Carpenters Local 608 (Various Employers)

CARPENTERS LOCAL 608 (VARIOUS EMPLOYERS) Carpenters Local 608, United Brotherhood of Car- penters and Joiners of America, AFL-CIO (Various Employers) and John Harte and Franklin McMurray and Eugene Clarke. Cases 2-CB-9767, 2-CB-9811, and 2-CB-9812 30 April 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 26 March 1985 Administrative Law Judge Steven B. Fish issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. 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 as modified.I ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Carpenters Local 608, United Brother- hood of Carpenters and Joiners of America, AFL-- CIO, its officers, agents, and representatives, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraphs 1(a) and (b). "(a) Denying employees whom it represents in collective bargaining the right to review, inspect, photocopy, or duplicate all hiring hall records (on payment of reasonable costs), or refusing to pro- vide such employees information, on request, with regard to the operation of its hiring hall, where such information or request is related to an alleged failure to properly refer such employees because said employees engaged in intraunion political ac- tivities or other protected concerted activities. "(b) Arbitrarily denying employees whom it rep- resents in collective bargaining the right to review, inspect, photocopy, or duplicate all hiring hall records (on payment of reasonable costs), or refus- ing to provide such employees information, on re- quest, with regard to the operation of its hiring hall ' The General Counsel has excepted to the judge's inadvertent failure to conform his recommended Order to his findings We have modified the recommended Order and notice accordingly Because this case involves an exclusive hiring hall, we find it unneces- sary to consider, and do not rely on, the judge's discussion concerning a union's obligations in operating a nonexclusive hiring hall 747 where such information or request is related to an alleged failure to properly refer such employees." 2. Substitute the following for paragraph 2(a). "(a) Honor requests by Eugene Clarke, Franklin McMurray, and John Harte to inspect, review, photocopy, or duplicate all hiring hall records (on payment of reasonable costs), and provide such em- ployees information on request with regard to the operation of its hiring hall, where such requests are related to the alleged failure to properly refer such employees, including but not limited to those re- quests made by letter in February 1983." 3. Substitute the attached notice for that of the administrative law judge. 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 ordered us to post and abide by this notice. WE WILL NOT deny employees whom we repre- sent in collective bargaining the right to review, in- spect, photocopy, or duplicate our hiring hall records (on payment of reasonable costs), or refuse to provide such employees information on request, with regard to the operation of our hiring hall, where such information or request is related to our alleged failure to properly refer such employees be- cause said employees engaged in intraunion politi- cal activities or other protected concerted activi- ties. WE WILL NOT arbitrarily deny employees whom we represent in collective bargaining the right to review, inspect, photocopy, or duplicate our hiring hall records (on payment of reasonable costs), or refuse to provide such employees information with regard to the operation of our hiring hall, where such information or request is related to an alleged failure to properly refer such employees. WE WILL NOT in any like or related manner re- strain or coerce employees in the exercise of rights guaranteed by Section 7 of the Act. WE WILL honor requests by Eugene Clarke, Franklin McMurray, and John Harte to inspect, review, photocopy, or duplicate our hiring hall records (on payment of reasonable costs), and pro- vide such employees information, on request, with regard to the operation of our hiring hall where 279 NLRB No. 99 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such requests are related to our alleged failure to properly refer such employees. CARPENTERS LOCAL 608, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO Sandra Grossfeld, Esq., and Stephen Appell, Esq., for the General Counsel. Ira Sturm, Esq. (Manning, Raab, Dealy & Sturm), of New York, New York, for the Respondent DECISION STATEMENT OF THE CASE STEVEN B. FISH , Administrative Law Judge. On Feb- ruary 22, 1983,1 John Harte (Harte) filed a charge in Case 2-CB-9767 against Carpenters Local 608, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Respondent),2 alleging violations of Section 8(b)(1)(A) and (2) of the Act by failing and refusing to provide Harte with names, addresses, and telephone numbers of persons who have applied for or been given referral to employment by Respondent within the past 6 months. On March 22 Frank McMurray (McMurray) filed a charge against Respondent in Case 2-CB-9811, alleging an 8(b)(l)(A) violation of refusing to provide McMurray with the number of names on its job lists, because McMurray and another member of Respondent filed charges with the Board. The charge also contains a "by these other acts" clause. On March 23 Eugene Clarke (Clarke) filed a charge against Respondent in Case 2-CB-9812, alleging 8(b)(1)(A) and (2) violations by refusing to allow Clarke to inspect and examine the referral lists of Respondent containing the names, addresses, and phone numbers of persons who had requested referrals, and by discriminat- ing against Clarke with respect to job referrals, because he engaged in concerted activity protected by Section 7 of the Act. On April 29 the Regional Director for Region 2 issued an order consolidating the above cases along with a complaint and notice of hearing, alleging that Respond- ent violated Section 8(b)(1)(A) of the Act by failing and refusing to provide Harte, McMurray, and Clarke with names, addresses, and telephone numbers of all persons who have asked to be referred or have their names placed on the list by Respondent for referral, dates of such request, the identity of each person referred and dates of each referral, where they were referred, dates of hire, layoffs, or discharge.3 i All dates hereinafter unless otherwise indicated are in 1983 2 During the trial of the instant matter, Respondent was represented by David Lew, Esq, of Bart & Lewis, New York, New York The above- cited firm was substituted as counsel subsequent to the close of hearing and filed a brief on behalf of Respondent s The 8(b)(2) portion of the charges filed by Harte and Clarke were withdrawn McMurray as noted did not allege 8(b)(2) violations in his charge A hearing was held before me with respect to the alle- gations in the complaint in New York, New York, on December 12, 20, 21, and 22, 1983, and April 10 and 11, 1984. Briefs have been received from Respondent and the General Counsel and have been duly considered. On the entire record,4 including my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT 1. JURISDICTION Building Contractors Association Inc. (BCA) and the Cement League (the Associations) are associations of em- ployers engaged in the construction and building trades, and which exist for the purposes of representing their employer-members in collective bargaining and negotiat- ing and administering collective-bargaining agreements with labor organizations, including the District Council of New York and Vicinity of the United Brotherhood of Carpenters and Joiners of America (District Council and Respondent). Annually, the employer-members of each of the Asso- ciations, in the course of their business operations, collec- tively, purchase goods and materials valued in excess of $50,000 directly from firms located outside the States wherein the employer-members are located. It is admitted and I find that each of the Associations and their respective employer-members are now, and have been at all times material herein, employers en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. It is also admitted and I so find that Respondent is now, and has been at all times material herein a labor or- ganization within the meaning of Section 2(5) of the Act. II. FACTS A. Respondent's Hiring Hall Procedures At all times material herein , Respondent has been a constituent member of the District Council, which in- cludes all Local Carpenter Unions within the city of New York. For a number of years Respondent, as a con- stituent member of the District Council, was a party to a series of collective-bargaining agreements with the vari- ous Associations covering employees falling within the jurisdiction of Respondent. A collective-bargaining agreement running from July 1, 1981, to June 30, 1984, was executed by the parties, and was binding on and enforced and maintained by Re- spondent during this period of time. Article VI, section 2, of the agreement provides: The first Carpenter on the jobsite shall be re- ferred by the Union. The Second Carpenter shall be the Employer's selection. The balance shall be 50% from the Union and 50% from the Employer. The Union will cooperate, in order to meet all legal re- quirements, and furnish qualified Carpenters when 4 The General Counsel's unopposed motion to correct the transcript is granted CARPENTERS LOCAL 608 (VARIOUS EMPLOYERS) 749 requested. A working Job Steward shall be appoint- ed by the Union. When a Employer, in compliance with this Sec- tion, requests the District Council to send men to a job, the District Council shall cooperate by sending only such as are experienced in the specific type of carpentry work being done on the said job by that Employer. There shall be no discrimination of any kind against any person covered by this agreement, based on race, religion, age, sex, national orgin or Union affiliation with respect to hiring, firing, or any other conditions of employment. Article VII, entitled "Job Referral System," provides that: In the referral of applicants by the Union for em- ployment as provided for in Article VI, Section 2, by the following provisions shall govern: Section 1. The Union shall establish and maintain an open employment list for the employment of competent workmen. This list shall be established and maintained on a non-discriminatory basis and shall not be based on, or in any way affected by race, creed, color, nationality, age, sex, or Union membership, by-laws, rules, regulations, constitu- tional provisions of any other aspect or obligation of Union membership, policies or requirements. Prior to 1979 in connection with the implementation of the referral procedure set forth above, Respondent had operated a hiring hall wherein applicants would shape up at Respondent's offices on a daily basis. Sometime in early 1979, Respondent had a fire at its premises, which the landlord allegedly blamed on Respondent's use of its "dayroom," which was utilized by it for shaping up by applicants. Accordingly, by a letter dated August 9, 1979, Respondent announced that as of August 20, 1979, it would no longer utilize a shapeup system. The letter explained that the landlord had claimed that Respondent was violating its lease by allowing a dayroom and re- quested its discontinuance. Additionally, the letter assert- ed that Respondent's executive board felt that the present system was wasteful and expensive to the mem- bership, and decided to adopt a call-in system, similar to the practice of other carpenter locals in the area. The system instituted by the August 1979 letter was still in effect as of the hearing herein, which requires ap- plicants to call in to Respondent between 2:30 and 3:30 p.m. to request a referral. The applicant must provide his name, telephone number, and ledger page number. Ap- plicants are told to be available at the given telephone number between 7 to 9 o'clock in the morning, when representatives of Respondent contact them to notify them of a possible referral. Employers can call Respond- ent to seek employees at anytime. Consequently it some- times becomes necessary for Respondent's agents to call applicants and offer them jobs at times of the day or evening, other than from 7 to 9 a.m. Respondent maintains three different sets of documents in connection with the operation of its referral system. When an applicant first calls in to use the hiring hall, a 5-by-8 inch identification card for each member, some- times referred to as a worksheet or work card, is pre- pared. These cards or worksheets contain the applicant's name, a telephone number where he can be reached, his ledger number, and his specialty, if any.5 Respondent also utilizes a shapeup list, which is main- tained on a daily basis and maintained thereafter in a monthly folder. Each daily page of the shapeup list con- tains the names of other employees requesting shapeup,' his or her ledger page number, and telephone number. Respondent also maintains referral lists which are simi- larly maintained on a daily basis and thereafter in month- ly folders. The referral lists, through the end of 1982, were made up of two columns, the first column contain- ing the name of the employer to whom referral was made and the job location, and the second column indi- cating the name of the employee or employees referred to that particular job. In 1983, the referral list added two additional columns, entitled "specialty" and "requested." Each page bears a date, but no times of call-ins or refer- rals are listed on any of the records. Paschal McGuiness, Respondent's business manager, is Respondent's chief operating official, with four assistant representatives reporting to him. John Boyle, one of these assistant business representatives, was assigned by McGuiness the responsibility of maintaining the above- described hiring hall records. Other assistant business representatives such as John F. O'Connor, Martin Ford, and John Keane are also involved in the process of oper- ating Respondent's hiring hall system. When applicants call in to request a referral, as noted, a card or worksheet is made up for them. Each time an applicant calls for a referral, one of the Respondent's of- ficials places a "C" on his worksheet or card and places his name on the shapeup list. The card of the applicant is then placed on the wall in the order of his or her calling in Referrals are made according to Respondent's offi- cials in order from the shapeup list or from the cards on the wall, taking into consideration the specialty that may be requested by the employer, as well as the preferences of the particular carpenter for performing certain types of work, as appears on his records. If Respondent is unable to contact the applicant, a no- tation of "N" is placed on his card. If the person is con- tacted and refuses a referral an "X" is placed on his card. If the person refuses a referral and provides an explana- tion, such a illness, an "XX" is placed on his card. In either event , a person is not penalized for either refusing a job or not being home when called, and he retains his place on the list. Respondent will then go down the list of names until the job is filled, sometimes even calling back an applicant who it had been unable to reach earli- er. When an applicant is referred, an "R" is placed on his card. If an applicant obtains his own job, he is supposed to call in and notify Respondent of same, in which case a s In the industry , carpenters perform a variety of specialty work such as "finish , dry wall , ceilings and concrete " Employers will frequently re- quest employees to perform these specialties Many carpenters usually look for work only in the specialties , and will not accept work in other specialties 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "W" is placed on his card . Then the applicant will not be called until he again calls when that job is completed and requests a referral , and his name is again placed on the shapeup list, and "C" is marked on his card. Boyle testified that Respondent has approximately 3200 to 3500 members , and of that number 700-800 use its hiring hall on an annual basis . The remaining over 2000 members, according to Boyle , obtain jobs on their own As noted Respondent 's contracts with the two As- sociations provide for a hiring procedure , wherein the first carpenter on the jobsite shall be referred by Re- spondent, the second shall be the employer's selection, and the remaining employees , 50 percent from each source. No evidence was adduced on this record, that these requirements have not been adhered to by the par- ties. B Dissident Activities of the Charging Parties It is undisputed that Harte , McMurray, and Clarke (the Charging Parties) are and have been well-known union dissidents for several years. Harte's problems with Respondent began as far back as 1973, when he was denied admission into Respondent on his attempt to transfer from another local and filed a lawsuit to gain ad- mission . In late 1981 , the three members met and dis- cussed various complaints that they had about the oper- ations of Respondent , and formed a dissident group named "Carpenters for a Stronger Union ." Clarke was president, McMurray , vice president, and Harte, coordi- nator of this group . During 1982 the individuals began to complain at Respondent's meetings about various union policies as well as speaking to various carpenters about their concerns. Some of their main complaints were the lack of a shapeup room, Respondent's pension plan, and an alleged lack of democracy in the Local as well as alleged cor- ruption among its officials. During 1982 as well as in early 1983, the group pre- pared, published, and distributed anti-incumbent litera- ture at union meetings, jobsites , and the union hall. This literature included newsletters entitled "On the Level," and "The Rusty Nail " These documents were highly critical of Respondent's operations in general , and its of- ficers and officials in particular. A number of the news- letters accused Respondent 's representatives of corrup- tion, emphasizing their relationship with Theodore Mari- tas, president of the District Council , who was indicted on various Federal criminal extortion charges , disap- peared before a trial could be held , and was believed to have been killed. These newsletters also criticized the allegedly high sal- aries and benefits of Respondent 's business agents as well as Business Manager McGuiness. Respondent's failure to have a dayroom or shapeup hall was also emphasized, where it was suggested in answer to Respondent's al- leged concerns for the expense of such a hall , that Re- spondent could afford to have a dayroom by merely eliminating the salary of a business agent . A number of the newsletters dealt with the hiring hall issue , contend- ing that the present telephone system was unfair and ar- bitrary, and afforded the business agents too much con- trol over hiring, while not affording the member suffi- cient opportunity to check to see if the member is being discriminated against or to decide whether or not to turn down a job that he or she might not want. Additional areas of criticism in these publications in- cluded Respondent's pension plan, apprentice system, and policies with regard to dues and assessments. All three Charging Parties were involved in election campaigns against the incumbent administration . In'June 1982, Harte ran for trustee on an opposition slate to the then present leadership . He was defeated and appealed the results to the International , but never received an answer to his appeal Clarke attempted to run for Local president , but was not permitted to run for office, be- cause he had been suspended from Respondent 's meet- ings because of his alleged disruptive conduct at meet- ings.6 McMurray unsuccessfully opposed the incumbent Business Manager McGuiness in the June 1983 election, receiving approximately 12 percent of the votes. Harte and Clarke acted as the observers for McMurray at this election. McMurray challenged the results of the election to the International , claiming certain alleged election ir- regularities by the incumbent slate of officers . His appeal was turned down by the International. The record reveals several instances of animus dis- played by Respondent's offices towards some of these activities engaged in by the Charging Parties . Thus at Respondent's meeting of October 8, 1982, McMurray made some critical comments about Respondent 's poli- cies and made a motion to end a 15 -percent assessment Immediately McGuiness asked for the floor . He then proceeded to criticize the "small group or minority that is printing garbage and passing it out." He referred to the publications being passed out as "deliberate lies," and "indecent pieces of literature that are being handed out," stated that he was "telling your Brothers to ignore this garbage if you have decency at all." He also at a further point in his remarks asked the members not to "be like this small minority group , do not lower yourself to their class." At a union meeting on February 28, 1983, McMurray raised a question about the hiring hall list. John F. O'Connor interjected angrily that since he and Harte had filed charges against Respondent at the NLRB, Respond- ent would not answer any questions about the job list.7 O'Connor then read a letter from Respondent 's attorneys congratulating the Local and its officers for their profes- sional manner in keeping their referral lists, which were utilized in connection with the defense of a prior charge filed and withdrawn by Clarke with the Board.8 6 Clarke was nominated for the position of president by Harte to run against incumbent John F O'Connor at the May 1982 meeting O'Con- nor, who was chainng the meeting , rejected the nomination, because it was allegedly contrary to Respondent's constitution O'Connor, then real- izing that he was a candidate for president , relinquished the chair to McGuiness who made the same decision and did not accept the nomina- tion of Clarke ° In fact, as of that date Harte and not McMurray had filed charges with the Board 8 The letter referred to Case 2-CB-9630, which apparently involved a challenge by Clarke to the hiring hall The record is silent as to the pre- cise details of this charge or when it was filed or withdrawn CARPENTERS LOCAL 608 (VARIOUS EMPLOYERS) McGuiness then remarked that members who bring charges to the Labor Board cost the Local money, be- cause they have to pay for lawyers. Later on in the meeting, McMurray spoke regarding the salaries of business agents. John F. O'Connor inter- rupted and called McMurray an "ungrateful bastard," and refused to permit him to continue speaking. O'Con- nor also added that Harte and McMurray had brought charges with the NLRB and that they were "bastards trying to destroy the Union." At the next meeting, McMurray objected to the ac- ceptance of the minutes because neither of the above comments of O'Connor nor McGuiness were refleced therein. McMurray's objections were ignored and the minutes accepted.9 Finally, about January 25, 1983, Harte was distributing dissident literature at Respondent's offices. Martin Ford, one of Respondent's business agents, told him to leave the premises and stop distributing literature and that he had no business being here. Ford added that if Harte dis- tributed any more literature Ford would have him beaten i up. 0 The next day Harte returned to Respondent's offices with McMurray and began to hand out more literature to members. John F. O'Connor approached them and told them to stop handing out literature, and if they did not he would have them arrested. The men then left the premises. I I C. The Efforts of the Charging Parties to Obtain Hiring Hall Information At nearly every monthly meeting held by Respondent between May through December 1982, either or both John F. O'Connor or McGuiness made comments to the membership that the Local had 100-percent employment and/or that work opportunities were plentiful. In fact, at the October 18, 1982 meeting, McGuiness stated in re- sponse to a question by McMurray about the employ- ment situation that Respondent "had better than 100 % employment in this the best local union in the United Brotherhood " In July 1982 Harte made the first of a number of oral requests to inspect the hiring hall lists. He made these re- quests on a number of occasions during July through the end of September. Whenever Harte was out of work during this period he would call and ask that his name be placed on the referral list. When after not receiving re- ferrals for a short period of time thereafter, and hearing at meetings of 100-percent employment, Harte asserts that he wanted to see the list to see where he stood. Harte would ask either O'Connor, Tom O'Kelly, or McGuiness to see the hiring hall list. They responded that Harte will be called for employment, but would not show him the list. 9 The above form the uncontradicted testimony of Harte and McMur- ray 10 Based on the credible testimony of Harte. Ford did not testify, but the parties stipulated that if he were called to testify he would deny making any threats to Harte I credit Harte I' Based on the essentially mutually corroborative testimony of Harte and McMurray 751 On October 12, 1982, McMurray called into the hiring hall and requested that his name be placed on the refer- ral list. By October 18 he had not been offered a job, al- though he had been told by other carpenters that there was a lot of work at the time in "finishing," which was his specialty. McMurray was also concerned that since he had been speaking up at meetings, this may have ad- versely affected his referral opportunities. 12 McMurray concluded that he wanted to check and see if he was getting his fair share of work. Therefore at the October 18 meeting he asked whether Respondent kept a job list and whether the members were entitled to see it. McGuiness replied that the Local did keep a job list, and that any member could see it any time that they wanted. 13 On the day following the meeting, October 19, Harte, McMurray, Clarke, and a fourth member, Jerry McDon- ough, went to Respondent's office to see the hiring list. Harte and McMurray at first saw John F. O'Connor and asked him to see the job list. O'Connor returned with their work cards. They insisted that this was not suffi- cient and again asked to see the job list. O'Connor re- plied that if they wished to see anything else other than their work cards, they would have to see McGuiness. A few hours later Harte, McMurray, and Clarke each saw McGuiness individually. 14 McMurray asked McGui- ness to see the job list, and reminded him of the fact that he had said at the meeting that all members could see the job list whenever they wanted to. McGuiness replied that he could not show McMurray the list, and men- tioned that McMurray was family man and needed to support his family. McMurray again requested to see the list. McGuiness continued to refuse to show it to him, and did not provide him with an explanation for not doing so, although, McMurray asked why he could not see it. Finally McGuiness asked McMurray if he wanted a job. McMurray said yes, and McGuiness referred him to a job which lasted 5 hours. Harte, who at the time was also out of work,15 and awaiting referral from Respondent's hall, asked McGui- ness where he stood on the list. McGuiness showed him his work card and explained to Harte the various codes appearing therein, which indicated that he had been called on certain days and was not home and that he had refused a job. Harte replied that he never refused a job and that he was always home, so that the cards were not accurate. Harte again asked where he stood on the list, saying that his card was not meaningful since it did not show his position on the list relative to others. McGuiness an- swered that Harte was a smart fellow and had a family to support. Harte continued that he did not want a lec- ture, but just wanted to see the list. McGuiness conclud- 'a McMurray had been told by other members that if he spoke up at meetings, he would not get work 19 Based on the testimony of McMurray , substantially corroborated by Harte, and not denied by any of Respondent 's witnesses i• The fourth member who accompanied the Charging Parties, McDonough, did not wait around to see McGutness and left the prem- ises 15 According to Respondent's record card, Harte had called in for re- ferral on October 8, 1982 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ed that he "can't show" Harte the list, and that Harte would be getting a job in a few days. Harte was referred by Respondent to a job, a few days later. Clarke, who was also not working on that day,' e asked McGuiness to show him the hiring hall list. McGuiness instead showed him his card and began to ex- plain it to Clarke. Clarke said that he knew about the card but that was not helpful to him since it did not show where he was on the list and who was ahead of him and he wished to see where he stood. McGuiness re- sponded that he could not show Clarke the list and gave no reason for not doing so. Thereafter at a number of subsequent membership meetings, McMurray asked why members were not al- lowed to see the job list. McGuiness responded by stat- ing how democratic the Local was, but did not reply to McMurray's question. McMurray, after being referred to a 5-hour job by McGuiness on October 19, protested to the hall that this was only 5 hours' work. A day or two later Ford called him and referred McMurray to a job for Nastasi White, which lasted for 1 day. McMurray then obtained his own job for a firm called Amberg which lasted from Novem- ber 1982 through the end of January 1983. Harte was laid off from a job on January 23, 1983, and called in to place his name on the list. On January 25 he went to Respondent's premises and asked John F. O'Connor to see the list. O'Connor replied that Harte could not see the list. At that point Harte decided to remain and distribute literature to the members. On that day, as set forth above, Ford threatened to have Harte beaten up if he distributed any more literature. The next day, January 26, 1983, Harte asked McMur- ray to accompany him to the hall in view of his being threatened the day before. They spoke to Tom O'Kelly, Respondent's financial secretary, and asked to see the job list. O'Kelly replied that he could not show them the list. McMurray and Harte then began to again distribute liter- ature. O'Connor then came out and told them to leave the hall and stop giving out literature or he would call the police. At that point McMurray took out a camera and took a picture of O'Connor. McMurray explained that he originally took the camera with him in case there was any violence, he would be able to record it, since Harte had informed him of the threat by Ford the day before. Although admittedly O'Connor did not engage in any violence on January 26 and merely ordered them to leave, McMurray testified that he decided to take a pic- ture of O'Connor any way, since it might eventually be useful for their dissident publications. McMurray and Harte again went to the hall on Febru- ary 9 and asked O'Connor to see the job list. O'Connor again refused. Shortly thereafter, in mid-February 1983, Harte and McMurray, after consulting with an attorney, sent identical letters to Respondent in care of McGui- ness. The letters read as follows: I am a member of Carpenters' Local 608, UBC&J, and I seek work through its job referral 16 Respondent's record shows that Clarke had called in on October 13 to place his name on the list. procedures. I have good faith reason to believe that I have been and am being discriminated against by Local 608 in job referrals. In order to determine whether I have been or am being discriminated against, I seek information con- cerning the identity of persons on the Local 608 job referral list(s), and of the persons who have been re- ferred to jobs, as well as the dates the persons who have been referred to jobs, as well as the dates of referral, dates of hire, and dates of last preceding discharge. Please forward to me by return mail the names, addresses and telephone numbers of all persons who, during the past six months have asked to be referred to jobs by Local 608 or have asked that their names be placed on a list for job referral, to- gether with: (a) the date or dates of each request; (b) the date or dates of each subsequent referral of such person to a job, including the name of the person so referred, the name of the employer to whom referred, and identification of the jobsite to which referred; (c) the date or dates of each hire and of any sub- sequent layoff or discharge, including the name of the person hired and/or laid off, the name of the employer and identification of the jobsite. I shall of course be prepared to pay a reasonable cost for reproducing the information requested. By identical letters dated February 24, 1983, McGui- ness replied to Harte and McMurray, asking them to contact McGuiness in order to set up a meeting, "so that we may review documentation that may be appropriate to your inquiry." On April 6, 1983, a meeting was held pursuant to these letters. Present were McGuiness, McMurray, and Harte. They asked McGuiness to see the job list. McGuiness took out and showed them their work cards and ex- plained that they showed that the men had received their fair share of work. McMurray responded he objected to the accuracy of the cards, claiming that he was home on days that showed he had been called. McMurray again insisted on seeing the job list, which is required by the contract. 17 McGuiness repeated that McMurray had gotten a fair shake at the hall and that he was working steady, and that he would not be shown the job list. McGuiness did not mention anything about any of the job records or any part thereof being confidential. The meeting then ended. The very next day McMurray received a call from John F. O'Connor offering him a job at LaGuardia Air- port. McMurray refused this job, telling O'Connor that it was not a "finishing" job, which was his specialty, and that he also had no transportation to the airport. About February 23, 1983, Clarke was called by John Boyle from Respondent and offered a finishing job, al- though his specialty is ceiling work. Clarke refused this job, since he did not have any finishing tools. That very 11 The contract as noted requires the Union to "establish and maintain an open employment list " CARPENTERS LOCAL 608 (VARIOUS EMPLOYERS) morning however Clarke had been told by a fellow member that he plus four others were dispatched from the hall that morning for ceiling jobs. In mid-March Clarke, who was not working at the time, went to Respondent's office and asked John F. O'Connor to see the list. O'Connor showed Clarke his work card. Clarke replied that he wanted to see the list, not his card. O'Connor responded that Clarke could not see the list, and the conversation ended. In May 1983, Clarke ascertained that a company called Duncan Interiors was hiring employees. He then called the company, and was told the company needed a good mechanic such as Clarke, and would hire him, but that he had to get approval from the hall. Clarke then called Respondent and informed John F. O'Connor of his con- versation with the Duncan official. O'Connor replied that Respondent had already dispatched two men to that job Although Clarke admitted that he had just been laid off from another job and had not as yet placed his name on Respondent's list, he still felt that this was his job and he was being circumvented by the Union, and that he felt his rights to get his own job from management was being restricted. 18 Therefore Clarke went to the hall to try to find out who was sent out in his place to Duncan. He saw McGuiness and complained that he was being "put upon" and was unhappy about the fact that he was told that he needed clearance from Respondent to obtain a job he had gotten on his own. McGuiness explained the the employer had already called in for men and that Re- spondent had dispatched two men to that job. Clarke then asked to see the job list to ascertain who had been sent out in his place. McGuiness refused to show Clarke the list or tell him who had been sent out to this job. 19 The above findings with respect to the various re- quests to see the job referral lists of Respondent by the Charging Parties are based on a compilation of what I believe to be the credible testimony of the Charging Par- ties and Respondent's witnesses, O'Connor and McGui- ness. While much of the evidence is essentially undis- puted and agreed upon, there are some areas where con- flicts in testimony do exist. For the most part I have credited the testimony of the Charging Parties over that of Respondent's witnesses where it was necessary to re- solve such conflicts. On balance I found the Charging Parties to be more candid and credible than Respond- ent's witnesses. I was most impressed with Charging Party Clarke, who appeared to me to be the most believable of all the witnesses herein, and who freely admitted facts which might adversely affect his position. Thus, for example, he divulged that he had not signed up on Respondent's hiring hall list when he made his request to see the list in May 1983. On the other hand I was most unimpressed with McGuiness as a witness, who was frequently evasive and 19 I note that the contract provides that 50 percent of the jobs at a jobsite can be filled by management 19 I note that Clarke had no way of knowing whether the men who had been sent out to this job were on the hiring list as contended by Re- spondent, nor whether the 50-50 ration set forth in the contract was being adhered to with respect to these referrals 753 argumentative in a number of his responses. This was true in some particularly significant areas of his testimo- ny, such as whether Respondent had a policy in regard to permitting members to see the job referral lists. Respondent defends its decision not to show the refer- ral lists to the Charging Parties essentially through the testimony of McGuiness and Boyle. These explanations related specifically to the requests made in writing and orally by Harte and McMurray in February and April 1983, as McGuiness denied that any similar requests were made at other times.20 O'Connor, who also testified on behalf of Respondent, admitted that in October 1982 and February 1983, he received requests from Harte and/or McMurray to see the referral lists, that he showed them the work cards instead, and that he would not show them the lists. O'Connor testified that he refused to show them the list although he had not discussed the matter with McGuiness, nor was he aware of any union policy with respect to such requests When asked why he did not show the list to a Charging Party, O'Connor's re- sponse was "his card was sufficient." Insofar as McGuiness and Boyle are concerned they corroborate each other's testimony that after the Febru- ary letters of Harte and McMurray were concerned, McGuiness instructed Boyle to bring in their individual worksheets as well as requesting District Council fringe benefit reports. Based on their review of these docu- ments, Boyle and McGuiness testified that they conclud- ed that Harte and McMurray had both received their fair share of work from Respondent. McGuiness also alleged- ly mentioned that he felt that the telephone numbers of members were confidential. McGuiness then decided that the men would not be allowed to see the referral lists. McGuiness asserts that in his view Harte and McMurray had been "working steady" for the 6-month period for which they requested information, and further that Re- spondent has a policy of confidentiality as to addresses and phone numbers. Accordingly, he states that he con- cluded that the requests made were unreasonable and they would not be shown Respondent's records. During this discussion and McGuiness' deliberations, Boyle and McGuiness did not check the work cards or District Council records of any other members, nor did they go through the sign in or referral lists. McGuiness also testified that there was no "Union" policy with re- spect to requests to see the list by members, and that no one had ever made such a request before.2 i According to McGuiness, members will frequently come to the hall and ask how they stand on the list, but they are satisfied by Respondent's officials showing them their individual work cards as was done with respect to the requests herein. McGuiness could not explain how the showing of members their own cards in any way shows how they stand on the list. When asked about this McGuiness then opined that when members make such requests, they are 21 As noted I have credited the Charging Parties that a number of other oral requests were made to various officials of Respondent, includ- ing McGuiness 21 With the exception of one retired member, which resulted in a prior NLRB charge and a settlement 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD only interested in making sure that there is a record that they called in to the hall.22 Insofar as the confidentiality issue is concerned, McGuiness asserts that he became aware of Respondent's policy against disclosure of members ' names and address- es when he was told about it in 1967 by another union official. He claims that has always been Respondent's policy as far as he knows. However, he could not point to the policy being in writing. At one point in his testi- mony he asserted that Respondent's constitution sets forth this policy. When pressed further, McGuiness re- ferred to section 31 of the constitution which relates only to the election procedure of Respondent, and states that qualified candidates shall be permitted to examine membership lists containing names and addresses of members once within 30 days prior to the election23 It is undisputed that Respondent's policy in regard to elections is not to permit unlimited inspection of mem- bership lists. The candidates come to the office with their literature, Respondent orally gives them the names and addresses of members, they put them on the enve- lopes, and Respondent's officials accompany the candi- dates to the Post Office. When McMurray was running for business manager against McGuiness, he met with the election committee pursuant to this procedure. McMur- ray admitted that he read out loud the names and ad- dresses of members into a hidden tape recorder that he had with them at the time, in order to obtain that infor- mation.24 Extensive testimony was adduced by Respondent of the Charging Parties concerning their work records during 1982 and 1983. Additionally, a stipulation con- cerning this information was also introduced into the record. Respondent also submitted into evidence its work cards and the District Council pension sheets. The above evidence tends to establish that during the time periods in question herein, more specifically from the summer of 1982 through the spring of 1983, all three Charging Parties were working for a significant amount of the time. Each of them received a number of referrals from Respondent during this period of time as well as obtaining a number of jobs on their own. However these records and this testimony do not dispute, and in fact tend to corroborate the testimony of the Charging Par- ties, that for the most part, when they made their re- quests to see the lists, they were not employed and had been awaiting referral from the hall.25 22 McGumess admitted however that at times members will be inter- ested in finding out how many people are ahead of them on the list, and that business agents will sometimes furnish that information to the member 23 This provision appears to be in compliance with and in response to sec. 401(c) of the LMRDA , which requires unions in election campaigns to comply with all reasonable requests of candidates to distribute mail and literature and that candidates have a right once within 30 days prior to an election to inspect membership lists 24 The date of this incident is not clear from the record , but it appears to have been at some point shortly prior to the election which was held on June 20, 1983 21 I note in this connection that Clarke admitted that he had not called Respondent in May 1983 when he requested to see the list, but he had been denied a job that he thought he was entitled to receive McMurray also admitted that he was working in late January 1983, when he accom- panied Harte to ask to see the list, pursuant to Harte's request, because III. ANALYSIS A. The Exclusivity of the Hiring Hall Respondent contends that its hiring hall herein is non- exclusive in nature, because in order for such an arrange- ment to be considered exclusive, "all" hiring authority must be reserved to the Union. I do not agree. It is well settled that a hiring is deemed to be exclusive where the union retains exclusive authority for referrals for some specified period of time, such as 24 or 48 hours, before an employer can hire on its own. Mountain Pacific Chapter AGC, 119 NLRB 883 (1957); Boilermakers Local 587 (Stone & Webster), 233 NLRB 612, 614 (1977); Car- penters Local 78 (Murray Walter), 223 NLRB 733, 734- 735 (1976). Thus to the extent that that union retains such exclusive authority during this period, it operates an exclusive hiring hall. Similarly, an exclusive hiring hall can also exist where an employer has the contractual right to bring in a cer- tain number or percentage of employees onto a job. Bricklayers Local 8 (California Mason Contractors), 235 NLRB 1001, 1003 (1978). Thus the employers herein have given up and delegated to Respondent the right to hire the first employee on the job and 50 percent of the remainder after the employer selects a second employee. I conclude that to such an extent an exclusive hiring hall is contemplated by the agreement. Heavy Construction Laborers Local 663 (Robert A. Treuner), 205 NLRB 455, 456 (1973).26 Since the record is bereft of any evidence that the terms of the contract have not been adhered to, I con- clude that to the extent specified, Respondent operates an exclusive hiring hall, and is subject to the obligations and requirements which flow from such a finding.27 B. The Obligation to Permit Inspection of and Supply Information Regarding Respondent's Referral Records It is well settled that a union which operates an exclu- sive hiring hall breaches its duty of fair representation in violation of Section 8(b)(1)(A) when it arbitrarily denies requests of its members for job referral information, where such requests are reasonably directed towards as- certaining whether such members have been properly treated in connection with the operation of the hiring hall. Operating Engineers Local 324 (AGC of Michigan), 226 NLRB 587 (1976); Bartenders Local 165 (Nevada Resort), 261 NLRB 420 (1982); Electrical Workers IBEW Local 575 (Coleman Electric), 270 NLRB 66, 69-70 (1984). The Board has found violations with respect to the de- nials of various types of requests in this connection, such Harte had been threatened the day before by Ford Harte as noted, on the other hand, was not working on these days and was awaiting referral 26 See also Carpenters Local 2S (Mocon Corp.), 270 NLRB 623 (1984), where up to 25 percent of the employees could be designated by the em- ployer 24 The testimony that a majority of Respondent's members do not use the hiring hall at all , and obtain jobs on their own, in no way refutes or contradicts this finding CARPENTERS LOCAL 608 (VARIOUS EMPLOYERS) 755 as inspecting the hiring hall lists,28 copying the lists,29 or even asking the union to compile and furnish hiring hall information.30 Even where a union operates a nonexclusive hiring hall, the Board has found that the union still owes a duty of fair representation towards those who seek to utilize its services. Bricklayers Local 8, supra at 1005-1008; Plumbers Local 13 (Mechanical Contractors of Rochester), 212 NLRB 477, 479 (1974); Crouse Nuclear Energy Serv- ices, 240 NLRB 390 (1979). This duty has been held to have been violated where the union in a nonexclusive hiring hall discriminatorily refuses its members access to and services of the hiring hall because they have engaged in intraunion political ac- tivity. Operating Engineers Local 4 (Carlson Corp.), 189 NLRB 366 (1971); Teamsters Local 923 (Yellow Cab), 172 NLRB 2137 (1968); Crouse Nuclear, supra. The Board has also found the duty of fair representa- tion to have been violated where the operator of a non- exclusive hiring hall refused to permit the utilization of the hiring hall, because of other arbitrary reasons, such as the fact that the applicant was not a union member or because he worked for a nonunion contractor, Plumbers Local 13, supra, or because of his nonunion status and be- cause he refused to pay a fine to a sister local. Bricklayers Local 8, supra. In the instant case the evidence is more than sufficient to support a finding that the various requests of the Charging Parties were denied because of activities in op- position to the policies of Respondent and its incumbent officials, including their reelection. The record is clear that all the Charging Parties ran or attempted to run for union office against Respondent's incumbent officials, spoke out at Respondent's meetings, and distributed literature to the membership highly criti- cal of the operation of Respondent in general and the current leadership in particular. That Respondent and its officials harbored substantial animus towards the exercise of these protected concerted activities by the Charging Parties cannot be doubted. Thus at Respondent's October 18 meeting, immediately after McMurray made a critical comment about Re- spondent's assessment policy, McGuiness obtained the floor and proceeded to attack the literature distributed by the Charging Parties as well as the' Charging Parties themselves. McGuiness referred to them as "a small group or minority that is printing garbage and passing it out." He also characterized the publications as "deliber- ate lies and indecent pieces of literature," and asked the members "to ignore this garbage if you have any decen- cy at all." He concluded by asking the membership not to "be like this small minority group, do not lower your- self to their class." I would note that this diatribe took place at the same meeting during which McMurray asked about the job list 28 Bartenders Local 165, supra, Fischbach/Lord Electric Co, 270 NLRB 856, 863 (1984) ze Plumbers Local 513 (Master Contractors), 264 NLRB 415, 422 (1982), Plasterers Local 90 (Southern Illinois Builders), 236 NLRB 329 338 Boilermakers Local 587, supra (1978), 30 Operating Engineers Local 324, supra, Carpenters Local 1080 (Axley & Burch & Lamb Corp.), 255 NLRB 80, 87 (1981) and was told by McGuiness that the Local does keep a list and that any member could see it any time that he or she wanted. The very next day, as noted, Clarke, McMurray, and Harte all came to the hall, requested to see the list, and were refused without being given a reason by Respondent. Additionally, at another meeting on February 28, 1983, McMurray raised a question about the list, and was told angrily by John F. O'Connor that since he had filed charges against Respondent with the NLRB, Respondent would not answer any questions about the job list. McGuiness then commented that members who bring charges at the Labor Board cost the Local money. Later on in the same meeting, after McMurray criticized the salaries of business agents, John F. O'Connor interrupted and referred to McMurray as an "ungrateful bastard" and refused to allow him to continue speaking Finally, O'Connor observed that Harte and McMurray had brought NLRB charges and that they were "bastards trying to destroy the Union." I note that these remarks on February 28, 1983, were contemporaneous with both oral and written requests by the Charging Parties to see the lists and obtain hiring in- formation. Finally, on January 25 and 26, after having been again refused access to the job lists, Harte began to distribute dissident literature to members. On January 25 he was threatened by Ford with being beaten up if he did not desist. On January 26, along with McMurray, they were both told by John F. 0' Connor that they would be ar- rested if they continued distribting literature to members. Thus the above evidence of animus towards the Charging Parties for their protected activities, coupled with the fact that McGuiness told the membership at the October 18 meeting that Respondent's job list was avail- able to be seen at any time, leads me to the conclusion that the Charging Parties were treated disparately and discriminatorily with respect to their requests for hiring hall information. It would seem therefore that the issue of whether or not Respondent operates an exclusive hiring hall is not crucial to the disposition of the instant matter. What are crucial and in my judgment determinative of the issue of the legality of Respondent's conduct herein are the ques- tions of the reasonableness of the Charging Parties' re- quests and the validity of Respondent's professed reasons for denying these requests. Indeed, as Respondent cor- rectly observes, the Act does not impose an absolute ob- ligation to comply with the requests for hiring hall infor- mation in all circumstances. Operating Engineers Local 324, supra, in fact makes it clear that a union must merely "deal fairly with an employee's request for infor- mation." Respondent cites Detroit Edison Co., 440 U.S. 301 (1979), as the Supreme Court opinion on the duty of em- ployers to supply information to unions, and urges that the situation is analogous to the instant matter. Thus Re- spondent urges an adoption of the "balancing test" of conflicting interests set forth therein, and argues that the interest of the Charging Parties in obtaining the hiring hall information herein can and should be outweighed by 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD various legitimate interests of Respondent. Although I am not persuaded that the analogy to Detroit Edison, supra, is necessarily apt, I do find some similarities in the rationales and the underlying considerations in both situ- ations. I also believe that the admonition in Operating Engineers Local 324, supra, to "deal fairly" with requests for hiring hall information presupposes some sort of bal- ancing test between the necessity for the information and the possible legitimate and compelling interests that a union may have in denying the requests. I now turn to an examination of these issues. The ini- tial question to be decided is whether the requests of the Charging Parties had a reasonable basis. I credit the testi- mony of the Charging Parties that they requested to see the job lists because they reasonably believed that they were being discriminated against by Respondent in the operation of its hiring hall. In this connection I note that the evidence discloses that nearly all the requests were made when the Charging Parties were unemployed and awaiting referral from the hall, while at the same time Respondent's officials were announcing 100-percent or plentiful employment among the membership. McMurray and Clarke were both offered referrals by Respondent outside of their respective specialties, contrary to Re- spondent's normal practice of referral by specialty. In Clarke's case, this referral by Respondent raised even more suspicions in his mind by virtue of the fact that on the very day that he was offered the job outside his spe- cialty he was told that Respondent on the same day had referred five men to jobs in Clarke's specialty. Thus I find it quite reasonable for Clarke to have concluded from these facts that the referral to him by Respondent outside his specialty was offered knowing he would refuse, and was an attempt to circumvent him on the list and not to offer him jobs in his specialty that it gave out to others on that day. Thus it was quite reasonable for him to request to see the list and find out who had been referred to the ceiling jobs on that day, and where these members stood on the list in relation to him. Additionally, I note that Clarke lost a job that he thought he had obtained on his own, after having been told by the employer that he needed only clearance from the hall to work. When Clarke called Respondent to ask about this job, he was told by O'Connor that two men had already been referred from the hall to that job. It may very well be true that Respondent had, as testified to by O'Connor, already sent out the two men prior to Clarke having called. However, that is not the issue. Once again these facts certainly could provide Clarke, and I find that it did, a reasonable belief that he was again being circumvented by Respondent. Thus the offi- cial at Duncan apparently said nothing to him about having already called the hall and clearly led Clarke to believe that he needed only to receive Respondent's ap- proval to obtain the job. When he was told by O'Connor that men had already been referred, it certainly could have raised suspicions in his mind that once again he was being treated unfairly and that perhaps no one had been dispatched until after his interest in the job had become known. Thus when he asked McGuiness to see the list to verify who had been sent out in his place, he clearly had a reasonable basis for the request. I also note that the contract provides for a 50-50 ratio of job referrals, so that the referral of the two men, while denying the Employer the right to hire someone of his choice, may have violated the contract. This provides but another reason to justify Clarke's checking the refer- ral list. Finally, I agree with the General Counsel's contention that the way Respondent operates its hiring hall provides in and of itself additional support for the Charging Par- ties' beliefs. Thus contrary to prior practice, Respondent since 1979 has not utilized a shapeup or hiring hall where employees appear, sign a list, and are dispatched. Persons seeking employment now sign up and receive re- ferrals by phone, and consequently have no opportunity to ascertain who else may have been referred or in what order, and cannot determine whether referrals have been fairly distributed. The Charging Parties were constantly complaining about the unfairness of this system both in their literature and at meetings. In these circumstances, I find Respondent's system was supportive of the reasona- ble belief of the Charging Parties that they were being discriminated against in the operation of the hiring hall by Respondent. Respondent argues on the other hand that the Charg- ing Parties had no belief, reasonable or otherwise, that they were being treated unfairly by Respondent's hiring hall, and that the real motive for their requests for hiring hail information was to obtain an additional outlet for their dissemination of campaign literature. Respondent contends initially that each of the Charging Parties during this period was working for much of the time. Although that may be true, they were also sometimes out of work for long periods of time31 while awaiting referrals and while Respondent 's officials were boasting about 100-percent employment of its membership. More- over, a number of the jobs received by the Charging Parties were obtained on their own. These jobs of course can provide no basis for disbelieving their testimony that they thought they were being treated unfairly, since Re- spondent had no role in referring these jobs to them. Indeed in one instance, as noted above, Clarke thought he had obtained a job on his own from an employer, only to be told by Respondent that it had already filled these positions, which lends further support to Clarke's belief that Respondent may have been discriminating against him. I therefore find Respondent's reliance on the fact that the Charging Parties were working for much of the time in question to be misplaced and far from suffi- cient to conclude that they were not acting in good faith when they made their requests. Respondent also points to the fact that during the late January visits to the hall to request to see the list, Harte and/or McMurray distributed campaign literature, and on the second day McMurray took a photograph of O'Connor, admittedly for possible campaign use. Addi- tionally, Respondent notes that McMurray, who was running for office against McGuiness in the June 1983 election, admittedly circumvented Respondent's cam- paign rules with respect to disclosure of names and ad- 3t For instance McMurray was out of work from January 31, 1983 CARPENTERS LOCAL 608 (VARIOUS EMPLOYERS) 757 dresses of members, by tape recording this information without the knowledge or consent of Respondent. Final- ly, Respondent argues that the fact that both Harte and McMurray, the two leading dissidents, sent the identical letters to Respondent requesting the information, at, rela- tively the same time during the heat of the election cam- paign, demonstrates that they lacked credibility in con- nection with their stated purpose. I do not agree. I note initially that the Charging Parties began making requests to see the lists from as far back as the summer and fall of 1982, well before McMurray began to run against McGuiness for business manager. I also do not believe that the fact that Harte and McMurray distribut- ed literature on January 25 and 26 necessarily establishes that their requests to the list on that date were not made in good faith. They may have suspected based on prior events that their requests would again be refused or put off, but I am still persuaded that they did believe they were not being treated fairly and wished to see the list in order to investigate whether their referral rights were being protected. I attach little significance to McMurray's taking a pic- ture of O'Connor, since he credibly explained that he brought the camera in order to photograph anticipated violence, based on Harte's being threatened the day before by Ford for distributing literature. The fact that he took the picture of O'Connor although no violence took place,32 and admitted that he might use it for cam- paign purposes, is again far from sufficient to establish that the request for referral information was not made in good faith. As for McMurray's secretive taping of names and ad- dresses of members contrary to Respondent's regulations, it is clear that he intended to use the information for campaign purposes. However, the taping did not occur contemporaneously with the numerous hiring hall re- quests that he made, and has not adduced any other evi- dence to establish a connection between these events.33 Respondent also contends that the good-faith assertion by the Charging Parties of their belief that they were discriminated against was rejected by the Board itself, when it refused to issue complaint on the 8(b)(2) allega- tions made by the Charging Parties concerning the dis- criminatory implementation of referrals by the Union. I again do not agree. The record is silent as to what facts the Region evaluated in its decision or the basis for its action. The Regional Director's investigation serves a more limited function than the hearing necessary under the Act, and cannot therefore serve as a replacement for the Board's adjudicatory responsibility. Hotel & Restau- rant Employees Local 274 (Warwick Caterers), 269 NLRB 482 (1984). Moreover, I note that the withdrawal of Harte's charge took place on May 9, 1983, subsequent to all of his requests. The record is silent as to the dates of 32 1 note that O'Connor did threaten them with arrest for giving out literature 89 1 find , contrary to Respondent's assertions, nothing suspicious or damaging about the fact that Harte and McMurray sent identical letters to Respondent requesting hiring hall information around the same time They freely admitted using an attorney to prepare the letters, and the evi- dence is clear that both of them were out of work and awaiting referral at the time that they sent out their letters the withdrawals of the other charges, but it appears that they were also subsequent to their requests to see the lists. Thus the disposition of the 8(b)(2) portion of the charges is not determinitive even as to the issue of whether in fact Respondent discriminated against the Charging Parties in referrals, much less as to whether they believed that they were discriminated against or treated unfairly by Respondent's hiring hall. Moreover, in my view, the belief that the Charging Parties need have, that they were treated unfairly, need not rise to the level of discrimination which would be unlawful under the Act in order to justify their requests to see hiring hall records. Finally, I am of the opinion that the written requests for information made by Harte and McMurray were also neither overbroad nor burdensome. The Charging Parties had been denied access to the job lists for months with- out any explanation by Respondent. Thus the request for information for a 6-month period was appropriate. No evidence was submitted by Respondent that the request would create any significant burden in compiling the in- formation sought by the Charging Parties. As for the request for addresses and phone numbers, they credibly testified that they wished to be able to verify whatever information they might be given from Respondent's records. This appears to be a reasonable concern,34 particularly where as here Harte and McMur- ray both questioned the reliability and accuracy of their worksheets kept by Respondent and previously shown to them instead of the records that they sought. Additionally, I would note Clarke's unrefuted testimo- ny that some jobs dispatched by Respondent, to an empty building for example, are likely to be and usually are of longer duration. Sometimes jobs can last up to 2 years. Clarke also testified that he never had been dis- patched by Respondent to any job that lasted a year or more. Since the duration of jobs is not included on any of Respondent's hiring hall records, members cannot as- certain this information from merely inspecting the records. Thus it would be necessary to contact the em- ployees sent out on jobs, in order to determine how long each dispatch lasted. Therefore, this provides but another reason for the Charging Parties to request addresses and phone numbers, so that they could find out whether they were being discriminated against in assignments with re- spect to job duration. Moreover, even if it were concluded that an additional purpose of some or even all the various hiring hall re- quests made by the Charging Parties was to use the in- formation for campaign purposes, Respondent would still not be privileged to deny their requests, as long as the requests were also, as I have found, based on and moti- vated by a reasonable belief that they were being dis- criminated against in the hiring hall. Analogizing, as Re- spondent urges, to the Detroit Edison, supra, type situa- tion, the Board has held that where a union's request of an employer for information has a legitimate purpose, the fact that it may desire to use such information for organi- 34 See Operating Engineers Local 324, supra, where this concern was advanced by the charging party, and the Board found the request for ad- dresses and phone numbers to be appropriate. 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD zational or campaign purposes does not provide a de- fense to an employer's refusal to supply such informa- tion. Thus, "it is well established that where a union's re- quest for information is for a proper and legitimate pur- pose, it cannot make any difference that there may also be other reasons for the request or that the data may be put to other uses." Associated General Contractors of Cali- fornia, 242 NLRB 891, 894 (1979).35 Respondent raises several other defenses to its refusal to permit access by the Charging Parties to its records. Preliminarily it argues that any Board order requiring Respondent to furnish hiring hall information which en- compasses disclosure of names and addresses of union members is contrary to the Labor Management Report- ing and Disclosure Act of 1959. Respondent specifically refers to section 401(C) of that act, which sets forth re- quirements for the disclosure of members names and ad- dresses in an intraunon election campaign, and argues that this establishes that "Congress in 1959 chose to allow unions in all instances to determine whether or not its membership lists would become available for public use." Thus Respondent contends that the LMRDA pro- scription against disclosure supercedes any rights under the NLRA. I find Respondent's position on this issue to be without merit. The section of the LMRDA cited by Respondent merely regulates intraunion election campaigns in con- nection with disclosure of membership lists to candidates and, even at that, does not prohibit a union from grant- ing more extensive disclosure than the statute requires. Particularly since the overall purpose of the LMRDA is to protect rank-and- file members from potential abuse by union officials, 3 a it cannot reasonably be construed to prohibit a union from disclosing membership information to its members in appropriate circumstances. Clearly the intent of the statute is to provide a minimum amount of disclosure in an election campaign, not to prevent a union from doing so, or authorizing a union to decline to do so in appropriate situations. Finally, in this connection I note the administrative law judge's decision in Operating Engineers Local 324, supra, where he observed that he did not construe vari- ous provisions of the LMRDA as "delimiting the scope of a union's obligations to furnish information to the em- ployees it represents." Id. at 599. Respondent also contends that in applying the balanc- ing test set forth in Detroit Edison, supra, that it carefully and in good faith evaluated the legitimacy of the Charg- ing Parties' requests, balanced them against legitimate union interests, and reasonably refused the requests. Respondent relies on the testimony of its officials, Boyle and McGuiness, that after receiving the written requests from McMurray and Harte in February 1983, 56 See also Columbus Maintenance Co., 269 NLRB 198 (1984), where the Board, in affirming an administrative law judge 's finding a violation in an employer's refusal to supply phone numbers of unit employees to a union, stated as follows "As the Union's request was related to its role of bargaining representative and not solely to its campaign needs, we agree with the judge's conclusion that Respondent violated Section 8(aX5) and (1) by refusing to supply the requested telephone numbers " 96 Marshall v Laborers Local 478, 461 F Supp 185, 188 (1978) they reviewed the members' work cards and District Council fringe benefit reports, and concluded that both Harte and McMurray had been working steadily for the 6-month period covered by their requests for hiring hall information. This evidence allegedly convinced McGui- ness that Harte and McMurray had not been treated un- fairly in connection with referrals, and that they had no reason to see the records, particularly since the disclo- sure of names and addresses of members allegedly violat- ed a longstanding union policy of confidentiality of this information. I find Respondent's arguments as well as McGuiness' testimony far from convincing. First, these explanations do not account for Respondent's numerous other denials of the previous and subsequent oral requests to see the job lists made by Harte, McMurray, and Clarke. These denials occurred in the summer of 1982, October 1982, and January 1983, all before Respondent made its alleged evaluations of the propriety of Harte and McMurray's written requests in February 1983. Moreover, no testimo- ny was adduced that any such evaluation was made of Clarke's work history, while he was also denied access to the job lists on a number of occasions, even as late as May 1983, after the incident with the Duncan job that he had lost. Second, even as to Harte's and McMurray's written requests, the testimony of Respondent's witnesses is not persuasive. They claim that their review of the records of Harte and McMurray convinced them that the mem- bers had been working steadily and were therefore treat- ed properly by the hiring hall. However it was admitted that Respondent's officials did not examine its referral or shapeup lists nor examine worksheets of other members. It was clear that the complaints of Harte and McMurray as well as Clarke asserted that they believed other mem- bers may have received referrals which rightly should have gone to them. Thus, it is essential to compare the records of other members with the Charging Parties, in order to make a reasonable evaluation of their claims.37 The failure of Respondent to do so detracts substantially from the reliability of McGuiness' testimony and Re- spondent's contention that it reasonably viewed the Charging Parties' claims as lacking in substance. In any event, in my judgment it is not the function of Respondent to evaluate the merits of the Charging Par- ties' asserted contentions. Analogizing once again to the Detroit Edison-type of information request, as Respond- ent urges, the Board has consistently held that the merits of the union's underlying grievance is not significant, and that an employer cannot comply with its obligation to disclose information by making its own evaluaton of the information requested and concluding even if in good faith, and/or correctly, that the grievance is nonmentor- ious, and/or the information is not essential to the union's decisionmaking functions Associated General Contractors, supra at 894. See also Conrock Co., 263 NLRB 1293, 1294 (1982); Herk Elevator Maintenance, 197 NLRB 96, 97 (1972). 97 I note that although the Charging Parties did receive some referrals from Respondent during the period in question , they also obtained a number of their jobs on their own CARPENTERS LOCAL 608 (VARIOUS EMPLOYERS) Thus the Charging Parties are entitled to judge for themselves herein whether their hiring hall rights have been violated and need not be satisfied by Respondent's investigation of their claims.38 Turning to Respondent' s allegation that its need for "confidentiality" with respect to phone numbers and ad- dresses justified its refusal to disclose the information, I find this contention to be entirely specious and pretex- tual, and insufficient in any event to provide it with a de- fense herein . Respondent's various officials, including McGuiness, who denied the numerous requests for hiring hall information by the Charging Parties, never at any time mentioned to them that confidentiality was a reason for its actions in denying the requests.39 Indeed the oral requests made by the Charging Parties contained no ref- erence to addresses or phone numbers. Furthermore, McGuiness seems to be the only official of Respondent who was aware of this well-known policy of "confiden- tiality." His testimony that he became aware of it when informed years ago by a union officer who has died since lacks credence. Admittedly, the policy has never been memorialized in any writing or in Respondent's constitu- tion or bylaws.40 Most significantly, John F. O'Connor, one of Respond- ent's business agents and actively involved with hiring hall procedures, was obviously unaware of this alleged "policy," since he never mentioned it in his testimony as a reason for denying any of the requests made to him. In fact when asked, O'Connor stated that he was unaware of any union policy with regard to disclosure of this type of information, and that he refused to permit it because he felt that the Charging Parties' worksheets were suffi- cient for their inquiries .4 1 Moreover, the belated partial corroboration of Boyle on this issue came only as a result of leading questions and only referred to McGui- ness mentioning to him confidentiality as to phone num- bers, and not addresses, as a factor in McGuiness' deci- sion to refuse to disclose the information to Charging Parties Harte and McMurray. Thus, I conclude that McGuiness' assertion of confi- dentiality as a reason to refuse the requests was an after- thought conjured up by Respondent after the fact to at- tempt to justify its discriminatory actions against the Charging Parties 42 Assuming arguendo, that the confidentiality defense had in fact been considered by Respondent in its deci- sion, it has still fallen far short of meeting its burden of ss Indeed it may very well be that the information disclosed may have satisfied the Charging Parties that they were being properly treated See Operating Engineers Local 324, supra at 598 " See McDonnell Douglas Corp., 224 NLRB 881, 890 (1976) 40 McGumess' attempt to establish that the policy is in writing, by pointing to the constitutional provisions dealing with elections, is equally unconvincing Clearly this provision is merely in compliance with the LMRDA's requirements and does not reflect union policy of confiden- tiality 11 This assertion is of course preposterous, since their worksheets do not show records for other members, nor where the Charging Parties stood in relation to others, which was obviously their true concern 42 I also note in this connection my findings above that McGuiness af- firmatively stated at a union meeting that Respondent 's referral and sign in lists were available for anyone to see Thus it would be unlikely for him to have made such a statement if a policy of confidentiality had been in existence which would have prevented such lists from being inspected 759 establishing the validity of such a defense . Thus when a claim of confidentiality is raised, the party asserting that claim has the burden of proof. Pfizer Inc., 268 NLRB 916, 919 (1984). Respondent in relying on Detroit Edison , supra, claims that Respondent has "unequivocally established that the information sought has always been treated with the highest degree of confidentiality." This is a gross mis- characterization of the record. Indeed as I have found above, this "policy of confidentiality" seems to have only been known to McGuiness and no other officials such as O'Connor. As for telephone numbers and ad- dresses, McGuiness testified that he felt that a lot of people have unlisted numbers and do not want other people to know where they live and they are entitled to that privacy. However, this unsubstantiated and unsup- ported testimony has no probative value herein. Re- spondent has not established the basis of McGuiness' feelings in this regard, and in fact has not even proven that there are any members who even have unlisted num- bers, much less that they have expressed a desire for pri- vacy. Thus, contrary to Detroit Edison, in which the employ- er therein had promised the employees that it would keep the information requested by the Union to be confi- dential, there is no evidence herein that the alleged policy of confidentiality was disseminated to employees, or that any employees sought to have the information kept confidential,43 or that the employees had an expec- tation that this information would be kept confidential.44 Moreover, the Board has rejected the argument that phone numbers and addresses are "confidential" in the context of a request for hiring hall information. Operating Engineers Local 324, supra; Bartenders Local 165, supra. Indeed, if Respondent were truly concerned about the members' rights to privacy, it could have offered to re- lease only the information with respect to those members who have unlisted numbers. Or it also could have of- fered to furnish the information requested aside from the names and addresses . It is noted in this connection that Respondent's referral list contains neither the members' phone number nor addresses. Yet Respondent made no such alternative offers. This is but another indication of Respondent's arbitrary conduct.45 In summary, I have concluded above that the Charg- ing Parties requested inspection of Respondent's hiring hall lists and the furnishing of various items of informa- tion in regard thereto, based on a reasonable belief that they were being treated unfairly by Respondent in its op- eration of the hiring hall. I have also found that Re- spondent refused to comply with these requests, (1) for discriminatory reasons, because of the Charging Parties' having engaged in protected concerted activities, and (2) arbitrarily and without legitimate justification in breach of its duty of fair representation . By this conduct Re- spondent has violated Section 8 (bXl)(A) of the Act, and I so find. 43 Salt River Valley Water Users' Assn., 272 NLRB 296, 297 (1984), Pfizer, supra at 919 44 Ibid 46 See Operating Engineers Local 324, supra at 598 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. The Associations, and its employer-members, are employers engaged in commerce within the meaning of Section 2(5) of the Act. 2. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By denying John Harte, Franklin McMurray, and Eugene Clarke the right to review and inspect hiring hall records maintained by Respondent, and by refusing to supply them with information with regard to the oper- ation of its hiring hall, 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 affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(b)(1)(A) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action de- signed to effectuate the purposes and policies of the Act. Respondent argues in this connection that no affirma- tive relief is appropriate, since at this time no reasonable need exists to furnish the information. Respondent cites Operating Engineers Local 324, supra, where the Board affirmed the administrative law judge's recommended order which did not provide for any affirmative relief. Again Respondent refers to the Regional Office's deci- sion on the 8(b)(2) charge having now precluded the ex- istence of any current need for the Charging Parties to have access to the information requested. Contrary to Respondent's position, I am persuaded that affirmative relief is appropriate in the circumstances herein. As noted above, I attach little significance to the Region's refusal to issue an 8(b)(2) complaint , since no hearing has been held with respect to these issues. As also noted, I do not believe that the Charging Parties' belief of unfair treatment must rise to the level of dis- crimination under the Act to warrant their satisfying themselves that they have been treated properly. Al- though it is true that the events justifying the Charging Parties' reasonable belief occurred in 1982 and 1983, I do not think it would be inappropriate to even now require disclosure of information relating to that period of time. It is true, as Respondent points out, that in Operating Engineers Local 324, supra, the judge found, in agree- ment with the position of the General Counsel, that dis- closure of information would be useless to the charging party at the time, and recommended only a cease-and- desist order. However, as the General Counsel did not dispute and apparently did not except to this order, the precedential significance of this aspect of the case is somewhat dubious. More to the point and more dispositive with respect to this issue is Bartenders Local 165 (Nevada Resort Assn.), 261 NLRB 420 (1982), a more recent case, where the ad- ministrative law judge, affirmed by the Board, ordered respondent to affirmatively honor requests by the charg- ing party to review and inspect hiring records. See also Carpenters Local 1080 (Axley & Burch), 255 NLRB 80 (1981), in which the Board also ordered respondent af- firmatively to make hiring records available to referral applicants. Finally, I also have concluded that Respondent discri- minatorily denied the Charging Parties access to its hiring hall records because of their engaging in dissident intraunion activities. This also militates in my view in favor of ordering affirmative relief against Respondent.48 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed44 ORDER The Respondent, Carpenters Local 608, United Broth- erhood of Carpenters and Joiners of America, AFL- CIO, its officers, agents, and representatives, shall 1. Cease and desist from (a) Denying employees whom it represents in collec- tive bargaining the right to review or inspect hiring hall records, or refusing to provide such employees informa- tion on request with regard to the operation of its hiring hall, when such information or request is related to an alleged failure to properly refer such employees, because the employees engaged in intraunion political activities or other protected concerted activities. (b) Arbitrarily denying employees whom it represents in collective bargaining the right to review or inspect hiring hall records, or refusing to provide such employ- ees information with regard to the operation of its hiring hall, when such information or request is related to an alleged failure to properly refer such employees. 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 necessary to effectuate the policies of the Act. (a) Honor requests by Eugene Clarke, Franklin McMurray, and John Harte to inspect or review hiring hall records, and provide such employees information on request with regard to the operation of its hiring hall, when such requests are related to the alleged failure to properly refer such employees. (b) Post at its business offices, hiring hall, and meeting hall copies of the attached notice marked "Appendix."48 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained 46 This not to say that any future request by the Charging Parties or other individuals for hiring hall information with respect to other periods of time must necessarily be granted Any such requests must be evaluated with respect to their reasonableness as well as the alleged reasons by Re- spondent for any future denials 47 If no exceptions are filed as provided by Sec 10246 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 48 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " CARPENTERS LOCAL 608 (VARIOUS EMPLOYERS) 761 for 60 consecutive days in conspicuous places including (c) Notify the Regional Director in writing within 20 all places where notices to members are customarily days from the date of this Order what steps the Re- posted . Reasonable steps shall be taken by the Respond- spondent has taken to comply. ent to ensure that the notices are not altered, defaced, or covered by any other material.