Carpenters Local 720 (National Maintenance)

CARPENTERS LOCAL 720 (NATIONAL MAINTENANCE) Millwright and Machinery Erectors Local Union 7,10, United Brotherhood of Carpenters and Joiners of America (National Maintenance Cor- poration and Tero-Technology) and Samie W. Ousley. Case 15-CB-3197 13 April 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS STEPHENS AND CRACRAFT On 29 December 1986 Administrative Law Judge Howard I. Grossman issued the attached de- cision. The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed a brief in support of the judge's decision. 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. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Millwright and Machinery Erectors, Local Union 720, United Brotherhood of Carpenters and Joiners of America, Baton Rouge, Louisiana, its officers, agents, and representatives, shall take the action set forth in the Order. 1 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. Charlotte N. White, Esq., for the General Counsel. Any L. Gardner, Jr., -Esq. (Gardner, Robein & Healey), Metairie, Louisiana, for the Respondent. Mr. Satnie W. Ousley, appearing pro se. DECISION STATEMENT OF THE CASE HowARD I. GROSSMAN, Administrative Law Judge. Samie W. Ousley (Ousley) filed a charge against Mill- wright and Machinery Erectors, Local Union 720, United Brotherhood of Carpenters and Joiners of Amer- ica (Respondent or the Union) on 23 April 1986 and withdrew it on 22 May 1986.1 Ousley filed the instant 1 A. Exhs. 8 and 9. All dates are in 1986 unless otherwise specified. 283 NLRB No. 93 617 charge on 27 May,,and complaint issued on 2 July. As amended on 26 September and as further amended at the hearing, it alleges that the Union failed and refused to refer Ousley for employment with National Maintenance Corporation (National Maintenance) on 15 and 16 March, and with Tero-Technology on 13 May, for arbi- trary, invidious, discriminatory, and/or irrelevant consid- erations. Further, the complaint alleges, the Union by its business agent Joe Wase Bennett (Bennett) on 8 May during a union meeting solicited union members to inflict bodily injury on Ousley because the latter had filed an unfair labor practice charge against the Union, and to persuade Ousley to withdraw the charge. This conduct, the complaint alleges, is violative of Section 8(b)(1)(A) and (2) of the National Labor Relations Act (the Act). A hearing was held before me on these matters in Baton, Rouge, Louisiana, on 6 and 20 October. Thereaf- ter, the General Counsel and the Respondent submitted briefs.' On the entire record and on my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT 1. JURISDICTION The complaint and answer, as amended at the hearing, establish that National Maintenance and Tero-Technolo- gy are both Louisiana corporations with offices and places of business in Baton Rouge, Louisiana, that the former is engaged in the industrial contract maintenance business and the latter in the building and construction industry, that during the 12-month representative period preceding issuance of the complaint the corporations in- dividually purchased and received goods and materials valued in excess of $50,000 shipped directly to their Dow Chemical and Borden Chemical jobsites, respec- tively, from points located outside the State of Louisiana. The pleadings further establish, and I find, that National Maintenance and Tero-Technology are, individually, em- ployer's engaged in commerce within , the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The pleadings further establish, and [ find, that the Union is a labor organization within the meaning of Sec- tion 2(5) of the Act.. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Exclusive Hiring Hall The exhibits and pleadings, as amended[ at the hearing, establish, and I find, that the Union, acting on its own behalf and through the Baton Rouge Building and Trade Council, and National Maintenance and Tero-Technolo- gy, each individually, have been parties to and/or abided by the provisions of collective-bargaining agreements pertaining to the Dow and Borden Chemical jobsites, re- spectively, and/or a practice in existence that provides, inter alia, for exclusive referral for emp]loymeni of per- sons in millwright classifications from a hiring hall oper- ated by the Union. 618 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Board has previously ' agreed with findings that describe the operating procedures ' of the hiring hall,2 and that are reaffirmed by evidence in the instant proceeding. In summary; a job applicant's, right to employment is es- tablished by his signing a master out-of-work list and being assigned a master list number, which he - retains until he "is referred ' to - a job that lasts 5 or more days. After such employment,- the applicant is assigned a new - and higher master list number., The Union's referral procedures require that each indi- vidual desiring employment must report "that morning" to the hiring hall and sign a "Day List" showing his or her name and master list or "registration" number.3 However, the exhibits show that persons desiring em- ployment in fact sign a weekly out-of-work list,4 and Business Representative Bennett testified'that a signature on Monday was good through the following Sunday. The master' list or registration numbers shown on the weekly out-of-work list are not in sequential order, and there are gaps between numbers-not all members with master list numbers put their names on the out-of-work list each week. The referral rules require that applicants must be referred for jobs , in sequential order beginning with the lowest master list number.5 However, an em- ployer may request an individual on the master list by name and thus bypass other individuals with lower num- bers.6 When employer orders for employees are called in on weekends or after 10 a.m. on weekdays, the most recent but-of--work list is used to make referrals. When this list is exhausted, the master list is utilized.' The complete procedure is more completely detailed in the record in a former proceeding . According to find- ings adopted by the Board , most millwrights sign the out-of-work .list on Monday, and must be in the hall to be referred on that day. -Union Business Representative Bennett or his staff prepares a separate list that "un- scrambles" the out-of-work list, so that the master list numbers are in sequential order. Millwrights do not have to be in the hall from Tuesday through Friday , because Bennett calls them on the telephone . Carpenters Local 720 (UMC ofLouisiana), supra, 276 NLRB at 63. 2 Carpenters Local 720 (UMC of Louisiana), 276 NLRB 59 (1985), set aside on other grounds and remanded 798 F.2d 781 (5th Cir. 1986); Car- penters Local 720 (Stone & Webster), 274 NLRB` 1506, 1508 (1985). 8 A. Exh. 1, par. 5(a). 4 All signatories on a "Weekly Out-of-Work List" for the week begin- ning 10 March (a Monday) signed only on that day, and every signatory for the week beginning 12 May (a Monday ) signed only on that day (Jt. Exhs. 5 and 6). 5 Jt. Exh. '1, par. 5(c). - 9 Ibid., par. 5(e). The General Counsel sought to cast doubt on the in- tegrity of the referral system by eliciting testimony, from union member Webb. Wax. Thus, Wax testified that Business Representative Bennett re- ferred Wax to a job out-of-turn in October 1985 (G.C.-Exh 2). Wax af- firmed that Bennett-told him to answer any inquiry about this referral by saying that Wax had been "called by name." In fact, this was false, ac- cording to Wax-the, employer's representative did not even know him Bennett agreed that he signed Wax's referral slip, but claimed that he had a letter to prove that Wax had been called by name. Wax appeared to be the more credible witness, and may have been tes- tifying against his own best interest. I credit his testimony. ' Ibid., par 5(f). B. Evidence of Bennett's Animus Against Ousley - As indicated, Bennett was the Union's business repre- sentative. ' He was also the financial secretary and the pleadings establish that he was a union agent. In his ca- pacity as business representative, Bennett was authorized by the union bylaws to, refer applicants for employment.8 The General Counsel elicited evidence for the purpose of showing that Bennett had animus against Ousley. Thus, Ousley testified that he campaigned for an oppo- nent of Bennett's in 1985 -(Tillman Palmer), wore cam- paign stickers, and passed out literature. On the Monday before the election, Bennett looked "straight at" Ousley in the union hall when the latter was wearing a Palmer sticker, according to Ousley. Bennett first denied knowl- edge of whether Ousley ever supported a political oppo- nent of Bennett's and then said that he was "sure" that Ousley had done so. I credit Ousley. Ousley affirmed that the union membership, in mid- February, voted to require Bennett to turn in his credit cards, to leave his car at the union hall at night, and to discharge two secretaries. Ousley was present at this meeting, and voted with the majority. His testimony was partially corroborated by Bennett, who acknowledged that he saw Ousley at the meeting. On the next day, according to Ousley, he stopped at a coffeepot in the union hall and engaged in conversation with one of the- secretaries. Bennett came out of the office and told the secretary that she had no business talking to Ousley because he was one of the "sorriest motherfuckers who voted to get -rid of" the secretary. Ousley was talking to another secretary about a week later and Bennett said the same thing. Bennett testified that he "probably" saw Ousley at the coffeepot the next day, but said that he did not remem- ber the statements attributed to him by Ousley. I credit the latter as to both conversations. Ousley also affirmed that he testified at two previous unfair labor practice hearings involving charges against Bennett and the Union by other union members," and that Bennett saw him on, those occasions. C. The Events of 15 and 16 March 1. Recent political history of the Union-election of Union President Ronald Kinchen The amended complaint alleges unlawful refusal to refer Ousley on both '15 and 16 March. It also alleges that Union President Ronald Kinchen, who assertedly passed over Ousley on 15 March, and Bennett, who al- legedly did so the,next day, were both union agents. The Union admits that Bennett was an agent but denies that conclusion with respect to Kinchen. Accordingly, the Union argues, it was not responsible for any referrals Union President Kinchen may have made. Bennett was elected union president about 1967. He testified that, as president, he referred individuals for em- 8 A. Exh. 10, sec 21(D)(4). 9 Supra, fn. 2. It is unclear whether Ousley is the same person as the "Oursley" mentioned at 274 NLRB at 1510. CARPENTERS LOCAL 720 (NATIONAL MAINTENANCE) ployment "at one time" under what he said was "a dif- ferent referral system." Bennett relinquished the post of president in 1975, and was elected financial secretary and business representa- tive.' ° Jerry Sibley was elected president, and continued in that position until about 1985. Sibley was also an as- sistant business representative, appointed by Bennett, until 1984. During this period, Sibley made referrals from the hiring hall. Kinchen, who had previously been a vice president and had unsuccessfully run for the presidency against Sibley, defeated the latter in the 1985 election. Ousley supported Kinchen during this campaign and, as noted, ,also supported Bennett's opponent for the position of fi- nancial secretary-business representative. As indicated, the Union's bylaws give the business rep- resentative authority to make referrals."' The bylaws also provide that the president shall conduct meetings, preserve order, enforce the bylaws, and have duties listed in section 33 of the International constitution.12 The latter specifies a few additional functions and "such other duties as are required by the office.""S 2. The referrals on 15 March Bennett was out of town on 15 March, a Saturday, and did not designate anybody to make referrals in his ab- sence. Kinchen received,a call on Saturday from Phil Dozier, National Maintenance superintendent for the Dow Chemical jobsite: Dozier told Kinchen that he needed employees immediately-there was an emergen- cy„ and Dozier could not reach Bennett. If the Union could not fill the positions, National Maintenance would fill them from other sources. Kinchen first tried to reach Bennett himself, unsuccess- fully, and then called Dozier back. The latter asked for eight millwrights by name, of which Kinchen could only get one ("Keith Schafer").14 Dozier also asked for Kin- chen, but the latter said he was not, working that day. He did go out the next day. Kinchen did not have an out-of-work list; but did have a membership list with telephone numbers. In addition to Shaffer, Kinchen said that he referred Eddie Hill, Alden "Persac," Doug Harper, and one other person whose name he could not recall. Although Bennett asserted that Gary Palmer was also referred on Saturday, Kinchen testified that Palmer (and Kinchen) reported for work on Sunday. National Maintenance records show that W. W. Harper, M. E. Hill, and A. E. Persick were referred on Saturday, that Shaffer was called by name, and that Palmer and Kinchen were called by name on Sunday.' 5 I accept the National Maintenance records as accurate. 'Harper, Hill, and Persick are the only employees with respect to which the issue of Kinchen's agency status is relevant. Because they and Shaffer' were 'the only mem- 10 The Union's bylaws combine the functions into one position entitled "Financial Secretary-Business Representative" (Jt. Exh. 10, sec. 19). 11 A. Exh. 10, sec. 21(D)(4). 12 Id, sec. 21(C). 18 R. Exh 11, sec. 33. 14 Identified as "D. K. Shaffer" in the National Maintenance records Qt Exh. 4(B)), is A. EA. 4(B). 619 hers referred by Kinchen. Inasmuch as Shaffer was called by name, his referral could not have been a viola- tion of the referral procedure. Kinchen testified that he did not call Ousley, a friend of his, because he got "the four people he needed" before getting to Ousley's name on the membership list. i 6 Kinchen also agreed that there were persons on the out-of-work list who were entitled to referral prior to the individuals sent out by Kinchen. However, Kin- chen did not have, at the hearing, the master list num- bers of those persons-Harper, Hill, and Persick. Al- though Ousley's master list number was 318,17 there is no evidence to show whether Harper's, Hill's, or Per- sick's numbers were higher or lower than Ousley's. Shaffer had a higher number, 396,18 but Shaffer was called by name. As noted above, the referral rules allow an individual called by name to be referred out of turn. I conclude that the evidence is insufficient to establish that Ousley was passed over by the referrals on 15 March. The Union uses referral slips when referring individ- uals.'9 Kinchen credibly testified that he did not have any referral slips with him on Saturday, that those indi- viduals who were referred did not get one "that day," but did receive them later. Bennett denied that he issued referral slips for the individuals referred by Kinchen, and suggested that the latter may have done so. However, because Bennett told Kinchen on Sunday, as appears hereinafter, that Kichen had no authority to make the re- ferrals, it is unlikely that Kinchen thereafter signed the referral slips. The only other possible signatory on the referral slips was Bennett, who signed the only slip in evidence.20 If Bennett did sign the referral slips, that fact would raise the issue of whether the Union, by its agent Bennett, ratified Kinchen's actions regardless of the Tat- ter's agency status. Bennett did not withdraw the Kin- chen referrals and did not immediately inform the mem- bership that Kinchen had acted without authority-such information was not divulged until the next membership meeting. However, because the evidence is insufficient to estab- lish that Ousley was passed over by any of the Kinchen referrals on 15 March, I consider it unnecessary to deter- mine Kinchen's agency status. 3. The referrals on 16 March a. Summary of the evidence National Maintenance Superintendent Dozier called Kinchen again the following morning, Sunday, and said that he needed 16 more referrals. Kinchen agreed to send them out if Dozier could not reach Bennett. Dozier did succeed in reaching Bennett and asked for the referrals. Bennett went to the union hall, obtained the out-of-work list, and sent 10 individuals to the job- 16 As noted, Kinchen also testified that Dozier asked for eight refer- rals. 1 a A. Exhs. 5 and 6. 18 A. Exh. 6. is G.C. Exh. 2, signed by Bennett. 20 G.C. Exh. 2. 620 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD site.21 He also called Kinchen and told him that he, Kin- chen, had no authority to make referrals. Four of the individuals referred by Bennett were called by name.22 Of the remaining six,- three had master list numbers 'higher than Ousley's number of 318.23 Ac- cordingly, Ousley would appear to ' have been passed over by`three of the 16 March referrals. Bennett, however, contended that he reached Ousley's name on the daily (weekly) list and called him at 12:42 p.m. on 16 March. There was no answer, according to Bennett. Ousley, however, testified that he was home on Sunday, but did not receive a call from Bennett. Ousley affirmed- that he was repairing an automobile in his car- port, and that his portable telephone was just a few feet away from him. The - only telephone conversations Ousley had were with Leland Johnson, according to Ousley. He had called Johnson earlier in the day to inquire about work, and Johnson called him back at 1 p.m. to inform him that Bennett had referred Johnson for employment. Leland -Johnson himself testified, and, corroborated Ousley concerning this call. As shown above, Johnson in fact was referred out on 16 March. Johnson testified that Bennett called him -on 16 March, and Bennett testified that he referred Johnson. to the job. Ousley also stated that union member Webb Wax helped him with his auto repairs on Sunday. Wax testi- fied on this issue and corroborated Ousley. He arrived at Ousley's house between 10 and 10:30 a.m., and helped Ousley until about 3 p.m. Wax overheard Ousley's side of the conversation with Johnson about 1 p.m. He af- firmed that this was the only call, and corroborated Ousley on the location of the phone. b. Factual analysis Ousley, an apparently truthful witness, was corrobo- rated by two 'other witnesses who appeared credible. The fact that Johnson was referred on 16 March by Ben- nett is Well established, and lends credence to Johnson's and Ousley's' testimonies about their telephone conversa- tion. In addition, their report of this call is corroborated by Wax. 21 A. Exh. 4(B). 22 Ibid. 23 Don R. Avants, 333; James F. Foreman, 386, and Leland Johnson, 387 (Jt. Exhs. 4(B), 6, and 7-the latter two documents are out-of-work lists that contain each applicant's master list number, as required by the referral rules) The General Counsel sought to supplement the evidence -with respect to Johnson by eliciting testimony from Onsley that he signed an out-of-work list, on 17 February (G.C Exh. 4), and from Leland Johnson that he worked a 7-day job in February and obtained a new master list number in March (as required by the rules) Accordingly, Ousley Was entitled to referral before Johnson Bennett asserted that Avants did not answer Bennett's call on 16 March, but the National Maintenance records show that Avants was re- ferred on that day. I accept the business records as accurate (Jt. Exh 4(B))- Bennett also contended that Wilson Watts was called by name, and that Charlie Blocker was referred on 16 March Bennett said that he was reading from a list prepared "that day." However, the National Mainte- nance records show that Watts and Blocker did not start work until the next day, 17 March (id.) On the crucial issue of the asserted attempt by Bennett to call Ousley on 16 March, the consistent testimonies of Ousley and Wax have more probative value than Ben- nett's assertion that he tried to call. Although 'Bennett claimed to be reading from a list he had made, some of his other assertions,' based on the same list, are demon- strably incorrect when compared with the National 'Maintenance business records.24 I credit Ousley and Wax, and find that Bennett did not attempt to call Ousley on 16 March. It follows that Ousley was entitled to referral on that day, that a job was available, and that the Union referred other persons with-lesser entitlement to employment.25 D. Bennett's Alleged Solicitation of Union Members on 8 May to Inflict Bodily Injury on Ousley 1. Summary of the evidence Ousley testified that•he attended a general membership meeting on 8 May, - at which' 30-40 members were -present. After the opening ceremonies, the recording sec- retary read a charge that Ousley had filed with the Board.26 Business Representative Bennett then took the floor and said that somebody ought to take Ousley "out- side [and] work him over." Bennett added that he would do so himself, except for his position with the Union. Leland Johnson testified that, at this meeting, Bennett said that somebody "ought, to take Samie Ousley outside and whip his ass until he drops those charges that he brought against the- hall." On cross-examination, Johnson agreed that his pretrial affidavit did not contain "whip his ass" language. Instead, as elicited from Johnson by Respondent's counsel, Bennett said that "somebody ought to take Samie Ousley, out and work ,him over and make him withdraw the charges." Johnson first reaf- firmed his testimony on direct examination, and, then stated that "whip his -ass" and "work him over" meant the same thing. Ousley did not recall Bennett using the former terminology. Bennett denied the accuracy of Ousley's charge, but agreed that he spoke at a membership meeting on 8 May. There were about 60 members present, according to, the business representative. After the recording secretary re- ferred to charges filed with the Board against Bennett and the Union, Bennett said that it cost the Union money to hire a lawyer -to fighte the charges. The Union had ' in- curred over $50,000 in legal, fees in- the- past several years. Bennett called Ousley "by name,"' and asked him why he did -not use the Union's grievance procedure before taking the matter to the National,Labor Relations Board.27 He,invited individuals with grievances to come to his office before going to the Board. 24 Ibid. 25 The National Maintenance records show that there were other re- ferrals on 17 and 18 March (Jt. Exh 4(B)). However, there is no com- plaint allegation with respect to these referrals 26 As noted above, although the charge that originated this proceeding was filed on 27 May, and thus subsequent to the 8 May! membership meeting, Ousley had filed an earlier charge on 23 April , which he with- drew on 22 May, after the union meeting. E7' The referral rules contain a provision allowing a member who be- lieves that he has been discruninatorily denied employment ' to appeal to the Union within 24 hours (Jt. Exh. 1, sec. 6). ' CARPENTERS LOCAL 720 (NATIONAL MAINTENANCE) 621 Bennett denied that he told the membership that some- body should take Ousley outside and "whip his ass" or "work him over." However, he agreed that, he "did say ... that some of the members needed to talk to Mr. Ousley and more or less let , him know what it was cost- ing.,, Bennett further testified that Leland Johnson stood up and said-"that it was terrible that you couldn't come to the union hall without being threatened to `get your ass kicked,' or something." At that point, according to Ben- nett, the union president (Kinchen) told Johnson that he was out of order' for using profane language.28 - Union member Bert McGowan denied that' Bennett suggested that somebody should take Ousley outside and "whip his ass" or "work him over." Instead, McGowan affirmed Bennett said that "somebody should have a talk with Mr. Ousley and tell him about the, birds and the bees." Union member Thomas Shaffett also, denied that Bennett used any "threats." According to Shaffett, Ben- nett said that "somebody ought to talk to him and try to get him to do [it] the right way ... by the proper chan- nels." Shaffett also recalled a protest from Johnson about union members being threatened with having their "asses whipped." Union members Wallace Goetzmann and Mat- thew Gautreau gave similar testimony, the latter repeat- ing the "birds and bees" remark attributed to Bennett by McGowan, and the fact that Johnson was called down for using vulgar language. 2. Factual analysis There is no doubt that Bennett spoke about an unfair labor practice charge that Ousley had filed, and it is clear that it was the, first such charge filed in April-the 8 May meeting was held prior to the filing of the instant charge on 27 May: It is also clear that Bennett criticized the filing of charges because of their expenses to the Union, and that he called Ousley by name and solicited union members to talk to Ousley. Finally, from the testimonies of Ben- nett, Shaffett, and Gautreau, there is no doubt that John- son stood up and' protested that union members should not have to receive threats at union ,meetings about get- ting their, "ass[es] whipped." Johnson's protest during the hearing is the only evi- dence of spontaneous reaction, at the time, to whatever it was that Bennett said. There is no evidence that John- son's interpretation of Bennett's remarks was denied by the latter at the meeting. All ' that ' happened after John- son's comment was that Union' President Kinchen called him out of order for using profane language. It is unlikely that Johnson would have said what he did if Bennett had merely invited the union membership to talk to Ousley about the "birds and the bees," and the grievance procedure. Such solicitation by Bennett could not reasonably have been interpreted as a threat. Ousley and Johnson appeared to -be trustworthy witnesses, al- though the latter on direct examination confused what he said at the meeting with what Bennett said. Nonetheless, 29 The International constitution provides that a member using profane language ata,meeting "shall be admonished by the chair" (Jt. Exh. 11, sec. 33(C)). Johnson's pretrial affidavit, evidence of which was elicit- ed' by the Respondent, is consistent with Ousley' s testi- mony. I accept Bennett's testimony that he, protested the cost of unfair labor practice charges. What is in issue is the nature of his remarks about Ousley. Almost all of, Ous- ley's testimony and the affirmations in Johnson's pretrial affidavit are acknowledged by the Union's witnesses. All that is contested is the substance of Bennett' s remarks about Ousley. Because of Johnson's reaction at the meet- ing to Bennett's statements, the substantial consistency of Ousley's testimony and Johnson's affidavit, and the fact that Ousley and Johnson appeared to be the most credi- ble of the witnesses, I accept their and, in part, Bennett's version of what Bennett said-that unfair labor practice charges against the Union are expensive, that somebody ought to take Ousley outside and work him over to make him withdraw the charges, and that Bennett 'would do it himself except for his position as a union official. As indicated, Ousley in fact withdrew the first charge on 22 May, about 2 weeks after the union meeting and filed the instant charge a week later, on 27 May. Al- though there are differences in the charges, the 16 March allegation appears in both of- them. On cross-ex- amination, Ousley said that the Board agent told him to withdraw the first charge because he was running out of time and needed witnesses. According to Ousley, Bennett told him in June that he was costing the Union money, and that he was "'nothing but a damned dog." Ousley replied that it was Bennett who was costing the Union money because he was "not running it right." Bennett denied calling Ousley a dog. I credit Ousley. E. The Alleged Refusal to Refer Ousleey' to Tero- Technology on 13 May Leland Johnson worked for about 3 weeks for Nation- al Maintenance at the Dow Chemical job. Accordingly, under the referral system, he should have been assigned a new master list number higher than the 387 number that he had when assigned to the National Maintenance job. Ousley was not referred for work between March and May, and thus , retained his 318 master list number. Bennett acknowledged that Johnson had a higher number. Business Representative Bennett referred Johnson to a job with Tero-Technology on 13 May. According to Johnson, Bennett called him between 41:30 and 5 p.m. that day and offered him the job. Further, according to Johnson, Bennett told Johnson to call Ousley and tell the latter that Bennett had tried to call Ousley. Johnson re- sponded merely by saying that he would take the job. Bennett contended that he tried to call Ousley three times between 4:15 and 5:15 p.m. but that Ousley was not at home. Bennett stated that he told Johnson of these asserted attempts and told Johnson to inform Ousley. Further, Bennett testified that he told Johnson, "You guys don't need to trump up something now and go back to the Labor Board." Johnson testified that he knew Ousley's telephone number, recited it at the hearing, and affirmed that he 622 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD called Ousley about 15-20 minutes after Bennett's call to Johnson, i.e., about 5 p.m. or shortly thereafter on 13 May. Johnson informed Ousley about Bennett's alleged effort-to reach Ousley on the phone. Ousley replied'tliat he "was there." Johnson's averment of the time of Bennett's call is confirmed by the latter's testimony. Thus, Bennett ex- plained that he did not receive word about the Tero- Technology job until he returned home from his office. He then called back to his office and had a secretary read the names off an out-of-work list. Johnson's and Bennett's testimonies thus establish that Bennett called Johnson in the late afternoon. Ousley confirmed that he was home all day on 13 May. The only call he received was from Johnson, who told him that Johnson had received a referral from Ben- nett, and that Ousley should "stick by the phone." How- ever, no call came from Bennett, according to Ousley. On cross-examination, Ousley said that Webb Wax was with him on 13 May, but corrected himself on redirect examination to affirm that Wax was with him in March rather than May. Ousley also stated on cross-examination that Johnson called him at 1 p.m.-the same time that Johnson had called Ousley on 16 March. Ousley asserted that he did not protest to Bennett about the failure to refer him on 13 May because it would not have done any good-he had been "on his [Bennett's] shit-list too long." Factual Analysis As on 16 March, the issue is whether Bennett attempt- ed to call Ousley and refer him to a job. I credit the tes- timonies of Johnson and Ousley that they had a tele- phone conversation on that day, and that Ousley was at home during this conversation. I credit Johnson's testi- mony that this conversation took place about 5 p.m. or shortly thereafter, rather than Ousley's belief that it took place at an earlier time. The fact that Bennett's call to Johnson took place in the late afternoon is established by the testimonies of both Bennett and Johnson-and it is obvious -that Johnson's call to Ousley informing him of Bennett's call had to take place thereafter. Ousley for a moment confused Johnson's 13 May call with his 16 March call.29 It follows that Ousley was at home on 13 May, with an operating telephone at the same time, according to Bennett, that the latter tried without success to reach him. This fact casts doubt on Bennett's testimony. Be- cause of this doubt and the fact that Bennett did not appear to be a truthful witness, I conclude that he did not in fact attempt to call Ousley and that the latter was passed over for referral on 13 May. Ousley rejected all except one on the ground that he had a doctor's appointment. Further,- according to Bennett, Ousley canceled the one job he accepted because he had to have a urinalysis. On cross-examination, Ousley acknowledged having been offered and rejecting some jobs, although not all those alleged by Bennett. Ousley credibly testified that he is on medication and had ' to reject some of the jobs for this reason. One of them was refused because it would have lasted only a few days. The Union in its brief argues that Ousley is "undoubt- edly a malingerer who is more interested in stirring up political discord '. . . than in accepting gainful employ- ment," and "perhaps would have rejected the [16 March and 13 May] jobs" if they had been offered to him. This argument is speculative and without merit. At the hearing, Bennett testified that Ousley was on a "Not for Rehire" list at National Maintenance, and would not have been employed even if- he had been re- ferred to the job. On the other hand, Bennett also testi- fied that it is never certain whether a member ' on a "Not for Rehire" list will in fact, be rejected by the employ- er-some applicants get the problem resolved on the job- site.' Ousley credibly testified that he was on a National Maintenance "Not for Rehire" list at one time, but that this restriction was removed, with Bennett's assistance, and that he has worked for the Company since that time. These events do not assist the Union's case.SO G. Legal Analysis-and Conclusions It is well established that a union threat of physical vi- olence intended to restrain a member's right to use the Board's processes violates Section 8(b)(l)(A) of the Act. $1 Bennett's solicitation of union members, at a meeting where many members were present, to take Ousley outside and "work him over" in order to make him withdraw the first unfair labor practice charge, con- stituted unlawful coercion. Although proof of the effect of a threat is not necessary to establish a violation,, Ousley in fact did withdraw the first charge' after having been threatened. His explanation of the reason for with- drawing and almost immediately refiling the charge is implausible; that the withdrawal was caused by the threat is a permissible inference. It is well established that a union fails to fairly repre- sent its members when it departs from objective criteria in the operation of an exclusive hiring hall, including, as here, the failure to refer applicants entitled to referral. Evidence of intent to discriminate is not necessary to es- tablish a violation of Section 8(b)(1)(A) of the Act.82 F. The (Jnion's Defenses Business Representative Bennett testified that he of- fered Ousley several jobs in July and September and that 29 Although Ousley's testimony on redirect examination did not cor- rect his imperfect recollection of the time of Johnson's call-as it did about the date that Wax was present-it is apparent that Ousley's testi- mony concerning the time of his conversation with Johnson on 13 May is based on his confusion of that date with 16 March 8O Ousley stated that Bennett "at one time" said that Ousley "got fired for exposing [himself] in-the ladies' restroom at Kaiser Aluminum," and was placed on a not-for-rehire list. Bennett testified that Ousley was placed on the "Not for Rehire" list at Kaiser, but does not assert the reason. This evidence has ' nothing to do with the issue of whether Ousley was unlawfully denied referral to National Maintenance and Tero-Tech- nology. Si Oil Workers Local 2-947 (Cotter Corp.), 270 NLRB 1311 (1984). 32 Iron Workers Local 601 (Papco, Inc.), 276 NLRB 1273 (1985), enfd. 122 LRRM 2576 (4th Cir. 1986). CARPENTERS LOCAL 720 (NATIONAL MAINTENANCE) The Union's refusal to refer Ousley for employment on the National Maintenance and Tero-Technology jobs constituted a violation of this section of the Act. Where discriminatory motivation is established, the Union additionally violates Section 8(b)(2) of the Act. The Board has relied on intraunion political strife in which the alleged discriminatee participated, and a mem- ber's filing of an unfair labor practice charge against the Union, both of which took place herein, to support a fording of discriminatory motivation.33 I conclude that there is ample evidence of discriminatory motivation in this case, as shown by Ousley's political opposition to Bennett within the Union, Ousley's participation in other unfair labor practice hearings, directed against Bennett and the Union, his filing of the first unfair labor practice charge in this case that led to the threat at the- 8 May union meeting, and Bennett's abusive and obscene state- ments to Ousley on other occasions. Accordingly, I find the Union's failure-to refer Ousley also violated Section 8(b)(2) of the Act. In accordance with my findings above, I make the fol- lowing CONCLUSIONS OF LAW 1. National Maintenance Corporation and Tero-Tech- nology are both employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent Millwright and Machinery Erectors, Local Union 720, United Brotherhood of Carpenters and Joiners of America is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening -a physical assault on Samie W. Ousley in order to induce him to withdraw an unfair labor practice charge, the Respondent thereby violated Section 8(b)(1)(A) of the Act. 4. By refusing to refer Samie W. Ousley for employ- ment with National Maintenance Corporation on 16 March 1986, and to Tero-Technology on 13 May `1986, to which employment he was entitled pursuant to Re- spondent's hiring hall procedures and its collective-bar- gaining agreements with employers, in retaliation for Ousley's political opposition to the business representa- tive, his participation in other unfair labor practice pro- ceedings against the Respondent and the business repre- sentative, and his filing of an unfair labor practice charge against the Respondent, the latter thereby violated Sec- tion 8(b)(1)(A) and (2) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of the Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action that will effectuate the policies of the Act. Having found that the Respondent unlawfully refused to refer Ousley to a job with National Maintenance Cor- poration on 16 March 1986, and with Tero-Technology 33 H. AT. Robertson Co., 263 NLRB 1344, 1362 (1982). 623 on 13 May 1986, I shall recommend that the Respondent refer Ousley for, employment on an equal and nondis- criminatory basis, and make him whole for any loss of earnings suffered' by him as a result of the Respondent's unlawful refusal to refer him. Backpay and interest is to be computed in the manner prescribed in F. W Wool- worth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (l977).34.I shall also recommend that the Respondent notify Ousley in writing that the referral system is available to him on an equal and nondiscrimina- tory basis. Because this case represents the second time that the Respondent has engaged in conduct violative of the Act, it has demonstrated a proclivity to violate the Act. Be- cause the conduct herein, particularly the threat of as- sault against Ousley, constituted a serious unfair labor practice demonstrating a general' disregard for employ- ees' fundamental rights, the cease and desist order will be a broad one requiring the Respondent to cease-and-desist from infringing in any other manner on rights guaranteed employees by Section 7 of the Act.35 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed36 ORDER The Respondent, Millwright and Machinery Erectors, Local Union 720, United Brotherhood of Carpenters and Joiners of America, Baton Rouge, Louisiana, its officers, agents, and' representatives, shall 1. Cease and desist from (a) Threatening to assault Saniie W. Ousley or any of its members for engaging in union political activity, filing unfair labor practice charges, or otherwise engaging in protected activity. (b) Refusing to refer Ousley or any employee or appli- cant for employment through its employment referral system in disregard of the provisions of its collective-bar- gaining agreements with various associations and em- ployers or in disregard of its published rules and regula- tions regarding such referrals. (c) In any other manner restraining or coercing em- ployees or applicants for employment in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the purposes of the Act. (a) Refer Samie W. Ousley for employment to posi- tions for which he is qualified on an equal and nondis- criminatory basis with other employees and applicants and notify him in writing that the referral system is available to him on this basis. (b) Make Samie W. Ousley whole for any loss of earn- ings he may have sustained because of the Respondent's 84 See generally Isis Plumbing Co, 138 NLRB 716 (1962). 35 See Iron Workers Local 601 (Papco, Inc.), 276 NLRB 12'73 (1985), and authority cited therein. 36 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD unlawful failures to refer him for employment, by paying him a sum of money equal to that which he would have' earned absent the Respondent's unlawful conduct, plus interest, as provided in the remedy section of this deci- sion. (c) Preserve and, on request, make available to the Board or its agents for examination and'copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its business offices, meeting halls, and dis- patch halls copies of the attached notice marked "Ap- pendix."37 Copies of the notice, on forms provided by the Regional Director for Region 15, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. $' 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 or- dered us to post and abide by this notice. WE WILL NOT threaten to assault Samie W. Ousley or any of our members for engaging in union political activ- ity, filing unfair labor practice charges, or otherwise en- gaging in protected activity. WE WILL NOT refuse to refer Ousley or any employee or applicant for employment through our employment referral system in disregard of our collective-bargaining agreements with employers and our published employ- ment referral system. WE WILL NOT in any other manner restrain or coerce employees or applicants for employment in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL refer Samie W. Ousley for employment-to positions for which he is qualified on an equal and non- discriminatory basis, and inform him in writing that our referral system is available to him on that basis. WE WILL make Ousley whole for any loss of earnings he have sustained because of our unlawful refusal to refer him for employment, with interest. MILLWRIGHT AND MACHINERY ERECTORS, LOCAL UNION 720, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA