Heavy And Highway Construction Workers' Local Union No. 158 (Contractors' Association Of Eastern Pennsylvania And Worthy Brothers Pipeline Corp.)

1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Heavy and Highway Construction Workers' Local Union No. 158 (Contractors' Association of Eastern Pennsylvania and Worthy Brothers Pipeline Corp.) and George H. Miller Jr. Case 4-CB-4318 24 June 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 31 July 1985 Administrative Law Judge George F. Mclnerny issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed an opposition brief, cross-exceptions, and a brief in support there- of. The Respondent also filed an opposition 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 only to the extent consistent with this Decision and Order and to adopt the recommend Order as modified. 1. The judge found that the Respondent violated Section 8(b)(1)(A) and (2) of the Act by causing Worthy Brothers to prematurely lay off, and later deny employment to, Donald L. Stamets because of his intraunion political and protected concerted activities. For the reasons set forth below, we dis- agree.2 Stamets was working for Worthy Brothers in Maryland during the summer of 1981. He was laid off by Foreman Everett Dimmick 2 or more weeks before the job ended. Subsequently, Stamets was denied employment by Worthy Brothers at a job in Harrisburg, Pennsylvania, a location within the Union's jurisdiction. The judge found that evidence falling in the cat- egory of permissible hearsay establishes that Fore- man Dimmick was instructed by Worthy Brothers' job superintendent Buck McIntyre to lay off Sta- mets from the Maryland job, because if they did not, they would "have problems when we moved up to Harrisburg." The judge found that it was the Respondent's business manager, Joseph DiGeron- imo, who threatened the problems in Harrisburg ' 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 2 Member Dennis, dissenting, would affirm the judge's findings of vio- lations of Sec 8(b)(1)(A) and (2) with respect to Donald L Stamets referred to by McIntyre, and that DiGeronimo's threat caused Worthy Brothers to lay off Stamets in Maryland and later deny him employment in Harrisburg. The judge's implication of DiGeron- imo is based on the fact that in 1979, DiGeronimo personally rebuked Stamets for voting along with a dissident faction and replaced him as steward be- cause of "union politics"; that the Respondent's field representatives, appointed by DiGeronimo, had repeatedly threatened to deny dissident mem- bers referral in violation of Section 8(b)(1)(A) of the Act; and that no logical explanation was of- fered for the premature layoff of Stamets, consid- ered by Worthy Brothers to be a valuable employ- ee. Contrary to the judge, we find the evidence falls short of establishing that in 1981 DiGeronimo re- quested the adverse job actions taken by Worthy Brothers against Stamets. There is no admissible evidence establishing that DiGeronimo expressly demanded Worthy Brothers' actions. Nor does the record contain any admissible evidence which could be construed as a request for such discrimi- natory action. Knowledge of political dissension within the Respondent may well have been the genesis of Mclntyre's stated concern that Worthy Brothers would have problems with the Respond- ent if it retained Stamets in Harrisburg. But a gen- eral atmosphere of tension created by intraunion politics is not sufficient to support a reasonable in- ference that DiGeronimo requested Worthy Broth- ers' actions. There being insufficient basis to estab- lish the requisite causal nexus between the Re- spondent and Worthy Brothers' adverse job actions against Stamets, we find the General Counsel failed to make out the 8(b)(2) violation alleged. Accord- ingly, we shall dismiss the allegation that the Re- spondent sought to have Worthy Brothers lay off Sta;nets, and later deny him employment. 2. We agree with the judge, for the reasons stated by him, that the evidence establishes that the Respondent discriminatorily failed and refused to refer Donald L. Stamets, Frank Rehm, Garland Walters, Robert Fisher, Kenneth Wiest, George Miller, Gerald Rockwell, and Gerald Rockwell III because of their intraunion political or protected concerted activities in violation of Section 8(b)(1)(A) and (2) of the Act. We find, however, that the General Counsel failed to establish that the Respondent discriminatorily denied Leonard Kel- melis referral. Kelmelis did not appear at the hear- ing. Although the Union's Health and Welfare and Pension Fund records show no hours reported for Kelmelis from 1980 through 1983, there is no evi- dence establishing that Kelmelis sought referral during this period. In any event, there is insuffi- 280 NLRB No. 124 LABORERS LOCAL 158 (CONTRACTORS OF PENNSYLVANIA) cient basis for finding that any failure to refer Kel- melis was discriminatorily motivated. There is nothing to indicate that Kelmelis campaigned on behalf of, or even supported, the dissident slate. The most that can be said is that in the 1979 "split- house" vote, Kelmelis was one of more than a hun- dred members who were on what the DiGeronimo forces considered the "wrong side." That evidence alone is insufficient to meet the General Counsel's burden to establish discriminatory motivation. Ac- cordingly, we shall dismiss the allegations that the Respondent acted unlawfully with respect to Kel- melis. 3. The complaint alleges that the Respondent dis- criminatorily refused to refer nine named individ- uals and "other employees" because of their in- traunion political and protected concerted activi- ties. The judge found that the Respondent unlaw- fully discriminated against those named in the com- plaint and directed the Respondent to reimburse them for any moneys lost as a result of its unlawful conduct. We agree with the judge with respect to the named individuals who have been discriminated against . The judge also found that other unnamed individuals may have suffered similar discrimina- tion and included "other members of the Respond- ent who may have been discriminated against in re- ferral to employment by reason of their intra-union political or concerted activity" in the make-whole provisions of his Order. The Respondent contends that the judge's make-whole provisions are overly broad. For the reasons set forth below, we agree. The Board has ordered remedial relief to un- named individuals similarly situated to discrimina- tees in a limited number of cases in which it has found sufficient evidence to establish widespread discrimination against a defined and easily identi- fied class.3 Common to these cases is the fact that unnamed discriminatees could be easily identified by a single, readily ascertainable, and definitive trait, most often the absence of membership in a particular labor organization. The line for deter- mining who is in or out of such a class is crisp and clear. No such clarity exists in defining a political dissident. In general, dissidents are defined by the course of action they choose. These actions vary in kind and degree, as well as impact, and these varia- bles, rather than any single objective measure, de- termine the response of the affected party. For these reasons, we find intraunion political dissidents do not form a definite group, identifiable by a single characteristic which easily separates them 3 Boilermakers Local 154 ( Western Pennsylvania Contractors), 253 NLRB 747 (1980), enfd mem 676 F 2d 687 (3d Cir 1982), Iron Workers Local 480 (Building Contractors Assn of New Jersey), 235 NLRB 1511 (1978), enfd mem 598 F 2d 611 (3d Cir 1979) 1101 from others. In the absence of such a quantifiable characteristic, we are unable to find that the discri- minatees in this case constitute a class or that dis- crimination on a classwide basis occurred. Further- more, we note that the General Counsel has not shown that the Respondent's referral system was structured to discriminate against those who engage in dissident activities and no general policy of discrimination against dissident members has been established. In these circumstances, discrimi- nation against a select few dissidents is not enough to establish discrimination against all dissidents. Rather, just as in employer discrimination cases, discrimination against each individual must be inde- pendently established based on a preponderance of the credited evidence. Thus, the General Counsel, in order to meet her burden in this case, was re- quired to establish that a particular individual en- gaged in dissident activities, that these activities were known to the Respondent, and that the indi- vidual sought and was denied referral because of these activities. The General Counsel has failed to show that any unnamed individuals sought and were denied referral. In these circumstances, we find discrimination against other unnamed individ- uals has not been established. The purpose of compliance is to determine the scope of a respondent's backpay liability based on violations already found by the Board and the en- forcing court .4 Were we to order backpay to indi- viduals not established as discriminatees, we would be inappropriately shifting to the compliance stage determinations which are to be made in unfair labor practice proceedings. We shall therefore modify the Order recommended by the judge by deleting any reference to other members of the Re- spondent who may be similarly situated to the named discriminatees.5 AMENDED CONCLUSIONS OF LAW Substitute the following for the judge's Conclu- sions of Law 4 and 5. * Sentry Armored Courier Corp, 275 NLRB 52 (1985). 5 We deny the General Counsel's request that we add to the remedial order a clause authorizing the Regional Director for Region 4, or his agent, on request, to have reasonable access to the Respondent's hiring hall records for an indefinite period since the remedy is unneccessary in the circumstances of this case Member Babson agrees with his colleagues that the fudge's proposed remedy was inappropriate considering all the circumstances of this case In so doing, he finds that Western Pennsylvania, above, and Building Con- tractors Assn of New Jersey, above, are distinguishable on the grounds that the General Counsel established widespread systematic discrimina- tion against unnamed employees in those cases In the instant case, he agrees with his colleagues that the General Counsel has failed to prove that the Respondent's referral system was "structured to discriminate" or that there was a "general policy of discrimination." Consequently, he finds it unnecessary to reach the issue of whether or not "intraunion po- litical dissidents" can, under appropriate circumstances, constitute a class 1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "4. By failing and refusing to refer Donald L. Stamets, Frank Rehm, Garland Walters, Robert Fisher, Kenneth Wiest, George Miller, Gerald Rockwell, and Gerald Rockwell III because of their intraunion political and protected concerted activities, the Respondent has violated Section 8(b)(1)(A) and (2) of the Act. "5. Except to the extent found above , the other unfair labor practice allegations of the complaint .are dismissed." ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and set forth in full below and orders that the Respondent, Heavy and Highway Construction Workers' Local Union No. 158, its of- ficers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening or coercing its members because they have been candidates for office in the Union, or supported candidates for office in the Union. (b) Failing or refusing to refer any of its mem- bers to jobs through its referral system because they engaged in intraunion political or protected concerted activities. (c) In any other manner restraining or coercing members in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act. (a) Make whole Donald L. Stamets, Frank Rehm, Garland Walters, Robert Fisher, Kenneth Wiest, George Miller, Gerald Rockwell, and Gerald Rockwell III for any loss of pay or other benefits suffered by reason of the discrimination against them in the manner set forth in the remedy portion of the judge's decision. (b) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all records, reports, work lists, and all other documents necessary to analyze the amount of backpay due under the terms of this Order. (c) Keep and retain for 2 years from the date of this decision permanent written records of its hiring and referral operations that will be adequate to disclose fully the basis on which each referral is made and make those records available to the Re- gional Director on request. (d) Submit four quarterly reports to the Regional Director, due 10 days after the close of each calen- dar quarter subsequent to the date of this decision, concerning the employment of the eight named dis- criminatees. The reports must include the date and number of job applications made to the Respondent Union, the date and number of actual job referrals made by the Respondent Union , and the length of employment during the quarter. (e) For the period of 2 years from the date of this decision place the hiring and referral registers on tables or ledges in its office in Harrisburg, Wilkes-Barre, Williamsport, and Bethlehem, Penn- sylvania, for access and inspection by the appli- cants as a matter of right on completion of each day's entries in such registers. (f) Post at all places where notices to members or applicants for referral are posted copies of the attached notice marked "Appendix. 116 Copies of the notice, on forms provided by the Regional Di- rector for Region 4, after being signed by the Re- spondent's authorized representative , shall be posted by the Respondent 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 to ensure that the notices are not altered , defaced, or covered by any other material. (g) Sign and return to the Regional Director suf- ficient copies of the notice for posting by all em- ployers utilizing its hiring and referral hall, if will- ing, at all places where notices to employees are customarily posted. (h) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 6 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 " 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. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. LABORERS LOCAL 158 (CONTRACTORS OF PENNSYLVANIA) WE WILL NOT threaten or coerce our members because they have been candidates for office in the Union or supported candidates for office in the Union. WE WILL NOT maintain or operate our job-refer- ral system in a discriminatory manner or in retalia- tion against members based on their internal union politics or other protected concerted activities. WE WILL NOT refuse to refer Donald L. Stamets, Frank Rehm, Garland Walters, Robert Fisher, Kenneth Wiest, George Miller, Gerald Rockwell, and Gerald Rockwell III, or any other individual, to available jobs in retaliation for their protected activities in opposition to our officials and their ac- tions. WE WILL NOT in any other manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL make whole Donald L. Stamets, Frank Rehm, Garland Walters, Robert Fisher, Kenneth Wiest, George Miller, Gerald Rockwell, and Gerald Rockwell III for losses they suffered as a result of the discrimination against them, with in- terest. WE WILL keep for 2 years permanent written records of our hiring and referral operations that will disclose fully the basis on which each referral was made and make these records available to the Regional Director on request. WE WILL for 2 years place the referral registers on tables or ledges in our offices for easy access and inspection by all applicants. WE WILL submit four quarterly reports to the Regional Director concerning the employment of each of the above-named employees. HEAVY AND HIGHWAY CONSTRUC- TION WORKERS' LOCAL UNION No. 158 Carmen P. Cialino Jr., Esq., for the General Counsel. Ira H. Weinstock, Esq. (Ira H. Weinstock, P.C.), of Harris- burg, Pennsylvania, for the Respondent. Jeffrey W. Davis, Esq. (Beckley & Madden), of Harris- burg, Pennsylvania, for George H. Miller, et al. DECISION GEORGE F. MCINERNY, Administrative Law Judge. The charge on which this proceeding is based was origi- nally filed on 24 October 1981 by George H. Miller Jr., an individual, on behalf of himself and 16 other persons, alleging that Heavy and Highway Construction Workers' Local Union 158 (the Union or Respondent), had dis- criminated and was continuing to discriminate against the members whose names were listed in the charge because they had exercised their rights, including the asking of questions at union meetings, and running for union office or supporting the candidacies of others who were run- 1103 ping for union office, all in violation of Section 8(b)(1)(A) and (2) of the National Labor Relations Act. On 30 November 1981 the Regional Director for Region 4 of the National Labor Relations Board issued a complaint alleging that the Respondent Union had violat- ed and was continuing to violate Section 8(b)(1)(A) and (2) of the Act. On 27 January 1983 the Regional Direc- tor notified the parties that he had approved an informal settlement of the matters covered by the complaint and that it would not effectuate the policies of the Act to in- stitute further proceedings. Charging Party Miller, by his attorney, filed an appeal from this action of the Regional Director to the General Counsel of the Board under Section 102.19 of the Board's Rules and Regulations. On 1 March 1984 the General Counsel, by the Director of the Office of Ap- peals, sustained the appeal, and instructed the Regional Director to prepare and issue a new complaint alleging violations of Section 8(b)(l)(A) and (2). Pursuant to this instruction, the Regional Director issued a new complaint on 19 March 1984, alleging that the Union had violated Section 8(b)(1)(A) and (2). The Respondent Union filed an answer denying the commis- sion of any unfair labor practices. In accordance with appropriate notice, a hearing was held before me in Harrisburg, Pennsylvania, on 20 through 24 August and 22 October 1984 and on 7, 8, and 9 January 1985, at which hearing all parties were repre- sented by counsel, and had the opportunity to present testimony and documentary evidence, to examine and cross-examine witnesses , and to argue orally. Following the hearing all parties submitted briefs, which have been carefully considered. On the basis of the entire record, including my obser- vations of the witnesses and their demeanor, I make the following FINDINGS OF FACT 1. JURISDICTION The jurisdiction of the Board here is based on the facts as alleged in the complaint and admitted by the Re- spondent Union that the Contractors' Association of Eastern Pennsylvania is a multiemployer trade associa- tion composed of a number of contractors and represents its employer-members in dealing with labor organiza- tions, including the Respondent. During the calendar year next preceding the issuance of the complaint the employer-members of the Association purchased goods valued in excess of $50,000 direct from points outside the Commonwealth of Pennsylvania. In addition, Worthy Brothers Pipeline Corp. is a New Jersey corporation which, in the calendar year next pre- ceeding the issuance of the complaint, performed serv- ices valued at more than $50,000 outside of the State of New Jersey. The parties agreed, and I find, that Worthy is an em- ployer within the meaning of Section 2(6) and (7) of the Act. 1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 8(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Union's Referral System 1. The organization of the Union Local 158 represents primarily' persons employed in highway and heavy construction such as dams, bridges, and pipelines in a 29-county area of east and east-central Pennsylvania with the exception of five counties in the Philadelphia metropolitan area. The Union's chief officer is the business manager, Joseph DiGeronimo, who has been a member of the Union since 1953, its president in 1955, and business man- ager since 1972. The business manager, who is a full-time employee of the Union,2 recommends to the Union's ex- ecutive board the appointment of field representatives, who are also full-time employees, to handle the day-to- day administration of collective-bargaining agreements and the referral of employees to various jobs in the Union's geographical area of jurisdiction. The size of this geographical area requires the maintenance of field of- fices, each staffed by a field representative, in Williams- port, Wilkes-Barre, and Bethlehem, in addition to the Union's headquarters in Harrisburg. There is no question that at most times material, James Andrews, Jerry Toma- setti, Edward Metzger, and Rocco Valvano have been Respondent's field representatives and agents. 2. Applicable collective-bargaining agreements The Union has for some years maintained collective- bargaining agreements with several employer groups which contracts, inter alia, provide for nonexclusive hiring and referral arrangements. The contracts between the Unions and the Contractor's Association of Eastern Pennsylvania in the period 1977-1986 provide that: It is customary practice for certain workmen to work exclusively for a given contractor. Workmen shall be free to select the contractor for whom they desire to work and the contractor shall be free to select the workmen members of the Unions whom he desires to employ, subject to Article IV (no dis- crimination). When any contractor desires to hire additional members of the various drafts at any time, prefer- ence shall be given to the local Union involved. The local Union shall have 48 hours in order to ' The Union also represents the employees of a quarry, maintenance employees at a shopping center, and several groups of municipal employ- ees, none of whom are involved in this case 8 The executive board members are the business manager, the presi- dent, vice president, secretary-treasurer, recording secretary, and two members-at-large The business manager is the only full-time paid officer who is named by the Local Union' s constitution as a member of the exec- utive board, but other board members may also be paid, full-time field representatives 9 This contract also covers relations between the employers involved and the carpenters and Teamsters Unions supply the contractor. When a local Union does not furnish qualified workmen within 48 hours, Satur- day, Sunday and Holidays excluded, the contractor shall be free to obtain workmen from any source. Another agreement between the Union and independ- ent heavy, highway, utility, and railroad contractors has contained similar provisions for this same 1977-1986 period: It is the intention of the parties that this Agreement shall constitute a non-exclusive hiring hall arrange- ment, but the Union shall be given first opportunity before sources to supply on a non-discriminatory basis the Employers' requirements for qualified em- ployees. When the contractor desires to hire employees at anytime, preference will be given to the Union. The Local Union shall have 48 hours in order to supply the contractor. When a local Union does not furnish qualified workmen within 48 hours, Saturday, Sunday and Holidays excluded, the contractor shall be free to obtain workmen from any source. Another more complicated series of contracts negotiat- ed between the Laborers International Union and a na- tional pipeline contractors association, but controlling re- lations between local unions and pipeline contractors working within a local's geographical territory, read in pertinent part as follows: II. (B) The Employer and representatives of the International Union, Local Union or Local Unions involved shall hold a pre job conference so that the start and continuation of the work may progress without interruption, and the Union representatives at such conference shall be authorized by the Union to represent Union for the entire area covered by the job. It shall be the purpose of the pre job con- ference to notify the Union of the tentative number of warehouses to be used and the location of each, to agree upon such matters as the length of the work week, the approximate number of men to be employed, including the number of key men, the method of referral, the check-off of Union initiation fees, dues or agency shop fees, the applicable wage rates in accordance with the contract, and any other matters, not including interpretation of the clauses of this agreement, it being agreed that inter- pretation of this Agreement should be made be- tween the Pipeline Contractors Association and the Laborers International Union of North America, so that proper application thereof may be made on the jobs. III. Union Recognition, Union Security and Employment (D) Once the original crew has been employed, in conformity with this agreement, Employer shall have the right to keep such crew on all work throughout the territory covered by the particular LABORERS LOCAL 158 (CONTRACTORS OF PENNSYLVANIA) job for which the pre ;lob conference was held, re- gardless of a Local Union jurisdiction. (E) The Employer shall hire directly a limited number of `key men.' `Key men' shall mean those who are regularly and customarily employed by the individual Employer whenever he has work or who have been employed by him sometime during the past six months and who, because of their special knowledge, skill and experience in pipeline con- struction work, are considered necessary by Em- ployer to the efficient performance of the work to be done under this agreement. If requested, the Em- ployer shall furnish the Union the names and social security numbers of all `key men' when employed on the job. All employees other than `key men' shall be hired in accordance with the following provisions: [see art. XII]-. (F) The Employer shall be the sole judge as to the competency of any applicant or employee and shall have the right to reject any applicant for em- ployment and to discharge employees accordingly. If requested, Employer will confirm any verbal re- jections of applicants for employment by letter or telegram to the Local Union involved. (G) Where the International Union notifies the Association that in a given area an exclusive referral system exists, the Employer agrees to use that ex- clusive referral procedure as the initial source for securing qualified applicants, except key men. Quali- fied applicants required by Employer at the start of the job must be referred by a Local within 48 hours of the receipt of Employer's request; those required by Employer after a job has started must be re- ferred by a local referral office within 24 hours of the receipt of Employer's request. If the local refer- ral office fails to comply with this condition, Em- ployer may secure qualified applicants from any other source, in which event, the Employer shall immediately furnish to the Union a list of the names, addresses and social security numbers of the men so employed. (I) Where the Local Union has not established an exclusive referral procedure, the Employer will at the pre-job conference notify the Union as to the number of men who will be needed in addition to the `key' employees. While the Employer may re- cruit from other sources, the Union shall serve as one of the principal sources of supply for qualified applicants (J) The Union may select one of its members who shall be recognized as job steward. If the stew- ard selected by the business agent is objected to by Employer for any valid reason, the business agent shall select another steward to whom Employer has no reasonable objection. The steward shall not be discharged for union activities. The steward shall be allowed a reasonable amount of the time during the working hours to perform the work of the union, but shall not abuse this privilege. A steward may 1105 not be discharged without forty-eight (48) hours previous notice to the Union. Finally, similar contract provisions govern work done in this Union's geographical area by contractors engaged in the installation and construction of distribution pipe- lines under an agreement between the Laborers Interna- tional Union and the Distribution Contractors Associa- tion. 3. The practice and procedure of employee referral There was general agreement in the testimony re- ceived in this hearing concerning the actual operation of the referral system. In situations involving employers other than pipeline or distribution contractors the proce- dures were casual and informal. The 48-hour requirement contained in the agreements between the Union and the Contractors Association of Eastern Pennsylvania and the independent contractors was not observed. Employers signatory to those agreements employed key men, work- ers who accompanied the contractors from job to job on a more or less permanent basis.4 In addition to the key men category of employees, there were people referred to in the record here as "steady freddies." These were men who did not, like the key men, accompany the con- tractors from job to job, but were called when a contrac- tor for whom they had worked before returned to work in the area where they lived. The employment of key men and "steady freddies" naturally reduced the opportunities for others seeking work with contractors working within the jurisdiction of Local 158. There was also some testimony about hiring of friends, relatives, or others outside of the Union's re- ferral process, but there was not enough to permit me to find that there was any appreciable hiring outside the re- ferral system beyond the key men and steady freddies. The number of people hired without referrals was esti- mated at up to 5 to 10 percent by William Trusky, a former field representative for the Union, and 20 to 25 percent by Business Manager Joseph DiGeronimo. I find that the percentage is, as testified by these two witnesses, somewhere between 10 and 20 percent nonreferral em- ployees. s The percentages are in the same range with pipeline and distribution contractors. Under contractual proce- dures applicable to these contractors there is a prejob conference whenever a pipeline or distribution contrac- tor is awarded a contract within Local 158's jurisdiction. The International and the Local Union are represented, along with the contractors, at this conference, and details about the length of the job, the number of laborers needed, key men, any subcontractors, and the selection of the union steward for the job. After these details are worked out, referrals to pipeline and distribution jobs, as well as to other jobs covered by 4 These key men, of course, would be laid off when the contractors had no work, but they enjoyed the expectation that they would be called back by the same employer on a regular basis 5 Testimony by Field Representatives Andrews, Tomasetti, Valvano, and Metzger is, in my opinion, unreliable and I do not credit their esti- mates of the numbers of referral and nonreferral employees 1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the contracts mentioned above , are handled in the same manner. The individual employees must either call, visit, or write the Union's field representative for the area where the individual lives, or wants to work . At least up to September 1983,6 the field representatives wrote down the names of those seeking work on sheets of plain paper. Then, when a call came from a contractor's repre- sentative or from a job steward that a certain number of men were required on a job , the representative would call people from the list in order of their placement thereon. Sometimes there were exceptions, as described by Trusky and DiGeronimo, when an employer required someone with a particular skill, such as a blaster, or a foreman or straw boss; or where an individual was known to be unsuitable for working on heights, or in tunnels. These exceptions were minimal, and there is no evidence that any substantial percentage of employees were encompassed within such categories. Viewing this evidence, then, I conclude that during the period covered by the facts in this case, between 80 and 90 percent of employees who were hired by contrac- tors working in the Union's 29-county jurisdictional area obtained their jobs through referral, and that these refer- rals were handled almost exclusively through the area field representatives.7 Theoretically, at least, referrals were, as described above , handled informally, but on a first-in, first-out basis, with only minor exceptions. Beyond the general agreement on the way the referral system was supposed to work, there was some disagree- ment on the general policy of the Union on referrals and whether, or in what way, that policy was expressed to the field representatives who were responsible for its im- plementation. Trusky, who served as field representative in Williamsport from 1972 to 1975, and in Harrisburg from 1975 to 1979, testified at one point that he under- stood that his responsibility was to find needed or de- sired types of laborers to fit whatever specialty was re- quired on a job. He did say that he followed the contrac- tual provisions in referrals, and that he kept and main- tained orderly records on all requests for work and refer- rals of individuals to work.8 DiGeronimo agreed that there were no formal or writ- ten rules for the referral system, but he did state that he held periodic meetings with his field representatives at which he would brief them about the system. He expect- ed, then, that they would carry out his instructions in this regard. This testimony by DiGeronimo was not cor- roborated by the field representatives . James Andrews could not recall any conversation with DiGeronimo about the referral system. Jerry Tomasetti stated that Di- Geronimo just asked about what the field representatives were doing, but his whole recollection of this was very vague. Rocco Valvano and Edward Metzger were simi- larly vague about the process and any communications 6 From 1977 to September 1983 the parties stipulated that no perma- nent records were maintained by the Union of referrals made in that period 7 Although DiGeronimo testified that since September 1983 he himself had referred almost all the employees referred to pipeline jobs. 8 Unfortunately, as Trusky testified, he had destroyed these records only a short time before the start of this hearing with DiGeronimo concerning their functions as the man- agers of the system. B. The Events of July and August 1979 It is readily apparent that events occurring before 24 April 1981 , a date 6 months prior to the filing of the charge, cannot be found to be unfair labor practices in this proceeding. The General Counsel urges, and I think with considerable justification, that one must look back almost 10 years to understand the factual background of the case and to illuminate the events which did occur on and after 24 April 1981. The story began in 1972 with the appointment by Di- Geronimo of William Trusky, who had been a member of the Local since 1968, to be a field representative. Trusky proceeded to open a branch office in Williams- port, covering the northern section of the Union's 29- county jurisdictional area. In the years following Trusky's appointment in 1972, work opportunities for the Union's members in the Williamsport area grew consid- erably. DiGeronimo estimated that Trusky had been re- sponsible for initiating 400 or so new members in the 1972-1975 period. In 1975 the Union's executive board appointed Trusky to be vice president of the Union and, at the same time, he was asked by DiGeronimo to move down to Harrisburg as field representative and to assist in organizing employees in the Harrisburg area.9 Some- time after this, Trusky was elected president of the Union by the membership and, unofficially , acted as the assistant to the business manager, DiGeronimo. The rela- tionship between Trusky and DiGeronimo was apparent- ly a close one at that time . The latter even described Trusky as being his replacement as business manager at some time in the future. By the summer of 1979, that close relationship appears to have cooled off. There is not much evidence about the reason for this, although the General Counsel points to Trusky's testimony about a problem between DiGer- onimo and a shop steward named David Radziewicz. Radziewicz had been appointed a steward by DiGeron- imo on Trusky's recommendation. At the Union's month- ly meeting in July 1979, with Trusky, as the Union's president, in the chair, Radziewicz raised questions on the propriety of a retired member continuing to hold a position on the executive board. DiGeronimo assured him that there was no problem , but Radziewicz persisted to the point where DiGeronimo told Trusky that he was embarrassed.' ° The meeting became, in Trusky's word, "chaotic" and after the meeting was over DiGeronimo told Trusky that he was embarrassed by this and that Trusky should "get rid of Radziewicz as a steward. Trusky refused, and there the matter rested. Trusky suspected that this was not the end of the affair, and that his job as field representative might well be in jeopardy. I t Accordingly, he asked people he con- 9 Trusky was succeeded as field representative in Williamsport by one Kevin McGinnis. 10 Subsequently, DiGerommo was reprimanded by the International Union over this issue because its constitution does require that a retired member can not continue to serve on the executive board. 11 The field representative job was a paid position . The union presi- dency carried only nominal compensation. LABORERS LOCAL 158 (CONTRACTORS OF PENNSYLVANIA) sidered his friends and supporters to attend the next reg- ularly scheduled union meeting in August. Trusky's suspicions were well-founded, because at the August executive board meeting, held 2 to 4 hours before the membership meeting, it was voted to termi- nate Trusky and Kevin McGinnis 12 as field representa- tives because of "dereliction of duties and incompeten- cy. The membership meeting which followed this was again presided over by Trusky. Because of Trusky's re- quests, an unusually large turnout of members was present, 200 to 250 as opposed to a normal attendance of 50 or so. Trusky testified that the meeting transacted its routine business until the executive board report, includ- ing notice of the firing of Trusky and McGinnis, was presented for acceptance by the membership. At that point the meeting erupted into chaos, with people yelling and screaming at each other and at the Union's officers. It was impossible apparently to determine whether the report had been acted upon or not , so at DiGeronimo's suggestion a divided house vote was called for. In this kind of vote, the members divided, those voting in favor of the executive board report, went to one side of the meeting hall, and those opposed to the other. There were some differences of opinion by the witnesses, but it is clear that substantial majority was on the side opposed to acceptance of the executive board report, and the firing of Trusky and McGinnis. In this I credit the testi- mony of Trusky, Frank Rehm, and Donald Stamets over that of DiGeronimo. Frank Rehm testified that as he stood on the side of the hall with the opposition group, DiGeronimo said to him "always faithful, top rank, always faithful." Rehm was an ex-Marine, as was DiGeronimo, and Rehm took this expression by DiGeronimo as meaning that Rehm had betrayed DiGeronimo. Garland Walters testified that while the split-house vote was going on, he was told by Secretary-Treasurer Tomasetti and by a steward named Vince Soricelli that he was on the wrong side of the room, and that Ser- geant-at-Arms Ed Metzger asked him where he was going. The meeting continued in a noisy and uproarious manner, finally adjourning after efforts were made to complete its business. DiGeronimo testified that he feared for his own safety and that of others present there. On the way out of the hall, DiGeronimo encoun- tered Donald Stamets and told him that he was on the wrong side of the hall.13 DiGeronimo, admitting that he had said this, added that he was joking, but, as the Gen- eral Counsel aptly points out, it is unlikely that one who fears for himself and others in a hostile atmosphere is 12 There was no explanation of this vote by any witnesses and no fur- ther mention of McGinnis, or why he was included in the action taken against Trusky These gaps in the testimony indicate to me that the rea- sons for the discharges of Trusky and McGinnis were more complicated than just the incident at the July membership meeting , but it is not neces- sary for me to make any ruling or finding on the motive for the dis- charges It is not the discharges, but what happened afterward, that re- lates to the issues in this case 13 This statement by Stamets was corroborated by Trusky 1107 going to be making jokes about the very subject which gave rise to the hostility and chaos. Both Rehm and Stamets were, within a few weeks, re- moved by DiGeronimo as stewards on their respective jobs.14 Rehm testified that he was asked to attend a meeting of stewards in the Williamsport area on 27 August 1979 called by DiGeronimo. At this meeting Rehm raised questions about the firing of Trusky and McGinnis. DiGeronimo became angry and began yelling. Rehm walked out of the meeting. The next day DiGer- onimo showed up at the job where Rehm was the stew- ard and told him he was being taken off as steward be- cause he was "incompetent." When Rehm asked where he was incompetent, DiGeronimo replied in effect, that if Rehm did not play ball on DiGeronimo's team, he did not play at all. Stamets was the steward on a job with Worthy Broth- ers. He was told by Worthy's general superintendent, Buck McIntyre, that he was being laid off. Stamets asked why, pointing out that he was the steward, and McIn- tyre replied that it was "Union politics" and suggested that if Stamets could "make everything okay with Di- Gerommo," that he could keep working." s The General Counsel has established through credible evidence that DiGeronimo and other officers of the Union, Soricelli, Metzger, and Tomasetti, were upset and annoyed by the fact that some members joined the pro- Trusky group at the split-house vote. 16 I credit the further testimony of Rehm and Stamets that they were removed as stewards in the immediate aftermath of the meeting at which DiGeronimo and others had commented adversely on their actions. All this certainly furnishes grounds for me to find that Di- Geronimo resented the negative voters at the August meeting, and I find that his resentment led to his removal of Stamets and Rehm as stewards, even as he previously, and undeniedly, ordered Trusky to get rid of David Rad- ziewicz as a steward because Radziewicz had raised questions about the propriety of executive board actions. C. Continuing Unrest at Union Meetings It is not clear whether the complaints by members and serious questioning of the leadership of the Union, par- ticularly the acts of Business Manager DiGeronimo, began after the firing of Trusky or merely continued after that time. At one point DiGeronimo was quoted by Frank Rehm as having been concerned about "trouble going on in the Union," and who was causing it some- time in mid-July 1979. DiGeronimo, when testifying him- self, stated that the hostile and irritating questioning by members of himself and his administration of the affairs of the Union did not begin until after the August mem- bership meeting. Whatever or whenever its origins Di- 14 Under the local union uniform constitution and bylaws, the business manager has the sole and exclusive power over the appointment and re- tention of stewards 15 As it turned out, Stamets went to see DiGeronimo and then went back to work, but not as steward This testimony concerning what McIn- tyre said was elicited on cross-examination and was not objected to by any party 16 In addition, as noted, Rehm had a further confrontation with Di- Geronimo in Williamsport a few days later 1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Geronimo was convinced that the questions were an or- chestrated campaign designed to embarrass him and other officers of the Local. Trusky was still the Union's president even after he had been stripped of his other union posts, and presided over the membership meetings. According to DiGeronimo, Trusky could not, or would not, control the meetings, thereby contributing to the tumult and confusion.17 In response to my questions, Di- Geronimo insisted that the questioning in 1979 and 1980 was not the normal kind of thing encountered at meet- ings over the years. He insisted that there are "legitimate and illegitimate ways to ask questions" and "when you get the same questions month after month after month after month, it is done for only one purpose, and that is to irritate the officers of the local." DiGeronimo's irrita- tion and resentment of this questioning was evident in his demeanor as he testified at this hearing, 5 years after the events. The questioning, or heckling, concerned five different areas, the Local Union's finances and expenses; the pur- chase of a plaque for a retiring union officer; the pur- chase of a $10,000 state of Israel bond; the admission of new members at times when many old members were without work; and the possibility of establishing a "bank" of hours to enhance employees' eligibility for health coverage. George Miller was the member who most often raised questions about the Union's finances, about new mem- bers, and about the Israel bond. In the former case, the inquiries by Miller and others led to an investigation of the Local Union's finances by the International Union, and the employment of a firm of accountants. The Union was criticized and its practices deplored, but I cannot find in the record any evidence of a final resolution of these fiscal problems, and the whole thing sort of died out with the issuance of a report from the accountants in the fall of 1980. Miller also raised the Israel bond issue, basing his ques- tions on two grounds; first DiGeronimo's constant urging of the members to "buy American"; and second the low rate of interest on the Israel bond, 5.5 percent, at a time (in 1979) when inflation in the United States was running about 13 percent.18 DiGeronimo's response to Miller's persistent questioning on this subject was to become angry and to inquire whether Miller was "anti- Jewish." In regard to the initiation of new members at a time when many older members were out of work, Miller raised the question at union meetings with DiGeronimo and asked for the names and number of new members. The latter refused, saying that members had no right to this information; that he was not going to give the infor- mation; and that he would not give it unless he was or- dered to do so by the International Union. Miller re- sponded to this by initiating a correspondence with the International which eventually resulted in directives by that body to the Local Union to allow members access to information on new members. 17 Trusky readily admitted that he had no control over the meetings 18 Labor Relations Yearbook, 1979, Bureau of National Affairs, Wash- ington, D C, p 490 The questions raised about the plaque, bought by the Union for retiring Secretary-Treasurer Nicholas Sori- celli, would seem farcical, if the whole thing were not so serious. The principal questioner in this part of the case was Robert M. Fisher. He testified that in the beginning he began asking questions about Soricelli's plaque which cost $700. He went around to various trophy shops and found that they had never heard of a plaque costing $700. The questioning went on persistently at union meetings, until DiGeronimo, in exasperation, finally ad- mitted that the $700 was not only for a plaque, but also a pool table, then asked if the leadership was not "entitled to make a mistake." Gerald Rockwell, another member who raised questions about the plaque, was ruled out of order by DiGeronimo. There was considerable discussion about an "hours bank." In 1979 and 1980, the health and welfare rules re- quired that beneficiaries had to work a minimum of 450 hours in a 6-month period in order to qualify for bene- fits. But if one worked more than the required 450 hours, he received no additional credit for those additional hours and could not "bank" those hours to be used later in a lean period when the individual worked less than the required number of hours. This was particularly im- portant in the feast-or-famine employment situation which existed, and presumably still does exist, in the in- dustry. An employee might work 10-hour days and 6- day weeks for 6 months, then be laid off for another 6 months. In the latter part of 1979, this issue was raised by Garland Walters. DiGeronimo replied that the matter had been discussed by the executive board and it was possible. Walters persisted, asking what happened to the money paid in to an employee's account over the mini- mum hours. DiGeronimo told him he was out of order and to sit down. The matter, according to Trusky, was brought up by other members as well on several occa- sions between 1979 and 1980. DiGeronimo recalled the issue coming up, but denied he was irritated by the ques- tioning. Indeed, he said that in discussions with the trust- ees of the Fund, they lowered the number of eligibility hours from 450 to 300, but the trustees never agreed to an hour bank. These facts show even more clearly than the Trusky discharge the tendency on the part of DiGeronimo to resent any challenges to or questions on his stewardship. They serve likewise as a bridge, a transition between the Trusky incident in 1979, a time far beyond our statute of limitations, and the 1981 election and its consequences, matters which are within the statute. DiGeronimo's own testimony makes it clear that his understanding of the questions and criticisms was that they were intended to keep the Union stirred up until the 1981 election should take place. D. The 1981 Election William Trusky began making plans to run for business manager after he was fired as field representative in August 1979. At first he did not think he could win, but in discussions with other unnamed members, who en- couraged him, he decided to try for it. Because he had talked about it with others he did not doubt that DiGer- LABORERS LOCAL 158 (CONTRACTORS OF PENNSYLVANIA) onimo was aware of his thinking. DiGeronimo, for his own part, knew that something was up as the cauldron of discontent continued to simmer at union meetings after August 1979. There is no evidence, however, of Trusky's campaign activities between August 1979 and early 1981 when he began putting a state of candidates together for all the union offices to be voted on at the election in May. In any event, beginning in January 1981 and culminating in May, a group of candidates was selected to run against the incumbent union officers. These were: president, Dave Radziewicz; vice president, Don Stamets; record- ing secretary, Ken Wiest; secretary-treasurer, Kevin McGinnis; business manager, Bill Trusky; sergeant-at- arms, Bob Fisher; auditor, Garland Walters, Elwood Laudenslauger, and Bob Bird; executive board, Frank Rehm and Lou Oswald; District Council, Bill Rad- ziewicz, Kirsten Moe, Glenn Bish, and Robert Jones. Of these individuals, Trusky, Bird, and the two Rad- ziewiczes, Dave and Bill, had filed charges in this matter, but these charges had either been withdrawn or dismissed . Of the others, Stamets, Wiest, Fisher, Walters, and Rehm are named discriminatees in this complaint. Two of the remaining named discriminatees, Rockwell and Rockwell III, testified that they were in favor of this slate of candidates and that they had campaigned for its election. Miller did not run for office, and there is no tes- timony that he campaigned for the dissident slate, but he did say that he had supported Trusky at the split-house vote in August 1979, he had received jobs from Trusky in the 1976-1979 period, and he was one of the most per- sistent questioners of the union leadership from 1979 to 1981. It is no wonder then that in a conversation on 8 April, shortly before the election, DiGeronimo told Miller that he thought Miller was running for union office. DiGeronimo went on to say that if the incum- bents lost, they would be out of work, and if they won, they would not look too favorably on those who ran against them as far as jobs were concerned. Kelmelis, the other named discriminatee, did not appear at the hearing to testify. There is no indication in the record of where he stood on the issues in the elec- tion. So the ticket was formed and a campaign was begun. Literature was prepared and handed out, people were contacted, and interested members served as poll watch- ers. The election was held over the Memorial Day week- end in 1981 in two locations, Harrisburg and Wilkes- Barre. No one on the dissident slate came even close to winning, according to Trusky, and no objections were filed by the losers with the International Union or with the United States Department of Labor. During the election campaign and in its aftermath sev- eral events occurred which, having taken place within the 6-month period before the filing of the charge here, are alleged as unfair labor practices by the General Counsel. Robert M. Fisher had been a member of the Union since March or April 1976. As described above, he had been persistent and searching in his questions about the Soricelli plaque. In the spring of 1981 he ran on the dissi- 1109 dent or, as it was referred to at the hearing, the Trusky ticket, as a candidate for sergeant-at-arms. Fisher had been accustomed to notifying Field Repre- sentative Ed Metzger when he was out of work and Metzger would refer him to jobs. Fisher testified that he had a "good to excellent" relationship with Metzger, as field representative, and also as his foreman and steward on jobs. Then, in late April or early May, according to Fisher, Metzger told him that if DiGeronimo did not want to put him to work, there was nothing that Fisher could do about it. Fisher was not, in fact, referred to work, according to the Health and Welfare and Pension Fund, after November 1980. Kenneth Lee Wiest became a member of Local 158 in December 1974. He had supported Trusky in the split- house vote, and he was a candidate for recording secre- tary in the 1981 election. He was accustomed to calling the hall and asking for work, speaking generally to An- drews or Metzger. He testified here concerning a con- versation he had with Metzger in June 1981, after the election. Wiest asked if there was any work available and Metzger replied by asking Wiest why he should "give you a job when you tried to steal mine." Wiest said that he had run because he had been getting no work and this might be a way for him to get more work. Metzger told Wiest at this point that August might be a good month, but he did not call Wiest in August or at any other time. The health and welfare and pension records show that Wiest was not referred to work after October 1980. Garland Walters had been a member of the Union since 1972. His activities at the time of Trusky's termina- tion have been recounted above. In 1981 he ran for the post of auditor. On the day of the election in Wilkes- Barre, Walters met and shook hands with Field Repre- sentative Rocco Valvano. Walters, who impressed me as a friendly, outgoing person, said to Valvano "May the best man win." Valvano replied "and the best men will work." 19 Valvano denied that he had made such a state- ment, but I do not credit his denial, based on his poor memory and his demeanor, which did not impress me as frank or candid. After Walters had voted and was leaving the union hall, George Miller heard Field Representative Andrews say, with reference to Walters, "We'll starve his ass." According to the records in evidence here, Walters was not referred to work after July 1980. Frank A. Rehm Jr. was a member since May or June 1970. He had supported Trusky and had placed his name before the membership as a candidate for the executive board. He testified that on the day of the election outside the polling place at Wilkes-Barre, just after the votes were counted, Jerry Tomasetti, a field representative, came up to him and they shook hands. Rehm said that he guessed this meant that the losers would never work again. According to Rehm, Tomasetti first smiled and said, "Could be, could be." Tomasetti denied this and '9 Walters did not quote Valvano as saying this in his direct examina- tion, but he did so on cross-examination I find that Valvano said "and the best man will work" in this conversation as testified by Walters on cross-examination Walters' reply to the General Counsel on direct exam- ination I find to have been inadvertent and in error 1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said that when he and Rehm met that day after the elec- tion he said "no hard feelings," but that Rehm ripped off a string of obscenities and rode off on his motorcycle. I found Rehm's story more credible based on my observa- tions of his demeanor. Tomasetti, like all the field repre- sentatives who testified, had a poor memory and did not impress me as a credible witness. Rehm was referred to work through the end of 1981, but not thereafter. All this evidence constrains me to find, as alleged by the General Counsel, that the Union has violated Section 8(b)(1)(A) of the Act by threatening and coercing the employees who exercised their rights under Section 7 of the Act by either running for union office, or supporting those who did run. Teamsters Local 923 (Yellow Cab Co.), 172 NLRB 2137, 2138 (1968). Specifically, I find that Metzger's statement to Robert Fisher in late April or May that Fisher could not be re- ferred because of DiGeronimo's wishes that he not be put to work is a violation of Section 8(b)(1)(A). I find that Metzger's statement to Wiest in June that he would not give Wiest a job because Wiest had tried to "steal" his job is a violation of Section 8(b)(l)(A). I find that Di- Geronimo's statement to George Miller in April that the union officers would not look favorably on those who ran against the incumbents as far as jobs were concerned was also a violation of Section 8(b)(1)(A). I find that Valvano's statement on election day in response to Wal- ters' remark about the "best man" winning, to the effect that the "best men will work" was a violation of Section 8(b)(1)(A). I find, finally, that the remarks about Walters made by Andrew in the presence of George Miller on the day of the election to the effect that "they" would "starve" Walters was a violation of Section 8(b)(1)(A) of the Act. Plumbers Local 533 (Plumbing Contractors), 271 NLRB 1361 at 1371 (1984). E. The Stamets Incidents Donald L. Stamets had been a member of the Union since 1963. In the years from 1972 to 1975 he had been a field representative in Harrisburg.20 He left that position and returned to work in his specialty, pipeline construc- tion. As I have noted above, Stamets was removed as steward on a Worthy Brothers job in 1979, after DiGer- onimo had informed him at the August union meeting that he had been on the wrong side of the hall that night. Stamets continued to work, however, and the fund's records show that he was referred out regularly until early in 1980. From that point on his referrals were mini- mal. During the election campaign of 1981 Stamets was a candidate for vice president of the Union. In the summer of 1981 Stamets had procured a job on his own, working for Worthy Brothers in Jessup, Mary- land, south of Baltimore. In August of that year, only a couple of weeks before Worthy Brothers was due to start a new job in the Harrisburg area, Stamets was laid off by his foreman, Everett Dimmick. Dimmick testified that he laid off Stamets at the order of the assistant su- perintendent on the job, Swanson, and Swanson's superi- 20 DiGeronimo claimed in his testimony that he dismissed Stamets as field representative because he failed to keep a promise to move into the Harrisburg area or, Buck McIntyre. Dimmick testified that Stamets was one of the outstanding laborers he ever had work for him, and he protested strongly both to Swanson and McIntyre about this decision. The conversations between Dimmick, who did testify here, and McIntyre, who did not, were objected to by the Respondent's counsel as being hearsay and therefore inadmissible. I allowed the questions and answers to be entered in the record, but asked the parties to brief the issue for my guidance. It is my opinion that the conversations between Dim- mick and McIntyre are admissible under the exception to the hearsay rule delineated in Rule 803(3) of the Federal Rules of Evidence, only insofar as they demonstrate the current state of mind of McIntyre, and insofar as McIn- tyre conveyed this state of mind to Dimmick as furnish- ing the basis for terminating Stamets. I cannot, however, consider those parts of the conversation dealing with other conversations, between McIntyre and DiGeron- imo, tending to show that McIntyre's state of mind was caused by union pressure. Steelcon, Inc., 266 NLRB 881 fn. 1 (1983). Nonetheless, I can and do infer, from those parts of the conversations which I have found are permissible hearsay, that McIntyre instructed Dimmick to lay off Stamets because if they did not, they would "have prob- lems when we move up to Harrisburg." This inference is drawn from the following facts and consideration: Di- Geronimo's confrontation with Stamets at the union hall the night Trusky was fired; the subsequent replacement of Stamets as steward by DiGeronimo; the candidacy of Stamets in the 1981 election; the comments by several field representatives showing hostility toward the Trusky slate in the election; and the fact that it is beyond the bounds of logic that Worthy Brothers would terminate an extremely valuable employee 2 weeks or so before the termination of a job, unless it was in the face of a union threat to cause trouble to the company in a Harrisburg job starting soon after the Maryland job finished. Thus, I find that it was DiGeronimo who threatened to cause that trouble, 2 i and that threat caused the layoff of Sta- mets in Maryland and a refusal to employ him on the later Harrisburg job in violation of Section 8(b)(2) of the Act. See, e.g., Operating Engineers Local 675 (Multi-Craft Installation), 271 NLRB 1227 (1984); Retail Clerks Local 1222 (Lucky Markets), 217 NLRB 271 (1975). F. Discrimination in Referrals The facts here have established that the Union, through its officers and agents, disliked and resented its members who exercised their Section 7 rights in the Trusky situation and at meetings in the 1979-1981 period. Further, the record shows, and I have found, that the Union violated Section 8(b)(1)(A) by threatening and coercing its members who either ran for office or supported dissident candidates in the 1981 election. The Union also violated Section 8(b)(2) in causing Donald 2i I do not credit DiGeronimo's denial that he threatened Worthy Brothers that he would cause trouble for it if it did not terminate Sta- mets LABORERS LOCAL 158 (CONTRACTORS OF PEIiNSYLVANIA) Stamets to be laid off from a job in Jessup, Maryland, in 1981. The question then arises whether the Union discrimi- nated against the nine named members, and an indefinite number of others, in the operation of its referral system. The underlying facts here show that somewhere be- tween 80 and 90 percent of the work within the jurisdic- tion of the Local is handled through the referral system. All the discriminatees who testified stated that, at least during the period from the spring of 1981, they had reg- ularly called or visited the Union's offices seeking work. That these later efforts were largely in vain is shown by the Union's records in evidence showing the hours worked by each of tile discriminatees. This is graphically shown by Table I, appended to this decision, which is taken directly from figures developed by the General Counsel and lists substantial declines in hours worked by the named discriminatees in the years after 1979. Table II, which I have prepared based on the records of the Union's Health and Welfare and Pension Funds office, shows what I find to be the average number of hours worked in each year from 1978 to 1983 of Local 158 members. My method of computation, in case anyone wishes to question my results, is as follows: I have taken the total amounts received in each calendar year by the funds, then divided that by the amounts per hour contributed to the funds, and come up with a total number of hours. I have then deducted hours worked by employees employed in enterprises, such as the quarry, shopping center maintenance, and municipal agencies, where there was fixed employment not dependent on re- ferrals of members, arriving, then, at an adjusted hourly figure. This is followed by a listing of the average number of members. The General Counsel further re- fined this last figure by computing out a number of mem- bers who, by her calculations, worked for nonreferral employers. I have not followed this refinement to the numbers, first because I think one has to make too many presumptions to develop a figure and, second, because we are not required here to achieve stopwatch accuracy, but rather to establish a benchmark figure to use in com- parison with the figure in Table I. Thus, I concluded this Table II, also appended to this decision, by dividing the adjusted hours by the average number of employees in each year to arrive at an average number of hours per member. Using these tables to make a comparison between the actual hours worked by the nine named discriminatees and the average hours worked by the members of Local 158, it is evident that there was something here more than just random or coincidental job referrals. Nor can these considerable differences be explained by the prac- tices of hiring key men, "steady freddies," friends, rela- tions, and so on. I have found, based on the testimony of Trusky and DiGeronimo, that all these categories make up, at most, about 20 percent of the employment of Local 158 members. In any event, whatever percentage of employment may be attributed to these categories, the effect would be the same on all employees, and would not explain the disparity between the hours worked by the discriminatees and hours which I have computed as the average. Similarly, neither the fact that there was a nationwide recession in the years 1981-1983, severely affecting Pennsylvania, nor the fact that a number of dam and highway projects finished up in the late seventies , could, in my opinion, shake the validity of these statistics, or ex- plain why these individuals ended up so differently from the average. The only logical explanation for the disparity, in view of the demonstrated hostility of DiGeronimo and other union agents toward those who voted with Trusky in August 1979; and toward those who were vocal in their questioning and criticizing of the union leadership in the 1979-1981 period; the violations of Section 8(b)(1)(A), as I have found surrounding the May 1981 election ; and the violation of Section 8(a)(2) which I have found in Sta- mets' discharge in 1981, is that the disparity was caused by the actions, or inactions, of DiGeronimo and his ap- pointees, the field representatives, Andrews, Metzger, Tomasetti, and Valvano. The Board has held that opposition 'to the election of an incumbent union official is protected activity within the meaning of Section 7 of the Act; Teamsters Local 923, supra.22 Refusal by a union to refer individuals from a nonexclusive hiring hall based on discriminatory rea- sons has been held to violate the Act; Laborers Local 135 (Bechtel Corp.), 271 NLRB 777 (1984). Further, the Board has ruled that when discrimination is directed against political opponents, the General Counsel does not have to show ever "that jobs were available at the time of request for referral," Plumbers Local 38 (Hancock- . Northwest, J. V.), 247 NLRB 1250 (1980). In this case, as in Laborers Local 135, supra, the record shows that the discrimination against the nine new indi- viduals is "widespread and pervasive." The discrimina- tion here went on literally for years. These nine individ- uals were passed over hundreds of times between the be- ginning of the 10(b) period in this case in March 1981 to the time of the hearing. Respondent retained no records for its hiring hall and referral practices until at least Sep- tember 1983, and none were submitted for any period at all. In these circumstances the General Counsel need not show all the specific examples of nonreferral . Indeed, all the referrals made while these individuals were passed over may be considered unlawful . Precise computations of the amounts due each of these individuals may be left to the compliance stage of this proceeding Laborers Local 136, supra.23 I therefore find that the Respondent Union violated Section 8(b)(1)(A) and (2) by its discriminatory refusal to refer the nine named discriminatees.84 22 Meyers Industries, 268 NLRB 493 (1984), does not affect this case in which the activity involved a number of employees. 25 I note also that some of the individuals indicated in their testimony that they discontinued requesting work at various times from the end of 1981 to 1983. As they claimed (see testimony of Rehm, Walters, Fisher, Wiest, Miller, and the Rockwells) they felt it was futile to continue. I agree, and so find; Frank Mascali Construction, 251 NLRB 219 (1980). The effect of this may also be considered at the compliance stage herein. 24 Although Leonard Kelmelis did not appear , his opposition to the policies of the Local Union's leadership is amply documented in the record. 1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Finally, I note that in cases involving the kind of widespread and pervasive discrimination, which existed here, the Board has found that individuals not named in the complaint, but who may have suffered similar dis- criminatory treatment, may be entitled to make-whole orders; Iron Workers Local 480, 235 NLRB 1511 (1978); Boilermakers Local 154 (Western Pennsylvania Service Contractors), 253 NLRB 747 (1980). 1 find that discrimi- nation may well have occurred with respect to individ- uals not named in the complaint, and I find that if and when such persons come forward in the compliance stage of this proceeding, they should be made whole for discrimination against them. THE REMEDY Having found that the Respondent Union has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain af- firmative action designed to effectuate the policies of the Act. Having found that the Respondent violated Section 8(b)(1)(A) and 8(b)(2) by causing Worthy Brothers to discharge Donald L. Stamets, I shall recommend that Respondent notify Worthy Brothers, in writing, with copies to Stamets, that it has no objection to his hiring or employment, and affirmatively request Worthy Broth- ers to hire Stamets for the employment he would have had were it not for Respondent's unlawful conduct, or for substantially equivalent employment. In addition, Re- spondent must make Stamets whole for any loss of earn- ings or other benefits he may have suffered by reason of the discrimination against him from the date of Respond- ent's unlawful conduct with interest thereon computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1977), and Florida Steel Corp., 231 NLRB 651 (1977). Having further found that Respondent violated Sec- tion 8(b)(1)(A) and (2) by discriminatorily failing and re- fusing to refer to available jobs through its hiring hall and referral system, named discriminatees Donald Sta- mets, Frank Rehm, Garland Walters, Robert Fisher, Kenneth Wiest, George Miller, Gerald Rockwell, Gerald Rockwell III, and Leonard Kelmelis, I shall recommend that the Respondent must make each discriminatee whole by payment to him of a sum of money equal to that he normally would have earned as wages from the date of the discrimination , beginning 24 March 1981, until the time Respondent ceases its unlawful conduct by properly referring him to employment, with interest thereon com- puted in accordance with the formula given above. Having further found that Respondent has violated Section 8(b)(1)(A) and (2) with respect to others un- named and unknown because of its widespread and per- vasive discrimination against political opponents and crit- ics, I shall recommend that Respondent make whole all such individuals for discrimination suffered by them by Respondent commencing 24 March 1981, with interest to be computed according to the same formula. Additionally, I shall recommend that Respondent keep and retain for a period of 2 years permanent written records of its hiring and referral hall operations and make those available to the Regional Director on re- quest. I also recommend that Respondent shall submit to the Regional Director four quarterly reports concerning the employment of all the named discriminatees. Further, I shall recommend that Respondent place its hiring and referral registers on tables or ledges in its offices in Har- risburg, Wilkes-Barre, Williamsport, and Bethlehem for easy access and at Bethlehem inspection by the appli- cants on completion of each day's entries in the register for a period of 2 years. Finally, in view of the widespread and pervasive nature of the violations here, I shall recommend that a broad cease-and-desist order issue herein. Hickmott Foods, 242 NLRB 1357 (1979). CONCLUSIONS OF LAW 1. Worthy Brothers Pipeline Corp . and Contractors Association of Eastern Pennsylvania are employers within the meaning of Section 2(6) and (7) of the Act. 2. Heavy and Highway Construction Workers' Local Union No. 158 is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By threatening and coercing its members for their political activity opposed to the Union's officers, the Re- spondent has violated Section 8(b)(1)(A) of the Act. 4. By threatening and coercing Worthy Brothers into discharging Donald L. Stamets, Respondent has violated Section 8(b)(1)(A) and (2) of the Act. 5. By failing and refusing to refer nine named individ- uals and other unnamed individuals , Respondent has vio- lated Section 8(b)(1)(A) and (2) of the Act. [Recommended Order omitted from publication.] APPENDIX A Table I.Annual Hours of the Named Discriminateesfor 1976-1983 Derived From Figures Prepared by the General Counsel Based on Hours Listed on the Union 's Health and Welfare and Pension Fund Records NAME 1976 1977 1978 1979 1980 1981 1982 1983 R. Fisher ............................................................................. 892 1788 1217 1182 1196 0 0 0 L. Kelmelis ....................................................... .......... 611 643 1336 870 0 0 0 0 G. Miller, Jr ................................... ..... .. ......... 1047 1343 477 1131 389 586 224 355 2110 1792 1805 2385 204 502 0 0 0. Rockwell ................................................................ . . 528 623 895 112 0 77 0 0 G. Rockwell III ................................................ ............. . - - - 260 0 0 0 0 568 2214 1315 1650 86 0 164 8 LABORERS LOCAL 158 (CONTRACTORS OF PENNSYLVANIA) 1113 APPENDIX A-Continued NAME 1976 1977 1978 1979 1980 1981 1982 1983 G. Walters ..................................................................................................... 1989 2253 2339 1807 321 0 0 0 K. Wiest ................................................................................................... 830 848 394 676 451 0 0 0 Table II.-Average Hours Worked Per Member of Local 158 for 1976-1983 Year Amt. Recd. H& W&P Hours Deductions Adjusted Avg. No. of Members Avg. Hrs. per Member 1976 ....................................................................................... $633,359 2,111,197 111,671 1,991,526 * • 1977 ...................................................................................... 660,661 2,202,048 117,786 2,084,252 s • 1978 ...................................................................................... 804,555 2,216,082 113,789 2,302,293 2028 1135 1979 ................................................................................... 832,935 2,174,767 133,876 2,040,891 1979 1031 1980 ................................................................................... 903,931 1,692,755 109,952 1,582,803 1891 837 1981 ..................................................................................... 947,906 1,421,627 105,627 1,315,522 1718 765 1982 ...................................................................................... 911 ,630 1,188,566 104,665 1,083,901 1415 766 1983 .................................................................................. * No figures in evidence for 1976 or 1977. 788,063 875,626 101,287 774,339 1361 568