 (1980), enfd. 697 F.2d 294 (2d Cir. 1982), and to recovery of travel and other expenses 4 Both employees' charges alleged that the Respondent Local Union's referral procedures violated Sec 8(b)(1)(A) of the Act s The Respondent received Breniman 's and Jensen 's charges on 18 May and on 23 May, respectively 275 NLRB No. 48 LABORERS NORTHERN CALIFORNIA COUNCIL (BAKER CO) under Baptist Memorial Hospital, 229 NLRB 45' (1977), and similar Board decisions. The Respondents argue the Board should disre- gard the judge's remarks concerning the proposed remedy, and that, in any event, a reconsideration of the remedy issue would require reopening the record. Section 10(c) of the Act empowers the Board to order "such affirmative action . . . as, will effectu- ate the policies of the Act" against employers or unions who have committed unfair labor practices. This clause has been interpreted as giving the Board wide discretion in selecting appropriate rem- edies to achieve the Act's ends.6 In ordering reme- dies for • violations of employees' protected rights,. the Board seeks to undo the effects of the unlawful conduct by restoring the situation "as nearly as possible to that which would have obtained but for the illegal discrimination."- - Despite its broad remedial authority, the Board in Transit Union, supra, refused to grant the Gener- al Counsel's request for.-travel and other expenses incurred by an employee member in defending- against the respondent union's unlawful "intrauniori charges. - Likewise, in Television Wisconsin, supra, 224 at. 781, the Board affirmed the judge's 'denial of the General Counsel's and the charging party's request for reimbursement of legal -expenses incurred by employees in defending against the union's retalia- tory damage suit brought against them in state court. The General Counsel and the charging party argued that the union's retaliatory lawsuit had im- posed an indirect fine on the employees by requir- ing them to hire legal counsel. The judge rejected: the argument, stating, as follows: Unlike a fine collected by the Union, the legal expenses incurred by the individual defendants did not accrue to the Union. In the light of the' above- and the • prevalent "American rule"- against providing legal expenses to the prevail- ing party in a lawsuit from the loser [Alyeska Pipeline Service Company v. Wilderness Society [421 U.S. 240 [(1975)]], I reject the Charging Party's contention that. legal -expenses incurred in the civil action should be equated io'fines for remedial purposes. [Footnote omitted.] The General Counsel asserts here that the issue of travel or litigation expenses addressed in Transit Union and Television Wisconsin should be analyzed separately from the question whether the Charging, Parties may recover lost wages, the latter remedy s Phelps Dodge v NLRB, 313 U S 177 (1941) Id at 194 Accord NLRB v Teamsters Local 396 (United Parcel Serv- ice), 509 F 2d 1075, 1079-80 (9th Cir 1975) 279 being clearly supported by Frank Mascali, supra. We agree. In Transit Union and Television Wisconsin, the Board apparently was not presented with, and clearly did not address, the issue of lost wages re- sulting from the union's unlawful. action. In Frank Mascali, however, the Board upheld the judge's finding that the respondent union violated Section 8(b)(1)(A) and (2) by filing and processing internal union charges against employees in retaliation for their intraunion activities and filing of unfair labor practice charges against the union, and ordered the discriminatees be made whole for any resulting loss of wages or other benefits. - More generally, in cases where a union unlawful- ly refuses "to refer or clear employees for work8 or causes an employer to discharge or otherwise dis- criminate against employees, for unlawful reasons9 the Board has consistently ordered backpay to make the aggrieved parties whole for, any losses of wages and other benefits resulting from the union's unlawful conduct. We believe that the same princi pies should apply to the instant case where the Dis- trict Council 'scheduled the Charging Parties' trial during worktime and did not reimburse the Charg- ing Parties for-the hours they missed in attending. Accordingly, we 'will order the Respondents to make the Charging Parties whole for any loss of wages and other benefits they may have suffered by attending the District Council's trial board pro- ceeding on 16 June. Concerning the General Counsel's request for travel and other expenses, our recent decision in Corbesco, supra, is instructive. In Corbesco, the Board affirmed the judge's finding that the re- spondent union unlawfully refused to refer an em- ployee for work because he was not a union member. 'The Board found that the employee in- volved had, on the implied advice of the respond- ent union, traveled to Florida to reinstate his union membership, and the Board specifically agreed with the judge that the- respondent union be re- quired to reimburse the employee's travel expenses, finding "a sufficient•nexus" between the discrimina-, tory conduct and the Florida trip expenses to war- rant the remedy.1 ° s Radio Officers (A H Bull Steamship ) v NLRB, 347 •U S 17, 28-33, 52-55 ( 1954), Carpenters Local 953 (Corbesco), 272 NLRB 70 ( 1984), Painters Local 1178 (Roland Painting), 265 NLRB 1341 (1982) ° Radio Officers (A H Bull Steamship) v NLRB, supra at 24-27, 52, Marble Polishers Local 31 (Standard Art), 258 NLRB 1143. 1146-47 (1981) , 10 Member Hunter, dissenting, found the evidence insufficient to estab- lish the "nexus" referred to above. because, inter alta, the respondent union never suggested the employee travel to, Florida, and because he did not interpret the union business manager's statement that he could not help the employee as implying that the employee should travel to Flori- . Continued 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Charging Parties here, like the employee in Corbesco, apparently incurred travel expenses as a direct result of the Respondent's unlawful conduct. Specifically, the District Council required the Charging • Parties to appear in Emeryville for a trial proceeding designed to retaliate- against them for filing unfair labor practice charges and offered them no reimbursement for their costs. We also find relevant cases involving an employ- er's filing of a coercive or . retaliatory lawsuit against employees who have filed unfair labor practice charges against it. In Power Systems' 1 the employer filed a civil suit for malicious prosecution against a discharged employee who had filed unfair labor practice charges with the Board. The Board analogized the lawsuit to an unlawful union fine, stating that, "just as it has been found to be a viola- tion of Section 8(b)(1)(A) for a union to fine a member for filing charges with the Board, we find that Respondent's lawsuit-is an [unlawful] attempt to penalize [the employee] for filing - charges."12 Concerning the remedy, the Board found that "in order to place [the employee] in the position he would have been absent Respondent's 8(a)(4) and (1) violations, we shall order Respondent to make [the employee] whole for all legal expenses he in- curred in the defense of Respondent's lawsuit." 13 (Footnote omitted.) In view of the Board's express analogy to 8(b)(1)(A) cases in finding the 8(a)(4) violation, we find it equally appropriate to grant a remedy here corresponding to that provided in Power Systems. There is no valid basis for distinguishing between making an employee whole for legal expenses in- curred, in defending against an employer's retaliato- ry lawsuit and reimbursing an employee for travel and other expenses incurred in resisting retaliatory internal union charges.14 - da Member Hunter finds the "nexus " present in the instant case, howev- er; as the District' Council directly and unambiguously informed the Charging Parties of their required appearance in Emeryville on 16 June 11 239 NLRB 445 (1978) Accord J W Rhodes Department Stores, 267 NLRB 381 (1983), United Credit Bureau of America, 242 NLRB 921 (1979), enfd 643 F 2d 1017 (4th Cir 1981) Although such cases arise under Sec 8(a)(4)'s eicpress prohibition against employer discrimination or discharge of employees for filing charges under the Act, the Board construes Sec 8(b)(1)(A) as extending similar protections to persons who file charges against labor organiza- tions Power Systems, supra at 448, Operating Engineers Local 138 (Charles S. Skura), 148 NLRB 679 (1964) 12 Power Systems, supra at 449 13 Id at 450 Although nonremedy aspects of the Power Systems doc- trine were rejected in Bill Johnson's Restaurants v NLRB, 461 U S 731 (1983), the Supreme Court stated, at 747 - - If a violation is found, the Board may order the employer to reim- burse the employees whom he had wrongfully sued for their attor- ney's fees and other expenses It may also order any other proper relief that would effectuate the policies of the Act 29 U S C § 160(c) (Footnote omitted ) 14 The Board has 'also required an employer to make whole an em- ployee for legal expenses incurred in defending himself upon his arrest and conviction for violating an unlawful no-solicitation rule, Baptist Me- Accordingly, we shall require the Respondents to reimburse the Charging Parties for lost wages and benefits, as well as travel and other expenses, resulting from their appearance before - the trial board on 16 June, and shall issue a new remedy, order, and notice to employees.1 s REMEDY Having found that -Respondent Local and Re- spondent `District Council have engaged in certain unfair labor practices, we shall order them to cease and desist and to take certain affirmative action de- signed to effectuate the policies of the Act. Respondent Local having unlawfully filed inter- nal union charges against Breniman and Jensen, and Respondent District Council having unlawfully scheduled trials, tried, judged, and admonished Breniman and Jensen, we shall require them to remove from their files all references to the unlaw- ful disciplinary actions and to notify Breniman and Jensen in writing that they have done so and that the disciplinary action will not be used against them in any way. We shall also order the Respond- ents jointly and severally to make whole Breniman and Jensen for any loss of earnings and other bene- fits they may have suffered as a result of Respond- ent's unfair labor practices and for any travel or other expenses they may have incurred by attend- ing the Respondent District Council's trial board proceeding on 16 June in Emeryville, California.' 6 Backpay shall be computed as prescribed in F W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). ORDER The National Labor Relations Board orders that A. Respondent Laborers International Union of North America, Local Union No. 294, Fresno, . California, its officers, agents, and representatives, shall 1. Cease and desist from mortal Hospital, 229 NLRB 45, 46 (1977), and in defending against an un- lawful injunction action, Liberty Mutual Insurance Co, 235 NLRB 1387 (1978) is We overrule Transit Union and Television Wisconsin to the extent in- consistent with today's decision Contrary to Television Wisconsin, we find no basis for applying the "Amehcan" rule against providing legal ex- penses to the prevailing party in a lawsuit, to preclude the remedy in the instant case In Alyeska Pipeline, 421 U S 240, 258-259'(1975), the Su- preme Court pointed out that the rule would not apply "when the losing party has 'acted in bad faith, vexatiously, wantonly or for oppressive rea- sons "' We find that the Respondents' conduct fits well within the stated exception 16 As we are unable conveniently to ascertain the distance between the Charging Parties' jobsite and Emeryville, we deny the General Counsel's request to take administrative notice that 200 miles separates the two points, and leave the matter to compliance LABORERS NORTHERN CALIFORNIA COUNCIL (BAKER CO) 281 (a) Filing internal union charges against employ- ee-members for filing unfair labor practice charges with the Board. (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Rescind the internal union charges filed against - Eric- Breniman and -Michael Jensen on 16 May 1983 and 18 May 1983, respectively, and jointly with Respondent District Council and sev- erally make whole Breniman and Jensen for any loss of earnings and other benefits they may have suffered, and for any travel and other expenses they may have incurred as a result of attending the Respondent District Council's trial board proceed- ing on 16 June 1983 in Emeryville, California, in the manner set forth in the remedy section of this decision. _ (b) Remove from its files any references to the unlawful charges and notify Breniman and Jensen in writing that it has -done so and that it will. not use the charges against them in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all records necessary to analyze the amount of its liability under the terms of this Order. (d) Post at-its meeting halls, offices, hiring halls, or any places where it customarily posts notices to its members in Fresno, California, copies of the at- tached notice marked "Appendix A."17 Copies of the notice, on forms provided by the Regional Di- rector for Region 32, after being signed by the Re- spondent Local's authorized representative, shall be posted by the, Respondent Local immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to members are customarily posted. Reasona- ble steps shall be taken by the Respondent Local to ensure that the notices are not altered, defaced, or covered by any other material. (e) Sign and return to the Regional Director suf- ficient, copies of the notice for posting by Granite- Ball-Groves and Hayward Baker Company, if will- ing, at all places where notices to employees are customarily posted. (f) Notify the Regional Director in writing within 20' days from the date of this Order' what steps the Respondent Local'has taken to comply. II 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 " B. Respondent Northern California District Council of Laborers, Emeryville, California, its of- ficers, agents, and representatives, shall 1. Cease and desist from (a) Scheduling for trial, trying, judging, and ad- monishing employee-members for filing unfair labor practice charges with the Board. (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Rescind the unlawful trying, judging, and ad- monishing of Eric Breniman and Michael Jensen for filing unfair labor practice charges with the Board and jointly with Respondent Local and sev- erally make whole Breniman and Jensen for any loss of earnings and other benefits they may have suffered, and for any travel or other expenses they may have incurred as a result of attending its trial board proceeding on 16 June 1983 in Emeryville, California, in the manner set forth in the remedy section of this decision. (b) Remove from its files any references to its unlawful conduct and notify Breniman and Jensen -in writing that it has done so and that it will not use the trials against them in any way. (c) Preserve and, on request, make available to the Board or its s agents for examination and copy- ing, all records necessary to analyze the amount of its liability under the terms-of this Order. (d) Post at its offices in Emeryville, California, copies of the attached notice marked "Appendix B."18 Copies of the notice, on forms provided by the Regional Director for Region 32, after being signed by the Respondent District Council's au- thorized representative, shall be posted by the Re- spondent District Council immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to members are customarily posted. Reasona- ble steps shall be taken by the Respondent District Council to ensure that the notices are not altered, defaced, or covered by any other material. (e) Sign and return to the Regional 'Director suf- ficient copies of the notice for posting by Granite- Ball-Groves and Hayward.Baker Company, if will- ing, at all places where notices to employees are customarily posted. - (f) Notify the Regional Director in writing within 20 days from the date'.of this Order what steps the Respondent District Council has taken to comply. - _ , i a ,See fn 17, above V 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A NOTICE To EMPLOYEES AND 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 ordered us to post and abide by-this notice. WE WILL NOT, file internal union charges against our employee-members for filing unfair labor.prac- tices with the National Labor- Relations Board. WE WILL: NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section.7 of the Act. WE'WILL rescind the internal union charges we filed against Eric Breniman and Michael Jensen on 16 May 1983 and 18 -May' 1983- respectively, and WE WILL jointly with the Respondent -'District Council and severally make 'whole Breniman and Jensen for, any loss of earnings and other benefits they may have' suffered, plus interest,- and 'for any travel and other expenses they may have incurred as a. result, of attending the Respondent District Council's trial board proceeding held in connection with the unlawful, internal -union charges, on 16 June 1983 in- Emeryville,- California. WE WILL remove from our 'files `any references to the unlawful charges and WE WILL notify Eric Breniman and Michael --Jensen in = writing that we have done so and that we will not use the' unlawful charges against them in, any way'" LABORERS INTERNATIONAL UNION OF NORTH AMERICA, LOCAL UNION No. 294 , - •; f ` - , APPENDIX B NOTICE To EMPLOYEES AND'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 ordered us to post and abide by this notice. WE ,WILL NOT- schedule - for - trial,' try, judge, or admonish our: employee-members I for filing unfair labor practices with the, National L'abor' Relations Board. WE WILL -NOT in any like' or related manner. re- strain or coerce you in the. exercise-; of the ' rights guaranteed you by Section 7 of the Act. - WE WILL rescind the unlawful trying,' judging, and admonishing 'of Eric Breniman, and Michael Jensen, and WE WILL jointly with Local 294 and severally make whole' Breniman and Jensen for any loss of earnings and other benefits plus interest, and for travel and other expenses -they -may have in- curred as a result of attending our. trial board pro- ceeding on 16 June 1983 in Emeryville, California. WE WILL remove from our files any references to our unlawful conduct and WE WILL notify Eric Breniman and Michael Jensen' in writing that we have done so and that we will not use the unlawful proceedings against them in any way. _ NORTHERN CALIFORNIA DISTRICT COUNCIL OF LABORERS DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO, Administrative Law Judge. The hearing in this case,-held May 1, 1984, is based on unfair' labor practice charges filed by Eric'Breniman and Mi- chael 'Jensen against Laborers 'International Union of North America, Local' Union No. 294 (Respondent Local- Union) and Northern California District Council of Laborers (Respondent Council,'- collectively Respond- ent Unions). On May 16, 1983, Breniman filed the charge in Case 32-CB-1428 against Respondent- Local Union, On -May 18, 1983, Jensen' filed the charge in Case 32- CB-1432 against Respondent 'Local Union. These charges were amended July 19, 1982, by,, among 'other things, naming Respondent Council 4s'a charged party. Thereafter the Regional Director of the- National Labor Relations Board (Board), Region -32,- on behalf of the Board's Gerieral'Counsel issued a consolidated complaint in this proceeding 'on July 28, 1983, which was amended November 16 and 23, 1983, alleging that the Respondent Unions-have engaged in unfair labor practices within the meaning • of Section- 8(b)(1)(A) and (2) of the National Labor Relations Act. More specifically the complaint as amended alleges that Respondent Local Union violated Section 8(b)(1)(A) by telling an employee that he should vote for Respondent's president in the next .local union election in return for having been preferentially dis- patched for employment, violated Section 8(b)(1)(A) by - filing internal union charges with Respondent Council against Breniman and Jensen because they filed unfair labor practice charges against, Respondent Local Union, and, .violated Section 8(b)(2).and (1)(A) by. refusing to dispatch Breniman to a job because he filed, an unfair labor practice charge against Respondent Local Union and/or because of other bad faith, -unfair or invidious reasons. The complaint alleges that Respondent Council violated Section 8(b)(1)(A) by citing Breniman and Jensen to appear before. a trial board of Respondent Council to answer • the above-d`e`scribed internal union charges, by :finding them guilty of engaging in the, con- duct • alleged in Respondent Local Union''s charges, and by admonishing them for 'engaging - in the conduct. Re- spondent Unions filed answers which denied that they violated the Act as alleged and, as amended, affirmative= LABORERS' NORTHERN CALIFORNIA. COUNCIL (BAKER CO.) ly urged that the Board -defer exercising its jurisdiction in this matter to the grievance-arbitration machinery of the governing collective-bargaining agreements.I On the entire record, from my observation of the de- meanor of the witnesses, and having considered the postheanng briefs, I make the following FINDINGS OF FACT 1. THE ALLEGED UNFAIR LABOR PRACTICES A. The Evidence 1. Background Respondent Unions represent employees employed on a hydroelectric power project- (Helms Project) being de- veloped by Pacific Gas & Electric Company , in .the mountains east of, Fresno, California. The general con- tractor for the elms Project is Granite-Ball-Groves. One of the contractors on the Helms Project, was ,the Hayward Baker Company which from, approximately March 1983 through approximately July 1983 performed certain ground modification work there. Respondent Local Union, a constituent local of Re- spondent Council, has geographical jurisdiction over the laborers work being done at the Helms Project. Granite- Ball-Groves and Respondent Council are parties to two collective-bargaining agreements: the 1983-1986 Tunnel Master Agreement and the 1983-1986 Laborers Master Agreement. Hayward- Baker Company and Respondent Council are parties to the 1983-1986 Tunnel Master Agreement. These collective-bargaining agreements in- clude exclusive hiring hall provisions, pursuant to. which Granite-Ball-Groves and Hayward Baker -Company hired the laborers they used on the Helms Project through Re- spondent Local Union's hiring hall., Respondent Local Union's, president and field representative, Billy Leonard, was primarily responsible for dispatching the laborers to the several employers on the Helms Project with con- tracts with Respondent Council and for administering these contracts. 2. President Leonard allegedly informs Richard' Jaster'that he should vote for Leonard in the next= union election'' in return for having been preferentially dispatched - On the date of the hearing in this case, May 1, 1984, President Leonard was actively campaigning ,to, be -re- elected to his position. as',president, of the Respondent Local -Union in an election to. be held in the immediate future.2 But in February 1983 Leonard had not started i In-their answers Respondent Unions admitted that they are labor or- ganizations-within the meaning of Sec 2(11) of the Act Also at: the start of the hearing, Respondent Unions admitted the factual-allegations of the amended complaint, which establish that the two employers herein, Granite-Ball-Groves and Hayward Baker Company, each meet one of the Board's applicable discretionary j urisdictional standards and are employ. ers engaged in commerce within the meaning of Sec 2(6) and (7) of the Act I therefore find that it would effectuate the policies-of the Act for the Board to assert its jurisdiction over the alleged unfair labor practices herein - 2 The date of the election was scheduled to be decided at the May 7, 1984 membership meeting ' . , , ' , 28 his reelection 'campaign nor is there evidence that anyone else was campaigning to be elected for union office at that early date.'- - ' ' On February"24,•1983, Richard Jaster began work for Granite-Ball-Groves at the Helms Project as a miner. When the employer hired him for this position do Febru- ary 23, 1983, Jaster was not a member-of Respondent - Local Union nor was he registered on the out-of-work list maintained'by Respondent Local Union's-hiring hall. On that date Jaster 'went' to the Granite-Ball-Groves offfce•at the Helms Project and asked the Company's job superintendent, Pat Hoover, for a job. In response to 'Hoover's questions, Jaster stated that he was qualified to do miner's work and that, although he was'hot a member of -Respondent Local Union, he had enough money to join the Union but could not afford to do so until he knew that he. had a job. Hoover told Jaster- that he would begin work for the Company the next day and that he should go immediately to the Respondent Local Union's hiring, hall and join the Union and that the Com- pany's dispatcher would telephone the Union's dispatch- er,and ask for, Jaster by name.3 - On February 23, 1983, pursuant to the job superintend- ent's instructions, Jaster went to Respondent Local Union's liiring hall. He filled out' the necessary paper- work to join the Union and paid his union dues and fees and, after waiting in the' hiring hall for approximately 3 hours, the.Union's dispatcher, President Leonard, on re- ceipt of the Employer's referral request for Jaster, filled out a referral slip.and gave the'slip to Jaster who took it to the 'Employers,the next day when he commenced working. All of the foregoing, is undisputed. In dispute is the conversation between,Jaster and Leonard when Leonard handed him the referral slip. I shall evaluate the conflict- ing testimony of Jaster and Leonard concerning their conversation:- ^` - - • - Jaster's testimony is as follows: ' After' I had got `my dispatch, when I was getting ready to -leave, I \was talking to Billy [Leonard] a little bit, and he told me that he had done me a favor by allowing tree -to be hired this way and go The hiring hall provisions of Granite-Ball-Groves contracts with Re- spondent Council permit the-emphyer to request a job applicant by name to do miner's work without regartto the order of that applicant's regis- tration on the hiring hall's out-ofwork list However, the contractual hiring hall provisions specifically pnvide that the applicant must be reg- istered on the hiring hall's out-of-Mork list and be qualified to. 'do the work Thus sec 7B(13) of the'MasterTunnel Agreement provides in per- tinent part that \ [Tlhe individual employer may specifically request that a particular . named workman who was registerti in a hiring hall of a local union be furnished to him to perform wirk as [a miner] and the Local Union will furnish such workman ti. the individual employer in ac- cordance with such request, wtthoutt:egard to the order of registra- tion of the' workman , provided that sich person is registered on the employment list of the appropriate 1601 union of the Union and has qualified himself for work in this classiicatibnl Under the circumstances the testimony of^Respondent Local Union's business manager and secretary-treasurer, Chester Mucker; that the Master Tunnel Agreement states that an emtoyer can ask for 'an appli- cant by name even if the applicant is not regispred on Respondent Local -Union's out-of-work list, is false • 284 . DECISIONS OF NATIONAL- LABOR RELATIONS BOARD to work like that when there were so many mem- Hayes Baker Company, and Jensen by - Granite-Ball- bers on the board, and he pointed to the board [re- ' Groves. - - ferring to the out-of-work register]. And he said, Breniman's May 16,'1983 unfair; labor practice charge you know, that there were'elections,coming up and • . alleges '- that Respondent Local Union violated Section for me to remember that the Union had done me- a 8(b)(1)(A) because. favor, by allowing me to join and go to work in the same day. I told him, "well, I.probably won't-be in During the six month period immediately preceding' this area come election time,. so it won't make any the filing of this charge, the above-named labor or- difference if you have. my vote or not." And he said ganization, 'through its officers, agents and repre- I'd be back-I told him I'd be back up north sentatives, has 'interfered with, restrained, and co- by then because I don't live here. I just ,came to erred Eric Breniman and other registered out-of- work at this one job as long as I could. He said work members- in the exercise of their Section 7 there'was going to be a good ten years worth of rights by giving job referrals in exchange for politi- work '-in these mountains and that most likely' I cal support rather than according to their place on would-be. back someday, and to remember that the - the Union's out-of-work list. ` union had done me a favor: Jensen's May '18, 1983 unfair labor practice charge 'al- Leonard testified that when he gave 'Jaster ,his job re- leges that Responde'nt Local Union violated Section ferral slip that, "I just told him that, I explained to him •g(b)(1)(A) of the Act'by dispatching persons for employ- what-where io go, what to' do, 'and I gave-explained ment "in violation of its hiring hall rules, in 'violation of to him the copies, the white copy goes to the employer, its collective-bargaining agreements with the employers and the yellow copy stays.-with-on his'person so he can • .' and based on'arbitrary, irrelevant and invidious con- have it for his records." Leonard specifically denied stat- siderations." ' ing that he was ;doing Jaster a favor or -that' he talked On May 18, 1983, immediately on receipt 'of Breni- with Jaster about ;the number of people registered on the man's unfair labor practice charge, Leonard; acting in his out-of-work list or that he mentioned anything about an capacity as the president and field representative of Re- election. spondent Local Union, wrote to George Goodfellow, the I credit Jaster's above-described, testimony and reject secretary-treasurer of the Respondent `District- Council, Leonard's denial oftthe remarks that Jaster attributed to that he desired to bring 'charges' against Breniman ""for him, because when they testified about,the disputed con- violation of Article 16-Section 2 of the Laborers' Inter- _versation Jaster's demeanor was 'good, whereas Leon- , . national Union Constitution'and "under Article 3-Sec- ard's was poor. Also Jaster was a.disinterested witness. tion 1-Paragraph (d) and Article 3-Section 3-Para- There is no evidence that faster' was a friend of either of , graph` (d) . for 'violation of the Laborers" Uniform Local the Charging Parties or was otherw>se sympathetic -with a Re- Union Constitution." In support of his charges Leonard their efforts to unseat, the incumbent -officials, sympathetic enclosed a copy of the May 16, 1983 unfair labor prac- spondent Local Union. Nor is there, evidence that Jaster tice charge filed by Breniman with the Board and stated otherwise had reason to be ,hostile ,toward the Respond- •`to' Goodfellow that "[o]n May' 16, 1983 this member filed ent Local Union and/or its President Leonard or was in • charges against me with the National Labor Relations fact hostile toward them.. Quite,,the, opposite there is - Board, he alleged that during the -last 6 months, that I every reason to suppose, that Jaster, 'at the time he gave had violated Section 7." his affidavit-to the Board in June1983 and when he tests- On May 23, 1983, immediately on receipt of Jensen's fled in this proceeding, was frierdly disposed toward Re- unfair labor practice charge, Leonard, acting in his ca- spondent Local Union and Leonard inasmuch as Leon- pacity as president and field representative of Respond- ard had promptly complied [with 'Granite-Ball-Groves' ent Local Union, wrote -to George Goodfellow, the sec- request and referred faster to a job. retary-treasurer of the Respondent District Council, that 3. President Leonard frleth'nternal union charges he desired to bring charges against Jensen "for failure to against Eric 'Breniman and Mike Jensen; , Respondent Council rrbcesges these charges 4 After the'General Counsel and.Respondent Unions presented their allegedly because Breni>an and Jensen filed unfair cases and -argued orally, I'noted that the constitutional provisions re- ferred to in the internal union charges brought against the Charging Par- 1abor practice'chargesagainst Respondent Local - , ties were not in evidence, whereupon the General Counsel asked that a anion • _ ' document be admitted into evidence, G C Exh 10, which she stated that she'believed contained the relevant constitutional provisions Respondent On May 16, 1983,. Charging Party Breniman filed his Union's lawyer questioned-the authenticity of this document and also ob- original unfair labor practice charge in . this, proceeding jected to its receipt on-the basis of untimeliness I sustained Respondent against • Respondent •Local Union ! and it was actually Union's objections The General-.Counsel in her posthearing brief asks served on the Union v4ay 18, 1983.; On May 18, 1983, that the hearing be reopened so that the General Counsel may.submit evidence concerning the language.of the constitutional provisions under Charging Party Jensen filed his. original, unfair labor which Breniman and Jensen -were charged and tried I deny this motion .practice .charge •-rn; ti is proceeding against -Respondent for the reason that it does not involve newly discovered evidence Nor 'Local Union and rtwas actually, served on -the Union are,there equitable considerations present which persuade me that-the May 23, 1983, Brenman and'Jensen are members of Re- General Counsel be,.permitted to present evidence-which should have I been presented during the General Counsel's case-in-chief, or at the very spondent Local Unbn and during. the time material were least sometime before the parties had concluded their presentation-of the employed as labor.'rs at-the Helms Project, Breniman by evidence and argued orally • i - - LABORERS NORTHERN CALIFORNIA COUNCIL (BAKER CO) Y_ comply with the Laborers' International Constitution, under Article 16, Section 2" and "under Article 3, Sec- tion 1, Paragraph (d) and Article 3,.Section 3, Paragraph (d) for. failure to comply with the ,Laborers' Uniform Local Union Constitution" and "for violation of Section 3, Paragraph 17 and : 18 under the Laborers ' Master Agreement, also Section 7, Paragraph 17 and 18 of the Tunnel Master Agreement."5 In support of these charges Leonard enclosed a copy of Jerisen's unfair labor prac- tice charge filed against the Respondent. Local Union on May 18, 1983. On May 25, 1983, George Goodfellow, in his capacity as the secretary-treasurer of Respondent Council, wrote Breniman and Jensen as follows. RE: Union Trial Charges Dear Sir and Brother: The [Respondent Council] has received charges against you by Brother Billy R . Leonard, member of Local 294, copy of which you have received. This is to officially notify you that 'the [Respond- ent Council's] Trial Board has set the date of trial for Thursday, June 16, 1983, at [time] in the [Re-' spondent Council's] office, 1900 Powell Street, Suite 365, Emeryville, CA 94608. If you fail to appear, you will tried in absentia and notified of the outcome of the hearing. The [Respondent Council] will 'not be responsible for any costs incurred by you in attending this trial. On June '16, 1983, the Respondent Council' s trial board convened as scheduled . Breniman and Jensen testi- fied on their own behalfs'before the trial board. On June 24, 1983, Respondent Council's trial board issued its decision in the form of identical letters ad- dressed to Breniman and Jensen signed by each of the members of the trial board The decision read as follows: Following are the findings of the [Respondent Council's] Trial Board in the matter of the charges filed by Brother Billy. Leonard. . . In the testimony given the accused admitted that he did not. avail himself .of the provisions of, Sec- tions 3(b), 17 and 18 of the Laborers Master Agree- ment and Section 7(b), 17 and 18 of - the Tunnel Master Agreement, and failed to exhaust the reme- dies provided therein: In violation of Article 16, Section '2 of the Laborers International Union Con- stitution . The Trial Board finds the accused . . guilty of the charges filed, and admonishes the accused to recognize his obligation and right as a member to utilize the provisions of the Constitutions and work- ing agreements of'the Laborers Union.' 5 Sec 3B(17) and (18) of the Laborers Master Agreement and sec 7B(17) and. (18) of the Tunnel Master Agreement provide in 'pertinent part that "any person aggrieved by the operation of the hiring hall shall submit his grievance . to. the permanent hiring hall neutral arbitrator" within a certain number of days after the occurrence of the grievance, and further provides that the Arbitrator shall have full power to adjust the grievance, and his decision thereon shall be final and binding upon the person submitting the grievance and all parties hereto 285 4. President Leonard's alleged refusal to dispatch Breniman because he filed an unfair labor practice - charge On May 12, 1983, Respondent Local Union dispatched Breniman to the Helms Project to work as a general la- borer on the day shift for Wismer & Becker, one of the project's contractors. He was employed by Wismer & Becker until May 26, 1983, when he quit his employment and on the same day was dispatched' by Respondent Local Union's hiring hall to the project toi work for Hayward Baker Company as a miner on the graveyard shift. He was dispatched to this job from Respondent Local Union's hiring hall by Billy Leonard who, besides being the Union's president and field representative, also works as a dispatcher and was the dispatcher primarily responsible for dispatching workers to the Helms Project. Jerry Nichols, an office administrator for the Hayward Baker Company, who was responsible for re- questing laborers from Respondent Local Union's hiring hall, was the Hayward Baker Company official who spoke to' Leonard on May -26 about Breniman's employ- ment. There is a significant conflict between Leonard's testimony and Nichols' testimony about their May 26, 1983 conversation which resulted in Breniman's dispatch. Their conflicting testimony is set forth and examined hereinafter. However, first I note that it normally takes approximately '3-1/.2 hours for a person to drive to and from Respondent Local Union's hiring hall `and the Helms Project and that the contract between Respondent District Council' and the Hayward Baker Company, which governs the employment of laborers by Hayward Baker on the project, provides in pertinent part that each person who is dispatched to an employer shall ' receive from Respondent Local Union a written referral slip in- dicating ' the name,' address, social security account number, type of job, date ofemployment, and referral and that the referral slip is to ' be' given by the person dis- patched to an employer representative' at the jobsite. Nichols, ,anwitness for the'General Counsel, on direct examination testified that he telephoned Leonard at ap- proximately 10:30 a.m.'and'asked that Leonard dispatch to'the employer several laborers, whom Nichols -asked for by name. One of the persons named by Nichols was Breniman , whom Nichols indicated he wanted to start work that day on the graveyard shift. Nichols further testified that he asked. Leonard if Breniman's wife could pick up Breniman's referral slip and bring it to Breniman so that Breniman, after finishing work that day for Wismer & Becker at 3.30 p.m., ` could be off work for 8 hours before starting working on the graveyard shift that day for Hayward Baker . Leonard, according to Nichols, replied by stating, "I cannot- do this this, time" and ex- plained, as Nichols testified: "I'm having a problem,with Eric' [Breniman] -and Mike Jensen due to another suit that I'm involved' in, or something-I'm not positive of exact-litigation; whatever it' was,'- that they were having problems with Mike Jensen and Eric Breniman involved in something and that ' he-would use this against them." The conversation ended with Nichols stating, "okay, no problem." Because Breniman was unable to get the nec- essary referral slip that day, Nichols -testified that Breni- 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD man' could not begin 'work that day (May 26) on the graveyard shift but instead commenced work the next day (May 27) on the graveyard shift. Leonard, a witness for Respondent Local Union, testi- fied that there was only one conversation between Leon- ard and Nichols on May 26, 1983, and that it took place between 9 :30 and 10 a.m., when Nichols telephoned and asked Leonard to dispatch several persons , whom he named, to the Helms Project and that one of the persons he asked for was Breniman. Leonard further testified that with respect to Breniman 's dispatch Nichols asked, "Is there any way that you can send Breniman's dispatch to our office 'in the mail?" Leonard's reply, according to his testimony, was: "No, sir. I've never done that . I'm not going to start now because ' we run a business here. I don't know if Eric Breniman's in that office or not . : . if he comes down here and I hand him that dispatch per- sonally, myself, I know its the gentleman"" and "that is the only way I'll dispatch him." Leonard specifically denied stating 'to Nichols that Leonard was having prob- lems with Breniman and Jensen or that he said anything about a lawsuit or that Nichols mentioned Breniman's wife or asked Leonard to give Breniman's wife Breni- man's referral slip to bring to the jobsite. Lastly Leonard testified that later during the day, May 26, 1983 , between 3 and 4 p.m., that Breniman came 'to Respondent Local Union's hiring hall and asked whether Leonard had a work call for him, that Leonard answered in the affirmative and wrote a referral slip which he handed to Breniman: with instructions to keep one copy and give the other copy to the employer and that this ended the conversation. This referral slip (R. Exh. 4) in- dicates that Leonard noted that,Breniman was' to report to work for Hayward Baker on May 26, 1983, on the graveyard shift.6 I reject Nichols' description of his May 26, 1983 con- versation with Leonard 'about Breniman's referral for the reason that Nichols' testimonial demeanor was poor and Leonard's was good, when they testified about this sub- ject. Furthermore, as described infra, Nichols' testimony in certain significant' respects was inconsistent and inher- ently incredible and was inconsistent' with what he told the Board's General Counsel in the affidavit he submitted during the investigatory stage. of this case As described supra, on direct examination Nichols tes- tified in effect that he had one conversation with Leon- ard about Breniman's May 26, 1983 referral slip and that it took place at approximately 10:30 a.m' when Nichols asked whether Breniman's, wife could pick up the refer- ral slip at the Union's office and bring it to the jobsiie, thus saving Breniman from making the 34 /2 hour trip to the Union's office and enabling him to begin work for the employer that night In response Leonard stated,,ac- cording to Nichols' testimony, that Leonard and 'the Union were having problems with Breniman and Jensen involving some sort of a "suit" and that because of this Leonard would not allow Breniman's wife to' take the re- ferral slip. On cross-examination, however, Nichols'gave 6 The above description of Leonard's May 26, 1983 conversation with Bremman is based on Leonard's undenied testimony Breniman did not testify a different description of-what occurred. "He testified-that on May 26, 1983; he had two separate conversations with Leonard about- Breniman 's referral slip.' The first conversation, he testified, took place between 10:45 and 11 a.m. and that he asked Leonard whether one of the other workers being referred to the project by the Union that day could bring Breniman's referral slip to the project and that, in refusing this request, Leonard told Nichols that he was having a problem with Breniman and Jensen involving "some type of a suit." Nichols fur- ther testified that later the same day between 2:30 and 3:30 p m. he again telephoned Leonard and stated that Breniman's wife was in town and asked whether Leon- ard could give Breniman's referral slip to his wife to bring back to the project, so that Breniman could start work that night, and that Leonard replied by stating: "You know we talked about it. I just can't do it." Not only does Nichols' testimony that he had two conversations with Leonard, on, May 26, 1983, about Breniman's referral slip differ from his earlier testimony, but the affidavit Nichols submitted to the Board's Gener- al Counsel in the investigatory stage of this case refers only to one such' conversation. Moreover, the explana- tion iii the affidavit attributed by Nichols to Leonard for refusing to allow Mrs. Breniman or one of the other workers to bring Breniman's referral slip to the project does not jibe with Nichols' testimony Nichols testified that Leonard's refusal was expressed in terms of a prob- lem the Union was having with Jensen and Breniman concerning' some sort of a "suit," whereas in his affidavit Nichols stated that Leonard expressed his refusal in these terms: "Leonard said I have to go by the rules and make him pick it up because if I don't he'll use it against me." Nichols offered no explanation for the inconsistency be- tween the words attributed to Leonard in Nichols' affi- davit and testimony Lastly, the circumstances reveal that Nichols' testimony that he asked Leonard whether Breniman's wife could pick up Breniman's referral slip at the Union's office was inherently incredible. Logically Nichols could not have made this request of Leonard be- cause, on the day in question, it is undisputed that Nich- ols did not have the slightest idea of where Mrs. Breni- man was visiting in Fresno, California, the location of Respondent Local Union's hiring hall, or when she in- tended to return to the project, and did not have the slightest idea of how to reach her. Nichols, failed to ex- plain why he would have asked Leonard to give the re- ferral slip to Mrs. Breniman when Nichols had no way of contacting Mrs. Breniman to ask her to go to the Union's hiring hall . It is for all of the foregoing reasons, especially, includ- ing my impression that demeanorwise Leonard was a more credible witness than Nichols when they testified about Breniman's May 26, 1983 referral slip, that I have credited Leonard's and rejected Breniman's testimony 7 I r In crediting Leonard's testimony over Nichols' I have considered Nichols' status as a disinterested witness and the fact that during cross- examination Leonard falsely testified that on May 26, 1983, he was with- out knowledge of the unfair labor practice charges filed by Breniman and Jensen Nevertheless,- for the reasons set forth herein I am persuaded that Nichols was an incredible witness and that relatively speaking Leonard was the more credible of the two LABORERS NORTHERN CALIFORNIA COUNCIL (BAKER CO) therefore find that on May 26, 1983, when Nichols re- quested that Leonard refer Breniman, that Nichols asked whether Leonard would mail Breniman's referral slip to the Employer's office and that Leonard replied by stat- ing that he could not do this because it was contrary to the Union's usual procedure which required that the person being dispatched pick up the referral, slip person- ally. As I have found supra, the governing collective-bar- gaining agreement herein provides that, before referring a new hire to a jobsite, Respondent Local Union must give the new hire a referral slip to transmit to the em- ployer's 'representative. The testimony of President Leonard and Chester Mucker, Respondent Local Union's business manager and secretary-treasurer, establishes that as a matter .of policy the Local Union requires that a new hire pick up the referral slip in person before start- ing work and that the reason for this policy is to. pre- clude workers who use the Union's hiring hall from fraudulently using other workers' names. The only ex- ception to this policy occurs on the rare occasions when employees have been laid off by an employer and shortly thereafter the same employer recalls them back to work. `Nichols"corroborated Leonard's and Mucker's testimo- ny that it was the usual policy of the Local Union to re- quire that a new hire personally pick up his referral slip to transmit to the employer before starting work and that in fact the Hayward Baker Company would not'permit a new hire to begin work prior to the Employer's receipt of the referral slip. However, during his direct examina- tion Nichols testified that during his approximately 3-1/2 months of employment with Hayward Baker there were two instances when Leonard permitted referral slips to be transmitted to the Employer by persons other than the new hires themselves. He testified that the first such instance took place in the dead of winter and involved one or two .persons who lived in the immediate vicinity of the Helms Project or were already at the site of the project. According to Nichols, the reason Leonard al- lowed this deviation from the Union's usual policy was because the hazardous winter driving conditions ex- tended the drive from the project to the Union's office and back from the usual 3-1/2 hours to 5-1/2 hours.8 Re- garding the second instance where Leonard allegedly permitted a new hire to start work who did not personal- ly pick up his referral slip, Nichols, when questioned about the specifics of this instance, in effect testified that there was no such second instance Rather, he testified that he was referring to the May 26, 1983 above-de- scribed episode involving Leonard's refusal to send Bren- iman's referral slip to the jobsite via someone other than Breniman. But during cross-examination when asked whether between the first instance which took place in the dead of winter and the May 26 instance involving Breniman, there was another situation when Nichols asked Leonard for permission to allow a new hire to commence work even though the new hire had not per- a On cross-examination Nichols inconsistently testified that the reason Leonard at this time allowed a deviation from the Union's policy of re- quiring that new hires personally pick up their own referral slips was that the employer at that time was "gearing up, hiring a lot of people " 287 sonally picked up the referral slip from the Union's hiring hall, Nichols testified: "I made the request a couple a, three times, but it's-I do not remember;! it is pretty vague with me." I find, assuming that Nichols' above-described testimo- ny is believable,9 it establishes that the Union once devi- ated from its usual procedure of not allowing new hires referred to the Helms Project to go to work without per- sonally picking up their referral slips from the Union and that the reason for this isolated deviation from its usual policy was that it was in the dead of winter and since it was in the dead of winter that the driving conditions be- tween the project and the Union's hiring hall were haz- ardous, thus making it difficult for the new hires who were already at the site of the project to drive down the mountain to the Union's office and back. B. Discussion and Conclusionary Findings 1. Whether the issues raised by the complaint should be deferred to the grievance-arbitration provisions of the governing collective-bargaining agreements Section 7B(16) and (17) of the Tunnel Master Agree- ment and section 3B(16) and (17) of the;Laborers Master Agreement, the governing collective-bargaining agree- ments in this case; read in pertinent part, as follows: (16) Selection of applicants for referral to jobs pursuant to this agreement shall be on a non-dis- criminatory basis and shall not be based on, or in any way affected by, union membership, by-laws, rules, regulations, constitutional provisions, or any other aspect or obligation of union membership, policies or requirements. (17) Any person aggrieved by the operation of the hiring hall shall submit his grievance to the per- manent hiring hall neutral arbitrator provided that such submission is made in writing stating the rea- sons for the grievance, within 10 working days after the occurence of the grievance. The arbitrator shall have full power to adjust the grievance and his de- cision thereon shall be final and binding upon the person submitting the grievance and all parties hereto . . . . the costs: of arbitration shall be borne equally by the Employer and Union regardless of who the Local Union on individual employer is. Respondent Unions urge that each of • the complaint's unfair labor practice allegations are cognizable under the terms 'of the above-described - contractual hiring hall grievance-arbitration procedure and should be resolved pursuant to those provisions. 10 Accordingly, Respondent 9 As was the case with his testimony about Bremman's May 26,- 1983 referral, Nichols' testimonial demeanor was pooh when he testified about the Union's alleged deviations from its usual policy of requiring new hires to personally pick up their referral slips before starting work 10 There is no dispute that the complaint's allegations pertaining to Jaster's referral and the hiring hall discrimination against Breniman are cognizable under the hiring hall grievance-arbitration provisions con- tained in the governing collective-bargaining contracts However, with Continued 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Unions, citing United Technologies Corp, 268 NLRB 557 (1984), urge the Board to defer the exercise of its juris- diction in this case to the above-described contractual grievance-arbitration provisions dealing with hiring hall grievances. The General Counsel urges that deferral is inappropriate with respect to any of the complaint's alle- gations because the interests of the aggrieved employees are in conflict with the interests of the Respondent Unions and that, in any event, the complaint's allegations dealing with Breniman and Jensen are not deferrable since they involve the issue of whether Respondent Union treated them, as alleged in the complaint, because they filed unfair labor practice charges with the Board I agree with the General Counsel's position for the follow- ing reasons The Board, subsequent to United Technologies, held that complaint allegations that an employer-respondent violated Section 8(a)(4) of the Act for discharging or otherwise discriminating against employees because they filed charges with the Board would not be deferred to the parties' contractual grievance-arbitration machinery International Harvester Co., 271 NLRB 647 (1984). The reason for this, the Board stated, is that these allegations involve the question of employees' access to the Board's processes, an issue which is solely within the Board's province to decide. In the instant case the complaint in- sofar as it pertains to Charging Parties Breniman and Jensen alleges- that Respondent Unions violated Section 8(b)(1)(A) and (2) of the Act by engaging in the conduct alleged in the complaint because Breniman and Jensen filed unfair labor practice charges with the Board. Thus, based on the Board's decision in International Harvester, I am of the view that deferral with respect to the. allega- tions of the complaint involving Charging Parties Breni- man and Jensen would not be appropriate.' t - Regarding the allegation that Respondent Local Union violated Section 8(b)(1)(A) by telling job applicant .Taster to vote for Respondent Local Union's president in the next local union election in return for having been, pref- erentially dispatched for employment, an issue unrelated to the complaint's allegations pertaining to Breniman and Jensen, I am of the opinion, for those reasons set forth hereinafter, that it would not be appropriate to defer this allegation to the parties' contractual grievance-arbitration machinery because Jaster's interests conflict with Re- spondent Local Union's interests, and for this additional reason it would also not be appropriate to defer Breni- man's and Jensen's complaint allegations. In . United Technologies the Board indicated that it would follow its past practice of refusing to defer to ar- bitration in those situations "where the interests of the union which might be expected to represent the employ- ee filing the unfair labor practice charge are adverse to those of the employee." United Technologies Corp , 268 respect to the remaining allegations , those dealing with the internal union charges brought against Breniman and Jensen , the General Counsel takes the position that the resolution of the underlying hiring hall grievances could not resolve these unfair labor practice allegations i i In view of this conclusion I have not considered whether the unfair labor practice issues raised by the allegations of the complaint which in- volve the internal union charges against Breniman and Jensen are cogni- zable under the contractual hiring hall grievance-arbitration procedures NLRB 557, 560 (1984) The Board prior to United Tech- nologies, regardless of the differences of opinion between the several -Board Members concerning the scope of the Board's deferral doctrine, consistently refused to defer to the parties'- contractual grievance-arbitration machinery in those cases where the interests of the aggrieved em- ployees were opposed to the interest of the union which was supposed to represent them and-there was a lack of evidence that the employers who were party to the con- tractual grievance-arbitration procedure would represent the employees'- rights in lieu of the union See Iron Work- ers Local 433 (RPM Erectors), 266 NLRB 154 (1983); Electrical Workers IBEW Local 401 (Stone & Webster), 251 NLRB 321 (1980); Iron Workers Local 433 (AGC of California); 228 NLRB 1420, 1439-40 (1977), Machinists Lodge 1129 (Sunbeam Corp), 219 NLRB 1019 (1975), and Iron Workers Local 118 (Bostrom-Bergen), 219 NLRB 467, 470 (1975) In the instant case,-as described in detail supra, the in- terests of-the. aggrieved employees are diametrically op- posed to Respondent Union's interests Nor is there evi- dence that the interests of the aggrieved employees are in harmony with the interests of the employers who are parties to the contractual grievance-arbitration proce- dure, or that these employers, or any one of them, would choose to represent the rights of the employees even if their interests were the same. Thus, the charges in this case were filed by the aggrieved employees, not by one of the employers, and there is-no evidence that the inter- ests of the employers are the same as the interests of the aggrieved employees or that even if their interests were the same that the employers, or any one of them, would be willing to protect these interests 'by representing the employees Based on the foregoing I find that deferral to the grievance-arbitration machinery of the governing collec- tive-bargaining agreements is inappropriate in this case because of the conflicting interests of the aggrieved em- ployees and Respondent Unions and because there is no evidence that the interests of the aggrieved employees and the employers who are a party to the contracts are harmonious or, that even if their interests were the same, that the-employers, or any one of them, would be willing to represent the - aggrieved employees during the the grievance-arbitration proceeding.12 12 In concluding, that deferral to the grievance-arbitration procedure of the governing collective-bargaining contracts is inappropriate because of the conflict of interest between the aggrieved employees and the Union. I considered Respondent Union's proposal to allow the aggrieved employ- ees to be represented by counsel for the General Counsel or private counsel Respondent Union's proposal that counsel for the General Coun- sel represent the-aggrieved employees in the arbitration proceeding is meaningless because the-Board's General Counsel does not have the stat- utory-authority to authorize her attorneys to represent aggrieved parties before impartial 'arbitrators pursuant to the provisions of collective-bar- gaining agreements negotiated by unions and employers And with re- spect to the proposal that the aggrieved employees employ their own lawyers to present their cases to the arbitrator, this proposal is inequitable because it requires the aggrieved employees to incur the legal expenses of said representation and. of course, is no remedy for the aggrieved em- ployees if they-cannot afford the expense of private counsel LABORERS NORTHERN CALIFORNIA COUNCIL (BAKER CO) 2 Respondent Local Union's president Leonard allegedly implies to employee Jaster "that dispatches and/or refet rals to future employment would be conditioned upon partisan, intra-union considerations," thereby violating Section 8(b)(I)(A) of the Act In support of this allegation the General Counsel pre- sented, as I have found supra, the following evidence On February 23, 1983, Granite-Ball-Groves requested Richard Jaster by name for referral to the Helms Project from Respondent Local Union's hiring hall The same day Jaster joined Respondent Local Union and, pursuant to the employer's request, the. Local Union's president, Billy Leonard, issued a job referral to Jaster to work for Granite-Ball-Groves as requested, even though Jaster was not registered on the Local.Union's hiring hall out- of-work board, as required by the governing collective- bargaining contract. After having issued Jaster his referral slip on February 23, 1983, Leonard remarked that he had done Jaster a favor by allowing him to go to work when there were so many unemployed members of the Local Union regis- tered on the hiring hall out-of-work board and told Jaster that there were elections coming up and for Jaster to remember that the Local Union had done him this favor. Jaster stated that he would not be able to vote for Leonard because he would not be in the area for the election inasmuch as he did not live in the area and in- tended to return home when his job ended.' 3 Leonard replied that there was going to be a good 10 'years' worth of work in the area and that most likely Jaster would return someday and asked him to remember that the Local Union had done him a favor. The theory of the complaint, as expressly set forth in the complaint, is that Leonard's above-described Febru- ary 23, 1983 remarks to Jaster violated Section 8(b)(1)(A) of the Act because the words used implied that any future job referrals by the Local Union to Jaster would be conditioned upon his casting a vote for Leonard and the other incumbent officers of the Local Union in the election scheduled to be held sometime in 1984.14 I do not agree. I am of the opinion that the words used by Leonard by themselves, or in the context in which they were used were not reasonably calculated to lead Jaster to believe that Leonard was implying that Jaster's future referrals would be conditioned upon Jaster voting in the Union's election for the incumbent union officials includ- ing Leonard. Rather, Leonard simply pointed out to Jaster that he had done him a favor and asked him to re- member that favor come election time if he was still em- ployed within the Union's geographical jurisdiction.'s It 19 Respondent Local Union's election was not scheduled to take place- for at least 15 months 14 The complaint as amended alleges that Respondent Local Union violated Sec 8(b)(1)(A) of the Act when on February 23, 1983, "Billy Leonard told [employee Jaster] that he should vote for Leonard iv the next mtraunion election in return for having been preferentially dis- patched for employment, thereby implying to said employee that dis- patches, and/or referrals to future employment would be conditioned upon partisan intraunion considerations " 15 1 reject Respondent Local Union's contention that Leonard's use of the word "election" in his conversation with Jaster could have just as easily have been a reference to either the state or local elections as to the 289 is for this reason that I shall recommend that this allega- tion be dismissed 3 Respondent Local Union President Leonard allegedly discriminates against Charging Party Breniman with respect to a job dispatch because he filed unfair labor practice charges against the Local Union and/or because of other bad faith, unfair, or invidious reasons, thus violating Section 8(b)(1)(A) and (2) of the Act The complaint alleges that on May 26, 1983, Leonard refused to dispatch Charging Party Breniman to a job at the Helms' Project because Breniman filed unfair labor practice charges with the Board against Respondent Local Union and/or because of other bad faith, unfair, or invidious reasons, thereby violating Section 8(b)(1)(A) and (2) of the Act I shall for the reasons set forth here- inafter recommend the dismissal of this allegation. In support of this allegation the General Counsel pre- sented evidence that 'on May 26, 1983, Leonard refused the request of Hayward Baker's 'represeiitative Nichols that Breniman's wife pick up Breniman's referral slip at the Local Union's hiring hall and that Leonard stated that his refusal was based on the fact that he was having a problem with Charging Parties Breniman and Jensen because they had filed some sort of a "suit" against him. However, for the reasons set forth supra, I have rejected this evidence and have concluded that on May 26, 1983, when Nichols requested that Leonard refer Breniman to Hayward Baker that Nichols asked whether Leonard would mail Breniman's referral slip to the Employer's office and that Leonard replied by stating that he could not' do this because it was contrary to the Union 's usual procedure which required that the applicant being dis- patched personally pick up the referral slip - Also, as I have found supra, the Local Union has a policy of requiring applicants to personally pick up their job referral slips and that this policy is consistent with the provisions of the governing collective-bargaining agreement and that the only times when the Local Union deviates from this policy are on the rare occasions when laid-off employees are recalled to work shortly after their layoffs and ' when in the winter driving conditions between the project and the Union's hiring hall are haz- ardous, thus making it difficult for new hires who are al- ready at the project from driving down the mountain to the Union's hiring hall and back. Breniman's situation did not fit into either of these exceptions. In summation, Respondent Local Union did not refuse to dispatch Breniman to a job, as alleged in the com- plaint, and its insistence that he personally pick up his re- ferral slip was consistent with the Union's usual policy and the terms of the governing collective-bargaining contract. It is for these reasons that I shall recommend that this allegation be dismissed in its entirety local union's election. which was not scheduled to take place for at least another 15 months It is plain from Jaster's reply.to Leonard-"I prob- ably won't be in this area come election time, so it won't make any dif- ference if you have my vote or not"-that Jaster quite reasonably inter- preted Leonard's remark as referring to the union election and that Leon- ard did nothing to disabuse Jaster of this belief 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD t 4. Respondent Local Union files internal union charges against the Charging Parties because they filed unfair labor practice charges I am of the opinion that as alleged in the complaint ' Respondent Local Union violated Section 8(b)(1)(A) of the Act by filing internal union charges against Charging Parties 1 Breniman and Jensen because they filed unfair labor practice charges with the Board against Respond- ent Local Union. This conclusion is based on the follow- ing considerations. It is well settled that a union violates Section 8(b)(1)(A)iof the Act by taking coercive action designed to prevent_an employee from filing an unfair labor prac- tice charge with the Board or in retaliation for filing a charge and that neither the proviso to Section 8(b)(1)(A) nor Section. 101(a)(4) of the Labor-Management Report- ing and Disclosure Act gives a union the right to engage in this conduct inasmuch as "any coercion used to dis- courage, retard or defeat [access by an employee to the Board's processes] is beyond the legitimate interests of a labor organization." NLRB v. Shipbuilders, 391 U.S. 418, 424-425 (1968),'_NLRB v. Teamsters Local 294, 470'F.2d 57, 60 (2d Cir. 1972), and cases there cited. In.the Ship- builders case the Supreme Court sustained the Board's finding that a union's expulsion of an employer member for filing an unfair labor practice charge was coercive under Section 8(b)(1)(A). Other forms of coercive con- duct interdicted by Section 8(b)(1)(A) include the filing 'of internal union charges by the president of a local union against an employee-member and the scheduling of a trial on those charges. Auto Workers Local 1989 (Cater- pillar Tractor Co.), 249 NLRB 922, 923 (1980). Also the Board has held that a union violates Section 8(b)(1)(A) when it threatens to file internal union charges against an employee-member if he files unfair labor practice charges with the Board . Plasterers Local 521 (Arthur McKee & Co.), 189 NLRB 553 (1971). In the instant case Billy Leonard , the president and field representative of Respondent Local Union, on behalf of the Local Union, filed internal union charges against Charging Parties Breniman and Jensen with the Local Union's parent organization, Respondent District Council.These charges were filed on the same days that Respondent Local Union was actually served with the unfair labor practice 'charges filed by Breniman and Jensen alleging that Respondent Local Union had violat- ed Section 8(b)(1)(A) of the Act. In support of the inter- nal union charges filed against Breniman and Jensen, Leonard enclosed copies of their unfair labor practice charges and further supported the internal union charges against Breniman by stating that "on May 16, 1983 this member filed charges against me with the NLRB, he al- leged that during the last 6 months, that I had violated Section 7." All of these circumstances persuade me that the General Counsel has proven by a preponderance of the evidence that a motivating factor in Respondent Local Union's decision to file internal union charges against Breniman ' and Jensen was their filing of the unfair labor practice charges with the Board. Respondent Local Union offered no evidence to establish that the in- ternal union charges would have been filed against Bren- iman and Jensen' even if they had not filed their unfair labor practice charges. I therefore find that as alleged in the complaint Respondent Local Union violated Section 8(b)(1)(A) of the Act by filing internal union charges against Charging Parties Breniman and Jensen 1 6 because they filed unfair labor practice charges with the Board against Respondent Local Union. t' 5. Respondent Council schedules trials concerning the internal union charges filed against the Charging Parties, holds these trials, and finds the Charging Parties guilty and admonishes them The complaint alleges that Respondent Council violat- ed Section 8(b)(1)(A) of the Act when in response to the internal union charges filed by Respondent Local Union against the Charging Parties that Respondent Council scheduled trials, conducted these trials, and found the Charging Parties guilty and admonished them. I am per- suaded for the reasons set forth hereinafter that the Gen- eral Counsel has proven this allegation. Respondent Local Union's internal union charges filed with Respondent Council against the Charging Parties on their face should have alerted Respondent's Council that they were filed because the Charging Parties had filed unfair labor practice charges. Thus, in support- of the internal union charges, Respondent Local Union transmitted to Respondent Council copies of the unfair labor practice, charges filed by the Charging Parties and, in the case of the internal union charge it filed against Charging Party Breniman, specifically informed Re- spondent Council that the basis for this charge was that Breniman had filed the enclosed unfair labor practice charge. These circumstances when viewed in the light of Respondent Council's June 24, 1983 decision which stated that the Charging Parties were found guilty by Respondent Council as charged, because they did not ex- haust the remedies provided in the governing collective- bargaining agreements for employees' hiring hall griev- ances, warrant the inference that Respondent Council found the Charging Parties guilty and admonished them because they had filed unfair labor practice charges against Respondent Local Union. Based on the foregoing I find that it was because the Charging Parties filed unfair labor practice charges 16 It is apparent- from the Board's above-described decisions in Auto Workers Local 1989, supra, and Plasterers Local 521, supra, that contrary to Respondent Local Union's contention , it is not necessary for union action to take the form of a fine or of interference with the employee- member's employment or membership status, before union action consti- tutes a form of "coercion" interdicted by Sec 8(b)(1)(A) Also I reject Respondent Union's further contention that the Charging Parties could not have been coerced by Respondent Union's conduct because even after the filing of the internal union charges and the trial and decision on those charges, the Charging Parties were not deterred from amending their unfair labor practice charges to encompass the filing and processing of the internal union charges The test of coercion under Sec 8(b)(1)(A) is "not whether [a union's] misconduct proves effective, but whether. the misconduct is such that, under the circumstances existing, it may reason- ably tend to coerce or intimidate employees in the exercise of the rights protected under the Act " NLRB v Service Employees Local 254, 535 F 2d 1335, 1337-38 (1st Cir 1976) it The fact that I have found that the charges filed by Breniman and Jensen are without merit is no defense to Respondent- Local Union's con- duct inasmuch as there is no showing that the charges were filed in bad faith LABORERS NORTHERN CALIFORNIA COUNCIL (BAKER CO) against Respondent Local Union that Respondent Coun- cil scheduled trials concerning Respondent Local Union's internal union charges against the Charging Par. ties, held these trials, and found the Charging Parties guilty and admonished them.' I further find that this con- duct was coercive' within the meaning of Section 8(b)(1)(A) and that by engaging in this conduct Respond- ent Council, as alleged in the complaint, violated Section 8(b)(1)(A)• CONCLUSIONS OF LAW 1. By filing internal union charges against Eric Breni- man and Michael Jensen because they filed unfair labor practice charges with the Board, Respondent Local Union violated Section 8(b)(1)(A) of the Act- 2. By scheduling trials, trying, judging, and admonish- ing Eric Breniman and Michael Jensen because they filed' unfair labor practice charges with the Board, Respondent Council violated Section 8(b)(1)(A) of the Act. THE REMEDY Having found that Respondent 'Unions have engaged in the aforesaid unfair labor practices, I shall recommend that they cease and desist therefrom and take certain af- firmative action which will effectuate the policies of the Act The General Counsel urges that to remedy the unfair labor practices found herein I recommend that Respond- ent Unions jointly and severally reimburse the Charging Parties for their travel and other expenses, including lost wages they may have incurred, because of their attend- 291 ance at Respondent Council's June .16, 1983 trial board proceedings which, as I have found supra, violated Sec- tion •8(b)(1)(A) of the Act But, as acknowledged by the General Counsel, the Board has not granted such a remedy in similar cases involving illegal union discipline and, as a matter of fact, has specifically refused to grant this remedy. See Transit Union, Division 825, 240*NLRB 1267, 1271 fn. 24 (1979), citing Television Wisconsin, 224 NLRB 722, 781 (1976). Accordingly, since I am obliged to follow Board law, I reject the General Counsel's pro- posed remedy. Nevertheless I feel constrained to note that the General Counsel's proposed remedy like other Board remedies is intended to dispel the effect of Re- spondent Unions' unlawful conduct by restoring the Charging Parties as nearly as possible to the economic. position they would have enjoyed in the absence of the unlawful conduct. In the instant case the only way to re- store Breniman and Jensen to the economic position that would have existed, but for Respondent Unions illegal conduct of trying them because they filed unfair labor practice charges, is to make them whole for the loss of moneys they incurred as a direct result of the unfair labor practice . I note that the relationship between Re- spondent Unions' illegal trials of Breniman and Jensen and=.the expenses they incurred to attend the trials in order to defend themselves, including any loss of com- pensation for being absent from work,; is clear and direct, Under the circumstances I agree with the General Coun- sel that the Board should reconsider ,its remedies in cases of this nature. [Recommended Order omitted from publication.] I