Federated Department Stores, Inc.

FEDERATED DEPARTMENT STORES 951 Abraham & Straus, a Division of Federated Depart- ment Stores, Inc. and Joseph Smith Local 1456, International Brotherhood of Painters and Allied Trades, AFL-CIO and Joseph Smith and Abraham & Straus, a Division of Federated Department Stores, Inc., Party in Interest. Cases 29-CA-11332 and 29-CB-5578 30 December 1987 DECISION AND ORDER BY MEMBERS BABSON, STEPHENS, AND CRACRAFT On 26 August 1986 Administrative Law Judge Robert T. Snyder issued the attached decision. The Respondent Union filed exceptions and a support- ing brief, and the Respondent Employer filed an answering 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, i and conclusions, to modify his remedy,2 and to adopt the recommended Order as modified.3 1. We agree with the judge's findings that the Respondents had an exclusive hiring hall arrange- ment under which the Respondent Union unlawful- ly refused to register and refer Joseph Smith be- cause he was not a member of the Union, and that the Respondent Union was party to collective-bar- gaining agreements with other employers under which it is the exclusive source of referrals and it operated its referral system so as to discriminate 1 The Respondent Union has excepted to some of the Judge's credibil- ity findings The Board's established policy is not to overrule an adminis- trative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Stand- ard 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 re- versing the findings In the absence of exceptions we adopt the judge's finding that the Re- spondent Employer violated Sec 8(a)(3) and (1) of the Act 2 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after I January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to I January 1987 (the effective date of the 1986 amendment to 26 US C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 3 In its exceptions the Respondent Union contends that the require- ment contained in sec 2,B,6 of the judge's recommended Order that no- tices be sent to all painter applicants who use the District Council 9 (DC- 9) referral hall is unduly burdensome because it contemplates sending no- tices to approximately 6000 applicants We note that the judge's recom- mended Order does not require that notice be sent to each individual ap- plicant, rather the judge's recommended Order requires only that notice be given to potential applicants at the DC-9 hall by forwarding a notice setting out the referral system procedures to DC-9 for posting and publi- cation in its newsletter As we do not, under the circumstances of this case, find such a requirement to be unduly burdensome, we shall affirm the judge's recommended Order in this regard against nonmembers. We do not agree with his finding that the Respondent Union violated the Act by its failure to keep written records. The Board has held that, while an exclusive hiring hall must be operated on the basis of objective criteria and standards, the absence of written standards is not itself violative of the Act, but is one factor to be considered in determining whether a hiring hall has been operated objectively. Laborers Local 394 (Building Contractors), 247 NLRB 97 fn. 2 (1980). We agree with the judge, however, that, as part of the remedy, the Respondent Union should establish written criteria and maintain written records in the future. 2. The judge found that the Respondent Union violated Section 8(b)(1)(A) by breaching the duty of fair representation it owed Smith. The com- plaint, however, contained no such allegation. The General Counsel never moved to amend the com- plaint, even though specifically invited to do so by the judge, but did argue the violation in her brief to the judge. In these circumstances, we find that the Respondent Union was reasonably led to be- lieve at the hearing that the case did not present a duty-of-fair-representation issue. In our view, the General Counsel's raising of the issue in her brief to the judge occurred too late, for by then the record had closed. We can only speculate as to how the Respondent Union might, have litigated this case differently if it had received timely notice of the issue. Accordingly, as we conclude that the matter was not fairly or fully litigated, we reverse the judge's finding that the Respondent Union breached its duty of fair representation, and we shall delete the appropriate section from the judge's recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that A. Respondent Abraham & Straus, A Division of Federated Department Stores, Inc., Brooklyn, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order. B. Respondent Local 1456, International Broth- erhood of Painters and Allied Trades, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the Order as modified. 1. Delete paragraph 2,A(4) and reletter the sub- sequent paragraph. 2. Substitute the attached notice marked "Appen- dix B" for that of the administrative law judge. 287 NLRB No. 95 952 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT maintain, enforce, or otherwise give effect to an exclusive referral arrangement with Abraham & Straus, A Division of Federated Department Stores, Inc., or with any other em- ployer with whom we have an exclusive employ- ment referral agreement or arrangement pursuant to which nonunion member applicants are denied the opportunity to register and union members are referred for employment in preference to nonunion members. WE WILL NOT refuse to register any employee as an applicant for referral under our employment re- ferral system because that employee is not a member of the Union. WE WILL NOT operate our exclusive referral system in such a manner as to cause the aforesaid Employer or any other employer with whom we have an exclusive referral agreement or arrange- ment to deny employment to any employee or ap- plicant for employment because of lack of union membership. WE WILL NOT in any like or related manner re- strain or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL notify the aforesaid Employer in writ- ing, and furnish Joseph Smith with a copy, that we have no objection to referring him for employment to the aforementioned Employer through our ex- clusive referral arrangement in his rightful order of priority, as a regular employee entitled to seniority on recall to work from layoff pursuant to article XVI(c) of our 1984-1987 agreement, and that we have no objection to his employment as a painter employee by the Employer or any other employer with whom we have an exclusive referral agree- ment or arrangement, and WE WILL request his hire and advise that he will have full use of our referral system without discrimination. WE WILL register Joseph Smith in our referral system and in conjunction with Abraham & Straus, A Division of Federated Department Stores, Inc., with ourselves primarily liable, make him whole for any loss of earnings he may have suffered be- cause of the discrimination against him, plus inter- est, and WE WILL make Smith whole for any loss of earnings he may have suffered because of dis- crimination against him arising from the unlawful operation of our exclusive referral system with other employers, plus interest. WE WILL keep and retain for a period of 2 years from the date of the Board's decision permanent written records of our hiring and referral oper- ations which will be adequate to disclose fully the basis on which each referral is made, and, on the request of the Regional Director for Region 29 or his agents, make available for inspection, at all rea- sonable times, any records relating in any way to the hiring and referral system. WE WILL submit four quarterly reports to the Regional Director, due 10 days after the close of each calender quarter subsequent to the issuance of the Board's decision, concerning the employment of Joseph Smith and other nonmember applicants subsequently found to have been similarly situated through our referral system. WE WILL place the referral registers, for a period of 2 years, on a table or ledge in our office for easy access and inspection by work applicants, as a matter of right, on the completion of each day's entries in such registers. WE WILL mail a notice to District Council 9 for posting and publication in its newspaper, and WE WILL publish in our newspaper to members infor- mation about the operation of our referral system as required by the Board's decision. LOCAL 1456, INTERNATIONAL BRO- THERHOOD OF PAINTERS AND ALLIED TRADES, AFL-CIO Beatrice Kornbluh, Esq, for the General Counsel. Peter D. Conrad, Esq (Proskauer, Rose, Goetz & Mendel- sohn), of New York, New York, for the Respondent Employer Gerald Schilian, Esq., of New York, New York, for the Respondent Union Joseph Smith, the Charging Party, of Queens, New York, appearing pro se. DECISION STATEMENT OF THE CASE ROBERT T. SNYDER, Administrative Law Judge These consolidated cases were heard by me on 20-22 Novem- ber and 12 December 1985 in Brooklyn, New York The complaints, which were consolidated and amended by order and issued on 21 August 1984, allege that pursuant to an arrangement, understanding, and practice that the Respondents have maintained with each other, requiring the Union to be the sole and exclusive source of referral of painter employees to the Employer; the Union failed and refused to register and refer Charging Party Joseph Smith for employment with the Employer because he is not a member of the Union, the Employer thereby vio- FEDERATED DEPARTMENT STORES lated Section 8(a)(1), (2), and (3) and Respondent Union thereby violated Section 8(b)(1)(A) and (2) of the Act. Both Respondents are also alleged to have violated the same sections of the Act by the Union's maintenance of a referral system in which it fails and refuses to register nonmembers for referral and refers members for employ- ment with the Employer and other employers in prefer- ence to nonmember employees. Each Respondent filed answers, denying that they maintained any exclusive em- ployment referral arrangement, understanding, or prac- tice and that they had committed any violations of the Act, as alleged. In this decision, the Respondent Abra- ham & Straus, a Division of Federated Department Stores, Inc shall also be called interchangeably A & S or Employer and Respondent Local 1456, International Brotherhood of Painters and Allied Trades, AFL-CIO shall also be called interchangeably Local 1456 or Union On the entire record,' including my observation of the demeanor of the witnesses and after careful consideration of the posthearing briefs filed by each of the Respond- ents and the General Counsel, I make the following FINDINGS OF FACT . 1. JURISDICTION AND LABOR ORGANIZATION STATUS The Employer, a domestic corporation, maintains its principal office and place of business at 420 Fulton Street, Brooklyn, New York (the Brooklyn Store) and at various other locations in the State of New York, where it is engaged in the sale and distribution at retail of cloth- ing, furniture, and related products. Annually, it, in the course and conduct of its business operations described, derives gross revenue in excess of $500,000 and pur- chases and causes to be transported and delivered to its New York stores the products described and other goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 are transported and delivered to the stores in interstate com- merce directly from States of the United States other than the State of New York and in foreign commerce di- rectly from foreign countries The Employer admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The consolidated complaints allege, Respondents admit, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. II THE ALLEGED UNFAIR LABOR PRACTICES A The Collective-Bargaining Relationship Between A & S and Local 1456 For some years until 1981 Rhemstem Construction Company, Inc (Rheinstein) had performed construction work at the A & S Brooklyn store, employing its own workmen for this purpose Rheinstein Management Com- pany (Rheinstein Management), a subsidiary, supplied carpenters and pipefitters for maintenance work per- formed there under a contract with A & S DiMaria Construction Company, owned and operated by Paul Di- ' Certain errors in the transcript are noted and corrected 953 Maria, performed maintenance painting work with its own staff under a separate contract. The workmen em- ployed by Rheinstein and DiMaria were represented for purposes of collective bargaining by the New York Building and Construction Trades Council' s Maintenance Division, AFL-CIO (the Council) with each category of workmen represented by a trades council union affiliate in the particular trade. Thus, the painters employed by DiMaria were members of, and represented by, District Council 9 (DC 9) an intermediate union body with affili- ated locals in the metropolitan New York City area, all affiliated with the International Brotherhood of Painters and Allied Trades, AFL-CIO.2 In 1981, A & S agreed to employ the three trades di- rectly and Rheinstein's existing agreement with the Council was assigned to A & S, which was substituted as the employer.3 A & S's initial labor agreement with the Council was made effective 4 September 1981 for a term of 3 years. A & S recognized the Council as exclu- sive bargaining agent for its regular employees in the classifications of maintenance carpenters, maintenance pipefitters, and maintenance painters, and their helpers, who are employed by A & S at its existing New York City locations The contract did not list them, but in ad- dition to the Brooklyn store they include a Brooklyn service building, warehouse, and garage and truck serv- ice facility, and a Rego Park, Queens store A "regular employee" is defined as "a full time employee and a reg- ular member of the Employer's staff who has been con- tinuously in the Employer's employ for one (1) month, and not a contingent, casual, temporary or part time em- ployee." The agreement requires the Employer to main- tain union shop conditions as authorized by the Labor Management Act of 1947, as amended In article XVI of the agreement, Termination of Employment, prior serv- ice in the employ of Rheinstein Management and Rhein- stein was included in the period of service for all pur- poses. In its third paragraph, that article continues: In case of layoffs occasioned by reduction of forces (and recall to work of men who have been laid off), consideration shall be given to the employee's length of service in the particular classification or type of work and to his ability to perform the avail- able work. Where factors other than length of serv- ice are relatively equal, an employee with the great- est length of service shall be given preference. The same provision shall apply to recall to work of men laid off during the previous year, who shall be 2 The record is not clear why District Council 9, rather than Local 1456, see infra, was the representative of the painters while they were employed by DiMaria However, District Council 9 or its local affiliates represent painters in construction rather than maintenance painting and it may be that DiMaria, as a contractor, was deemed engaged in construc- tion work even though the work of its employees appears to have re- mained the same once they became employed by A & S as a successor employer See infra s The preambles to the contract, which memorialize these events, make no mention of the DiMaria Construction Company, evidence of that Company's relationship with A & S and subsequent 1981 successorship as employer by A & S being based on uncontested testimony by Robert Wieler, A & S Operating vice president of engineering and property manager 954 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD given three (3) working days notice by telegram of re-employment. The agreement also contains the usual arbitration clause, permitting either party to demand arbitration of any dis- pute arising out of the proposed contract , including but not limited to the interpretation , application, construc- tion, or performance thereof. The three employees previously employed by DiMaria at the time A & S became successor employer were Paul DiMaria, John Fielke, and Larry Prisco. They each joined Local 1456 at the time they went on the A & S payroll. Local 1456 represents maintenance painters in New York City and has collective-bargaining relation- ships on behalf of their maintenance painters with vari- ous Department Stores and other employers in the City As the painting trade local affiliated with the Council's maintenance division it succeeded DC 9 as the represent- ative of the painters once they became direct mainte- nance employees of A & S. DiMaria became the work- ing foreman and Fielke the shop steward. The 1981 agreement between A & S and the Council was executed , as parties , by representatives of A & S, the Council 's Maintenance Division, New York District Council, United Brotherhood of Carpenters and Joiners of America , Steamfitters Local No. 63803, and Interna- tional Brotherhood of Painters and Allied Trades, AFL- CIO, Local 1456, each of the Council's affiliated unions representing its respective classifications of employees in bargaining with A & S under the multiunit, joint agree- ment Robert A. Brown , senior vice president -personnel, signed on behalf of A & S and John J. Brennan signed on behalf of the Council , as chairmen , and for Local 1456, as business manager. B. Evidence on Which the General Counsel Relies to Establish Exclusive Referrals of Painters Under the Agreement and the Union's Preference of its own Members The Charging Party, Joseph Smith , has been a painter since 1969 when he secured his first job. In 1979, while employed by Belt Painting, a painting contractor, he joined District Council 9 when informed he was required to do so under a union-security clause in effect in an agreement between Belt and the Union . At the time, he was assigned to and became a member of Local 25, one of the District Council's affiliates , under a practice as- signing such membership according to residence within the geographic area covered by the constituent local. Smith thereafter was assigned work through the refer- ral service operated by DC 9 and not by its constituent locals. He had the status of a journeyman mechanic be- cause of his 5 years or more of painting experience and because he was at least 25 years old at the time . He pro- cured referrals by signing his name, name of his last em- ployer, and telephone number on a list maintained for unemployed member-painters at its headquarters and thereafter being called to jobs. These jobs were by and large of short duration, lasting usually a period of months, apparently only as long as the current painting project of the contractor continued, although Smith had one referral to a job which lasted some years. Around 10 April 1983, Smith received a telephone call from Dennis Blumberg, assistant secretary-treasurer of DC 9. Blumberg told him that the A & S store in Brooklyn needed a painter and they wanted a good painter and he was sending him to the job When Smith asked about the nature of the job, Blumberg said it was painting but the store would not be paying him the same hourly rate he usually got when he worked for a con- tractor since A & S had its own rate, which is less, the hours are longer and A & S pays certain benefits, such as contributions to the annuities fund. It pays into the in- surance fund and retirement benefit fund . Blumberg noted the job was a good one and Smith should consider taking it because it could become permanent if somebody retires, he might have a chance of becoming a permanent painter. Blumberg said he would be painting 5 days a week from 8 a.m. to 4 p.m. The job would be temporary, and Smith would learn how long it would last when he went down there. The next day, 11 April, Smith went to A & S and spoke with John Galtieri, construction coordinator and supervisor of the carpenters and painters employed in the Brooklyn store . Smith asked how long the job would last. Galtieri said he did not know, it could be 3 weeks, 3 months, or 3 years. Galtieri noted that when they hire a man, it was because their budget allows and when they let a man go, it was because their budget did not allow them to keep him , that was why he was not able to tell him how long the job would last. Smith started to work on 12 April. He joined DiMaria, Fielke, and Prisco on the A & S work force of painters. Fielke, the steward , told him that as a condition of work- ing at A & S stores and a union rule, he has to collect at the end of every month a check for 2 percent of the money he earned during that period The money was to be paid to him and he would take it down to the Union, Local 1456. Smith paid this working assessment on a reg- ular basis. Fielke also checked to see if Smith was in the Union , and Smith showed him his DC 9 dues book, which Fielke examined to see if Smith was paid up. Smith continued paying his monthly dues to Local 25 of DC 9 while employed by A & S. Smith worked continuously for A & S for 9 months, until January 1984. He did the same work as the other painters He worked only at the Brooklyn store. Smith learned from looking at the labor contract, shown him by Fielke after about 6 months, that he was receiving the contractual wages. Concerning certain other contractual benefits, such as personal sick days, paid holidays, and vacation, on his inquiry after starting, Smith was taken by Fielke to see Assistant Building Superintendent Fred Hungerford for A & S at the Brooklyn store who man- aged and administered the labor contracts on a day-to- day basis for all the trades employed there.4 Hungerford ° Although Supervisor Galtteri testified that he reported to John Fay, director of operations of the Brooklyn store , as did Hungerford , it would appear that Hungerford held an intermediate supervisory position above Galtieri in the hierarchy of supervision and management in the operation and maintenance of the Brooklyn store FEDERATED DEPARTMENT STORES 955 told Smith he would be entitled to these benefits after he had completed 125 working days on the job. Smith, whose testimony on this subject was not contradicted, testified that after completing that time he received those contractual benefits. Sometime during this period of employment, Smith asked Fielke if a point comes if he got laid off was he entitled to a callback. Fielke said yes, he was because the carpenters and painters are covered under the same con- tract, and there are carpenters that were laid off and they were called back so he felt Smith had the seniority and would be called back ' After 6 months on the job, Fielke suggested to Smith that he should switch over to Local 1456 because he had been there for a long time and it looked as though he would be a permanent painter. Fielke said he should find out about switching over. Smith called Blumberg of DC 9 and asked how he should go about making the switch in membership. Blumberg said he would call John Bren- nan and find out and Smith should call him back. Smith did call back and Blumberg told him that John Brennan said as of now Smith had nothing to worry about and if while he was there somebody retires and Smith auto- matically becomes a permanent painter for A & S,' then the change would be required for him to go into 1456. All of these conversations took place within a matter of days. After Smith had been employed 6 months, A & S hired two additional painters. Smith explained that at this point he went to Galtieri and asked if he was still a tem- porary painter or was there a special rule that after a period of time he would become permanent Galtieri ex- plained that as far as he knew nobody who works for the painters is guaranteed a permanent job. He said that as far as temporary, he did not know, but that according to the rules if there is a layoff, the last man in is the first man who goes. Galtieri said that whoever has more se- niority is entitled to be called back first, and Smith had more seniority than the three other painters, and had more seniority than the other two men that came after him Galtieri added that if one of the guys that he met there retired, he would be the first in line to be called to replace them. Either at this point, or sometime later, but while still employed, Galtieri, in talking with Smith about the rules of seniority that applied at A & S, re- ferred to carpenters who had been laid off and then re- called Galtieri's references were similar to Fielke's, the painter shop steward, when Smith had also asked him about his status in case of layoff. In fact, after Smith's January 1984 layoff, when he was later referred again to work at A & S in August 1984, he saw two of the five carpenters who had been laid off with him in January, called back to work at the store About 28 January 1984, Foreman DiMaria told Smith that John Galtieri said he would have to lay Smith off because there was no money in the budget to carry him and five other carpenters. The foreman said Smith should give him his telephone number and in case they decide the budget will have enough money, he would very much like to call Smith back and he said he would give Smith's number to Galtieri In addition to his regu- lar wages Smith received pay for his accumulated unused sick days and vacation days Smith's last assign- ment had been the painting of an office. At the time of his layoff the two painters hired after him had already ceased working At the time of his layoff Smith had not given Fielke the 2-percent Local 1456 working dues for his last month of employment Fielke suggested they meet at 45 West 40th Street in Manhattan, the DC 9 headquarters where Local 1456 was having a membership meeting, and Smith could meet and give the money directly to John Brennan, the Local's business manager About a week after his layoff, Smith went to the building, Fielke intro- duced him to Brennan, and Smith handed up a check for the assessment Brennan told Smith he should give him his telephone number and that if anything comes up by way of a job that he would give Smith a call because from what he learned from John Fielke, Smith was very reliable, went to work every day, and was a good worker, and if anything came up, he would give Smith a call Smith told Brennan that he would be available for work, and any job he has he wants to give him, he can call Smith up and that was why Brennan took his number. (Tr 484-485.) About a week following this meeting, Brennan tele- phoned Smith and gave him a telephone number to call and an address to see someone about a job. The job was for a painter on a regular basis at a building located at 9 West 57th Street in Manhattan Brennan told him that they might need a painter there because he had a painter he had sent down there that walked off the job and he had sent another, one and he thinks he also walked off the job and Smith seemed to be reliable, so he decided he would give Smith a call and he should go down there and see if he gets the fob., Smith went to the location, filled out an application, and was told they would call him. When they did not, he called back and again was told when they are ready, they would call him Smith then called Brennan and reported these events. Brennan said he would call the individual involved and ask him what was taking him so long Brennan called Smith back and told Smith he had talked to the guy at 9 West 57th Street and the guy said he had to get the word from his boss before he could hire, and whenever his boss told him he would hire and probably give Smith a call Smith never got a call and never got the job for which he had applied. This prospect at 9 West 57th Street was at the time only a prospect The building did not employ a reg- ular painter and at the time Local 1456 had no contract with the building owner or managing agent. However, if a painter were to be employed, Brennan had no reserva- tions about getting an agreement covering the employee. Smith also never heard from Brennan again about an- other job and they did not talk again until sometime in March According to Smith, his visit to the union meet- ing in January after his layoff was the first time he had met or talked with Brennan. During this period of time, from the end of January until early March 1984, Smith was unemployed. Al- though registered with DC 9 following his layoff, he had turned down a painting job DC 9 had offered him in reli- ance on what he believed to be a good prospect for a 956 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD steady job at the 9 West 57th Street building and the commitment he had made to Brennan to follow up on the referral Brennan had made The offer was a call to report to a DC 9 employer the following morning This offer of a referral from DC 9 had been made within a very short period of time before his second call to Bren- nan and before he learned from the employer's lack of response that the prospect of a job there was dim Smith specifically denied informing Brennan that he had turned down a job from DC 9 and maintained that there was no job waiting for him through DC 9 when he contacted Brennan about his application at 9 West 57th Street During this same time, from late January to early March 1984, Smith returned twice to the Brooklyn store to see his old colleagues and to inquire about a return to the job In February, he saw the three regular painters with whom he had worked On his second visit, around 9 March 1984, Smith saw four painters working. Both the foreman and the shop steward pointed out the new man to Smith Steward Fielke said, "You know, we got a new guy here, but I assumed that you were working and you probably told John Brennan that you were working and you didn't want to come back, so we got a new guy here." Smith said, "No," he was not working and he was hoping that he would be called back. He un- derstood from John Galtieri they usually call back the carpenter or painter with the most seniority In addition to the three regular men, Smith learned the new man was Donald Peters, actually Donald Peters Jr Because he appeared to be quite young, Smith asked Steward Fielke whether he was an apprentice or journeyman Fielke told him that Peters was a young kid, 20 or 21 years old, and that he was a journeyman Smith also asked about Peters' union status and learned he was a member of Local 1456 as was his father In fact, Peters' father, also Donald Peters, was then a vice president of Local 1456 whose name appears on the Local 1456 sta- tionary just below that of John Brennan, president and business manager, and Peters Jr. became a member on 1 September 1983 Smith then went to see Galtieri He told Galtieri, "John, from what I recall, you told me that I had senior- ity and if there was a layoff and a recall, I would be enti- tled to a recall, and now I come in, I find there was an- other guy working, why didn't you call me?" Galtieri re- plied, "Joe, I had nothing to do with calling for a man and as far as I'm concerned, you did great work here and if I have to call, I would have gladly called you back for the job, but I had nothing to do with it " Gal- tieri added that as far as calling, from what he under- stands, anyone calling Smith should have been the Union Galtieri told Smith to give him his home phone number and he would make a few calls around to find out who made the call and why Smith was not called back and then he would get back to Smith Later the same day, 9 March, Smith telephoned Bren- nan, Smith identified himself and asked if Brennan re- membered him, that he worked for A & S stores. Bren- nan said yes Smith went on, "I just went to stop by there and I found out that there was another man on the job and I was led to believe that I would be called if they need somebody to work after I got laid off " Bren- from nan replied, "Really, you guys from DC 9 you don't usually get called back because when you work on jobs like that, you're just guest workers, so after you work and get laid off, that's the end of that and if you should be called back, you'll be putting my man out of work." (Tr 190) Smith said he did not understand what Bren- nan was saying. Smith said, "I thought if I was a painter, I was a painter disregarding what local I was from5 be- cause there's several locals, but nobody ever explained to me when I got the job that I was from DC 9 and he [Brennan] was from Local 1456. I did not know it was a difference " Smith asked if there was a rule some- where-something in writing to that Brennan said, "No, there wasn't, it was just an understanding " (Tr 190 ) Brennan said, as unfair as it may seem that sometimes his men worked on jobs that are controlled by DC 9 and they get bumped and there was nothing he could do about it. Smith then told Brennan he thought he was en- titled to a call back because he was led to believe that and he would just have to disagree with what Brennan was saying This ended the conversation. Later, while under cross-examination, Smith acknowl- edged that during their 9 March telephone conversation Brennan had also told him that he was hired temporarily and so that part of the contract (dealing with seniority on recall) is really referring to the other three men When Smith asked why he was being excluded by that part of the contract, but other parts where benefits were given he was included, Brennan, in substance, repeated that Smith was not entitled to a recall and somebody was on the job and Smith was not and that was it Shortly after this conversation, within a day or so, Smith met Galtieri in Galtieri's office Galtieri told him that he had found out that his boss, Wieler, made a call. Galtieri added that from what he learned if they need a man the store calls Local 1456, Brennan, -and he sends the man down. Galtieri said if Smith was to be sent back to the store, it would have to be by the Union and right now, there was nothing he could do about it By 15 March 1984, Smith had filed his initial charge against Local 1456 The complaint against Local 1456 issued on 4 May 1984 and hearing was scheduled for 13 August 1984 Before the scheduled date, on 23 July 1984, Smith filed the charge against A & S The hearing was adjourned, and ultimately a complaint was issued against A & S in the pleading in which the two cases were or- dered consolidated and complaint was amended on 21 August 1984 At no time was Smith ever told by Brennan, Fielke, or anyone else from Local 1456, that he had to register for work with Local 1456, or that he had the right to regis- ter for such work with Local 1456. Neither was Smith contacted by Brennan for any referrals to jobs under Local 1456 jurisdiction after the abortive late January call Then, in August 1984, Smith received a message on his home telephone answering machine from Dennis Blum- berg to go down to A & S store, that they needed a s The meaning of this phrase is regardless of what local Smith was FEDERATED DEPARTMENT STORES 957 man and he should take his tools and work clothes and go down there When Smith started work at A & S again that month, he joined the three regular painters. Donald Peters Jr was not then employed at A & S Some time later, probably in early November 1984,6 Peters was back working at A & S On his return, Fore- man DiMaria assigned Peters to work with Smith or Prisco, depending on the nature of the task Smith ob- served that Peters did not have his own work skills and was not able to do all the work that was required to be done on his own Peters could not spackle or plaster, smoothing and preparing walls and painting surfaces by filling cracks, holes, and imperfections with compounds prior to the actual painting. When he was assigned to work with Smith, Smith put Peters to work rolling simple walls be- cause he could not plaster Peters also worked better with a roller than with a brush Smith performed all the spackling and plastering when Peters was assigned to work with him Smith was again let go sometime in November 1984 probably before 13 November At that time he and Peters were painting one of the bathrooms Foreman Di- Maria told both of them that he had instructions to lay them off because A & S's budget did not have enough money to carry two painters. Smith had access to, but did not have a copy of, the 1981-1984 contract between A & S and Local 1456 at the time he first worked there He was able to read the copy maintained on the job by the shop steward. He sub- sequently received his own copy After his second layoff in November, Smith returned to A & S to ask Fielke for a copy of the successor agreement running from 4 Sep- tember 1984 to 4 September 1987 Fielke said he could not give Smith a copy, that it was not issued yet At this point, it was 3 months after the contract's effective date On 13 November 1984 Smith sent a letter to Brennan at Local 1456, informing him that he was available for work at the A & S Brooklyn store as he had learned that a member of the three remaining painters, Larry Prisco, will retire at the end of the year and asking to be considered for that position should there be an opening Brennan did not reply to Smith, and Prisco did leave before the end of the year but was replaced by Anthony Vitali, who had been referred to A & S by his brother, an employee for an exterminator contractor that regular- ly performed services at the Brooklyn store and who had personal contact with Galtieriabout the matter Prisco had been a plasterer as well as a painter. A & S was seeking someone with both skills. Smith certainly had ex- tensive wall preparing skills, spackling and plastering Although Vitale was hired in early December 1984, ac- cording to A & S, as a regular placement for Prisco, on a tryout basis by Galtieri, he was let go in early Febru- ary 1985 after only 2 months because of a "budget cut." According to John Brennan, he learned that Vitali, who was a member of another local affiliated with DC 9, for 6 Peters Jr 's name does not appear as an A & S employee on weekly payroll reports A & S submitted to the Painters Industry Insurance Fund for August , September, and December after Smith's second layoff as read into the record by counsel for the General Counsel (Tr 521 ) some reason lasted only a month or two, but he was sup- posed to be a steady man. Brennan did not know why he was let go, but he was never replaced According to Galtieri, he called Vitals back for 2 or 3 weeks after his February 1985 layoff and Vitale has since found steady employment elsewhere. The hiring of Vitali is claimed by both Respondents as evidence that they did not maintain an exclusive referral arrangement for painters. Brennan was not contacted or consulted or asked to refer any painter and A & S em- ployed Vitali on its own Galtieri testified that he was not personally aware of any requirement to go through the Union on hires Placing this hiring in perspective, it is the only occa- sion that either Respondent brought forward a direct hiring of a painter by A & S without having sought a referral from Brennan of Local 1456, Respondent Union briefs claim of two such instances to the contrary not- withstanding It also took place after Smith filed his charges and the Region had issued its consolidated com- plaint against both Respondents alleging, inter alia, the maintenance of an exclusive referral arrangement for painters Since Vitah's initial hiring, other painters have been hired by A & S without any claim by either Re- spondent that referral was not made by Local 1456 The General Counsel does not allege the hiring of Vitale by A & S as an unlawful incident of the exclusive referral practice, claimed to favor Local 1456 members over nonmembers, and does not seek any remedy of rein- statement or backpay for the period of 2 months covered by Vitali's employment. The General Counsel notes that subsequent to Vitali's layoff A & S did not seek Smith's referral and Local 1456 did not refer Smith on any occa- sion that A & S sought painters for referral and urges that this evidence continues the pattern of favoring mem- bers of Local 1456 in such employment first manifested in Peters' selection, over Smith for referral in March 1984. Smith also sent a certified letter to Brennan, received by the Local on 4 February 1985, noting his understand- ing that there is a new contract between Local 1456 and Abraham and Straus store, and since he has a grievance with both, he requests a copy of the new or most recent contract which he wants his attorney to read Brennan neither replied nor forwarded Smith the successor con- tract The bylaws of Local 1456, revised in 1979 (described on its cover as Maintenance Painters Local Union 1456), and in effect at all times material to this proceeding, re- quires in article I as qualifications for membership (A) skill and experience to perform the services of painting, decorating, and/or paper hanging and (B) permanent em- ployment as maintenance mechanic directed by property owner-manager, lessee, or contractor with a maintenance contract for the property. In spite of these requirements, Donald Peters Jr had become a member of Local 1456 with little experience and limited skills at the age of 20, and was referred to a job at A & S to the Queens store from 29 December 1983 to 2 January 1984, before his re- ferral to the A & S job at the Brooklyn store in March 1984, when Smith first saw him on a visit to the store. In 958 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD fact, the Local 1456 membership application does not ask for previous experience and nature of work and skills in the painting trade The same bylaws also contain trade rules in article XIII, which are germane to the issues in this case. Sec- tion 1 reads, "Any member of the Brotherhood in the ju- risdiction of District Council #9, who is employed on an all-year-round basis as a maintenance man, shall transfer his membership into this Local Union." Section 2 pro- vides that, "Any member in good standing . . who as a result of expiration of the maintenance agreement under which he has been working, becomes unemployed, shall be eligible to preferential employment in any mainte- nance shop in which such vacancy may occur." Section 3 reads, "Any member who becomes unemployed shall notify the Business Manager of same, it shall be the duty of the Business Manager to keep a record of unemployed members. It shall be the duty of our Business Manager to see to it, that our unemployed members receive preferen- tial employment in maintenance shops " Section 5 pro- vides, "In the absence of unemployed members of this Local Union, all vacancies for permanent maintenance men shall be filled by the Business Manager of this Local Union with members of District Council #9." Another set of bylaws of Local 1456, revised 1975, and the only set currently on file at the U S. Department of Labor, provides in section 6 that, "All journeymen re- quired by any maintenance employer for temporary peri- ods of employment, shall be furnished by the Secretary- Treasurer of District Council #9 at the rate of wages and under the working conditions provided for by Dis- trict Council #9 and shall be subject to the supervision of District Council #9." There is strong evidence that Business Manager Bren- nan followed sections 2, 3, 5, and 6 (although not part of the 1979 revised bylaws) in his handling of A & S's re- quest for a painter for its Brooklyn store in early March 1984 By letter dated 19 March 1984, typed on Local 1456 stationary, John Brennan wrote Beatrice Kornbluh, counsel for the General Counsel in this proceeding and then the Regional representative investigating Smith's unfair labor practice charge. Brennan first notes his en- closure of the 1981-1984 collective-bargaining agreement with A & S and refers to article XVI, Termination of Employment, the relevant portions of which have been previously described and quoted, supra Next, Brennan states, "As I told you, Mr . Joseph Smith was sent to A & S on April 11, 1983, as a temporary painter and was employed until January 28, 1984 When he was sent, Local Union 1456 at that time didn't have any members unemployed so I went to the Painters D.C. 9 for one of thier [sic] members to fill this temporary position . They recommended Mr. Joseph Smith to me and I sent him to A & S." Brennan continues, "On March 8, 1984, A & S called me for a temporary painter for a week or so Local Union 1456 had some unemployed members so I sent Mr. Donald Peters, Jr. to A & S for this temporary painter's position on March 12, 1984." In the next paragraph Brennan writes, "Mr. Smith, not being registered with our local union we did not know what his employment status was We did what we normally do, we sent one of our registered unem- ployed members when I received a request for a temporary painter " Brennan next denies any inten- tion to deprive Smith of a job and notes A & S did not request him when they called for a painter Brennan was called as an adverse witness by the Gen- eral Counsel under Rule 611 (c) of the Federal Rules of Evidence He explained that Donald Peters Jr. had been a Local 1456 member maybe a year or so by March 1984 when he was referred to the A & S Brooklyn store after Smith's layoff. Prior to that referral he had sent Peters Jr to the A & S Queens store in December 1984. Bren- nan acknowledged that it was always Fred Hungerford, the A & S official, until he died (around September 1985) who called him to get painters to work in the A & S stores. Hungerford never mentioned any one by name. He would say he needed one painter, a temporary painter for maybe a week, maybe 2 weeks. This practice had been going on since A & S and the Union had en- tered their contractual relationship in 1981 The jurisdiction of Local 1456 covers mostly mainte- nance painters. It has exclusive jurisdiction over painters employed by New York City Department stores, either directly or who are employed by contractors with clean- ing or painting contracts for such stores Among such stores with which Local 1456 has collective -bargaining relationships, in addition to A & S, are Macy's, Gimbels, Lord & Taylors, and Sterns. Local 1456 has a contract with Allied Maintenance , which employs painters who work in Saks Fifth Avenue. Among other employers under contract with Local 1456 are Rockefeller Center, Lincoln Center, and its components, New York State Theatre, the Metropolitan Opera House, and the Port Authority of New York. The 200 odd members of Local 1456 include members of Local 1456A who work for various hospitals and such residential apartment complexes as Stuyvesant Town in less-skilled, more of a handyman, function. Brennan also acknowledged that the department store jobs at such stores as A & S and Macy's are very desirable because the painters work all year They also perform strictly painting and decorating functions in pleasant environ- ments But Brennan did not discount the possibility of a layoff. As a rule they work steady but there is no guar- antee. These jobs are so desirable that DC 9 , members continually ask him about membership in Local 1456. Brennan generally discourages such requests because as he explains to the applicant, membership does not insure a steady job Such jobs come up very infrequently and the Local has only a handful of members who work as floaters who are available at any one time for referral. Thus, Brennan has often times been obliged to contact DC 9 to supply painters to employers who have contact- ed him for referrals. This is the manner in which Smith was initially placed at A & S in April 1983 The office of Local 1456 is located at 211 East 43d Street, but it is typed onto Local stationary that other- wise bears the name of the Local , its international affili- ation, and many of its officers in print. It is located in the FEDERATED DEPARTMENT STORES 959 offices of the Building and Construction Trades Council of New York As noted , Brennan is chairman of its main- tenance division. There is no room number on the sta- tionary and the building has no directory reference for the Local or any painters organization . Smith was not acquainted with the location of Brennan's office, but was able to contact him by phone and meet him at the Local's membership meeting held at the DC 9 headquar- ters. With respect to Local painter referrals, Brennan does not keep any referral records As he stated, he keeps them, "[I]n my mind only, because I don't have that many men out of work, my men worked steady all the time, so I don't have no regis-no list or nothing of that, no." (Tr. 101 ) When Brennan uses the phrase "regis- tered with the Local," he means men who call up and let him know whenever they are available. While denying under questioning by union counsel that Smith ever "registered " with him, Brennan testified that during one of the telephone calls they had during February 1984, before he referred Peters to A & S in early March, Smith told him "I need work " (Tr 558) Referrals are handled in an informal way from information he carries in his head. As he has no unemployed men, maybe three are what he calls "floaters," it is not hard to know what he is doing Brennan admitted his references to "men" were to Local 1456 members. As a consequence, the Local has no registration lists, no employer requisition forms and thus there is no way an objective review can be made of the operation of Local 1456's referral system or a determination can be made by reference to written documents of the criteria governing referrals 7 This ab- sence of documentations becomes critical in connection with any instances in which Local 1456 acts as the sole or exclusive referral (for any prescribed length of time) of painters under either a written agreement or practice or understanding with any employer with whom it has a collective-bargaining relationship. Neither does it keep any listing of nonmembers , as Brennan readily conceded Brennan, however, has a way of determining the mem- bers and nonmembers employed in the shops it repre- sents from the records it does maintain of the 2-percent monthly working assessment paid by all those working under its jurisdiction and the dues paid monthly only by its members. While Brennan claimed he could not know whether Hungerford spoke to any of the others when he needed a painter, while undergoing his 611(c) examination and, indeed, his examination by union counsel , he did not claim that A & S procured painters from any source other than Local 1456 until the one instance when Gal- tieri, during the pendency of this proceeding, but well before opening of hearing, hired a brother of an A & S contractor on a trial basis . On one occasion, Brennan ap- peared to contradict his claim that Hungerford may have gotten painters elsewhere . Immediately after suggesting Brennan, at one point , did assert that in choosing men available for referrals, he looks at how much work a particular man had for the last 6 months If one worked steady for 5 of the last 6 months and the other only had I or 2 weeks' work , the one unemployed the longest would be sent first At another point Brennan indicated special skill sought by the employer would also be a factor on referral that A & S may have put painters on without calling him, Brennan was asked by the General Counsel whether someone from A & S always called him when they needed a painter Brennan's answer was , "They-they did call me when they were looking for painters." (Tr 111 ) Whether Local 1456 maintains any exclusive referral agreements with employers apart from A & S was a matter on which a serious conflict arose between Bren- nan's testimonial assertions and the contracts later pro- duced by the Union and introduced into evidence by the General Counsel Under examination by union counsel , Brennan testified that Local 1456 had some contracts with various em- ployers, that he has been business manager for 14 years, and he, alone, negotiates and enforces these agreements and is familiar with them. Brennan then categorically denied that any of those contracts contain any require- ment that any of the employers are obligated to call him in the event that they need a painter. Brennan added, "No contract has a provision where I'm exclusive [sic] provided with the workers " Neither, in Brennan's words, is there any contract that says that they should call him first or that requires them to call him on any basis. (Tr. 541.) The General Counsel objected to this line of inquiry because the Union had not yet complied with her outstanding subpoena seeking all Local 1456 agreements and because the contracts themselves consti- tute the best evidence of their terms. I overruled the ob- jection, but ordered the Union to make copies of the contracts available for review by the General Counsel prior to the close of hearing and the Union agreed to do so. Brennan also testified that he has no unwritten or in- formal exclusive referral agreements with employers Macy's hired a man in October and informed him after he was on the payroll. Two years ago CBS informed him they had another painter on the payroll, and La- Guardia Hospital informed him the same thing recently Eventually, the General Counsel had Brennan identify, and included in the record, 11 agreements between Local 1456 and various employers, each of which, contrary to Brennan's emphatic denial, contain exclusive hiring hall provisions. The language in these agreements runs the gamut from providing that the Union shall be given the first opportunity to refer applicants (Macy's) and the em- ployer will exert its best efforts to notify the Union of the existence of vacancy (Richmond Memorial Hospital) through providing that the Union shall have 48 hours to make referrals of applicants (B. Geitz Inc, now Sterns) or 1 week to supply qualified painters (East River Hous- ing Corp, and Amalgamated Housing Corp) to specify that the Union shall be the primary (Lincoln Center, Metropolitan Opera Association, Inc.) or sole and exclu- sive (Allied New York for Saks Fifth Avenue, and Lord & Taylor) source of employment or shall provide as many competent painters as the employer may require for its operations, on either a temporary or a permanent basis (CBS). One agreement even requires all temporary painters to be requested through the Union (Gimbel Brothers, Inc ). 960 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD When confronted with these agreements, Brennan was forced to acknowledge these agreements in differing forms, obligating these employers to seek referrals from Local 1456 when hiring painters. Brennan responded that in practice a number of these employers hire directly and that because at times he has no out-of-work men he is not really worrying about it, he does not have this many men that are looking for work so he is not that sensitive about it In one instance, Donald Peters Jr. was hired by Lincoln Center at a time his father was employed by the Metropolitan Opera Association at the same complex, in effect, across the street Brennan was informed when the hiring took place by the only painter employed up to that time, but he was not asked to refer a painter, did not do so and did not object to the employer. Peters Jr then joined the Union at Brennan's insistence although Peters probably did not have a regular position. Under examination by union counsel, Brennan ex- plained that with respect to 5 of the 11 employers with whom Local 1456 has an exclusive referral agreement, these employers have hired one or more painters direct- ly, generally calling him afterwards, and the Local does not supply painters to a sixth. Sterns and the Metropoli- tan Opera each hired their single painter through the Union. Lord & Taylor called the Union for one man but hired a "display" man directly and Saks Fifth Avenue (Allied New York Services) usually asks him for a paint- er but also recalled a regular painter directly from a 6- month layoff under a contractual provision providing for accumulation of seniority on recall within 1 year of layoff. Brennan did not testify about the parties' practice at Gimbel Brothers His failure to deny that the contrac- tual arrangement regarding referral of temporary paint- ers is followed at Gimbel permits the inference to be drawn that the provision is effective Because Brennan's firm denial that he has any contrac- tual arrangement binding employers to seek painters through his Local has been so convincingly contradicted, his credibility as a witness has been undermined. A wit- ness who so easily and steadfastly denies under oath what he knows or should know to be the truth as objec- tively determined provides no basis for any confidence in the veracity of statements on related and, indeed, even unrelated, relevant matters on which his credibility has been placed in issue. Thus, even Brennan's claim that, in practice, a number of the employer signatories to exclu- sive referral agreements with his Local breach them from time to time is subject to serious doubt. It is far more likely that the employers, bound by precise em- ployment procurement language, generally honor their commitment to contact Brennan, who, oftentimes, be- cause of the absence of out-of-work members, is unable to supply their requirements promptly even by seeking referrals from DC 9. It is also apparent that very few jobs come open at these employers and that, in certain instances, Brennan has permitted direct hiring, particular- ly of temporary painters who, in any event, are unlikely to remain employed beyond a short period of time and, thus, are unlikely to seek Local 1456 membership as Smith did in this case. It is also to be noted that with respect to at least four employer signatories to exclusive referral contracts Brennan acknowledges that the prac- tice is consistent with the contract requirements. Even as to those employers who do not uniformly follow the contract conditions, the Board has the right to require that the Union comply with the Act's requirement of neutrality in referral without favoring members over nonmembers, on those occasions when the Union is ac- corded its contractual right of notice and opportunity to refer qualified applicants for employment. Brennan also proved to be evasive; for example, on the question of the employment status of Peters Jr. when he became a member of Local 1456 while working at Lin- coln Center. (Tr. 610.) His responses were at times calcu- lated to conform with a defense in this case that Smith never registered with him for referrals when, in fact, no rules are provided to any employee in a Local 1456 shop, either in writing or orally, which would acquaint him with the manner of operation of the Local's referral system, and Brennan admitted, in fact, that Smith asked him for work, and indeed Brennan referred him to a West 57th Street building employer On the whole, Bren- nan lacked candor, was inconsistent in his responses, contradicted, without explanation, clear documentary evidence, and is not credited where his testimony con- flicts with Smith's on their key interchanges, including that regarding Brennan's failure to refer him to A & S in March 1984 It is clear that Brennan's letter to the Region of 19 March 1986 spells out consistent with the Local's bylaws a systematic practice of favoring mem- bers on referral to jobs at A & S and elsewhere. Only members are included in Brennan's personal mental list of men available for referral, and even out-of- work painters from DC 9, like Smith, are left out in the cold when it comes to procuring the favored department store and cultural institution jobs for which union sup- port is decisive. Brennan claimed to have checked on Smith's employ- ment status at A & S in September 1983 after Smith sought clarification of his "temporary" category. Smith denied that Brennan came to the job, and no one else, including steward Fielke, who did not testify or Galtieri, who did, corroborated Brennan's story and it is rejected. Likewise, Brennan's denial of the use of the phrase "guest worker" and that he put down DC 9 members when employed on Local 1456 contract jobs in his con- versation with Smith, is also rejected The tone and sub- stance of his remarks, as attributed to him by Smith, are consistent with Brennan's manner on the witness stand and the artless but devastating admissions Brennan made in his recital to the Region on 19 March It is also appar- ent that Brennan purposely failed to accord Smith the rights granted members of being able to advise him of their availability for work and receive consideration on referrals as they arise. Brennan's claim that Smith sought only a permanent, steady job is rejected in light of both Smith's and even Brennan's recital of their conversations. While Smith wanted a return to A & S he was open to any job under Local 1456's jurisdiction. In fact, it is evident that the overwhelming number of painter members of Local 1456 end up in a regular main- tenance position with regular hours, and Brennan's con- duct vis a vis Smith was designed to frustrate Smith's in- FEDERATED DEPARTMENT STORES 961 terest in such work and to place his members' interests over his obligation to treat all applicants who sought re- ferral in a fair and nondiscriminatory manner In contrast to Brennan's calculating and evasive manner on the witness stand, Smith was a highly credi- ble witness, firm in manner, in control of his emotions even when pressed on cross-examination, and responsive and direct in his recitals. He readily admitted he never requested Brennan to "register" him for employment, but firmly reminded opposing counsel that he had made Brennan aware of his availability for work Even a short- coming in his failure to recite Brennan's reference to his temporary nonsemority status in their 9 March conversa- tion was rectified on cross-examination Respondent A & S counsel's attempt to impeach Smith by a sup- posed failure of his pretrial affidavit to contain any refer- ence to the statement he attributed to Galtieri at trial that it was the Union that was responsible for calling him back to the job, reiterated at 17-18 of its brief, is firmly rejected As the trial record makes clear, Smith's affida- vit does make reference to Galtieri's placing responsibil- ity on the Local in their conversation on 9 March, at paragraph 9 on page 4 of the affidavit Three other witnesses shed light on the nature of the referral arrangement between A & S and Local 1456, the employer's relinquishment of responsibility to the Union for its supply of competent painter employees, and the problems created for a non-Local 1456 member by such an arrangement. John Galtieri, who was Smith's ultimate supervisor, testified for the General Counsel that Fred Hungerford did all the calling to Local 1456 for painters. He agreed Smith was a full fledged painter with the necessary jour- neyman skills. When Galtieri requested a carpenter or painter, Hungerford would call the Local, and, in con- formity with his pretrial affidavit, testified that he never gave Hungerford a name of an employee he would like to get back from the Union after the layoff of that em- ployee. The reason is that that is not the way it works- "The union follows their own referral system in referral and we do not interfere." This statement closely parallels Smith's attributation to Galtieri of the comment on 9 March that the Union was responsible for whether he was to be recalled to the job after his layoff. Later, when called as a witness by A & S, Galtieri denied that he made any such statement to Smith He also denied telling Smith that if it was up to him he would have hired Smith back Galtieri also could not recall telling Smith after 6 months of employment that he had first crack at replacing one of the three regular painters by seniority or that seniority applied to him be- cause of the practice of recalling carpenters under the same contract and denied ever telling him these things at a later time. Galtieri did not deny telling Smith after his layoff his work had been exemplary. In denying that he told Smith the Union was responsible for his predica- ment, Galtieri made a significant pause before answering and was particularly reticent in responding in a nonchar- acteristically soft voice I do not credit these denials, and conclude that Galtieri's affidavit, made part of the record, more clearly represents his understanding of the A & S-Local 1456 relationship at the time Smith worked there and sought recall to his fob I also find in- credible Galtieri's attempt on the witness stand to por- tray himself as lacking knowledge of any practice by A & S to uniformly seek painters from the Union, when by virtue of his position he had to be intimately involved in the practice even though he was not the employer's contact with the Local, and his affidavit belies that stance . For this reason, as well as the credible contrary testimony of Smith , I reject the attempt by Galtieri to es- tablish that Smith was hired for a particular project only involving the installation of a new telephone system and then was released when he had finished helping to re- paint the store to its pre-Christmas colors Galtieri was also disingenous when he admitted telling' Smith on his layoff if anything comes up he would call him, but denying he meant it Galtieri noted that Robert Wieler also called the Union for painters in Hungerford's absence, but insisted, although omitted from his affidavit because he was not questioned on the matter, that he had authority to hire a worker directly, if, for example, a tradesman walked into the store seeking work and try him out for 30 days. Vice President for Engineering Wieler testified that in negotiating the 1981 agreement , at the meetings he at- tended as part of the A & S team , there was discussion between the parties regarding article XVI, Termination of Employment The nature of the discussion concerned whether prior service of the Rheinstein permanent em- ployees who had now become A & S employees on as- signment of the 1978-1981 collective-bargaining agree- ment from Rhemstem to A & S would count towards seniority for determining benefits and rights in the event of a layoff Also, A & S was seeking clarification from the Union whether employees it added to its staff from time to time, who were not considered permanent, would have the same rights on termination of employ- ment The clarification resulted in agreement by the Union that temporary, nonpermanent employees would not accumulate seniority for purpose of recall Wieler said that in the discussions the category of temporary employee was understood to mean those people that were hired for a specific job for a short duration and not added to the permanent staff. When asked whether this understanding was memori- alized in the agreement , Wieler was compelled to admit that the agreement made no reference to a temporary employee category in article XVI, supra, but that the language "layoffs occasioned by reduction of forces" was based on A & S's interpretation and practice refer- ring to the reduction of the base permanent staff in the store As against Wieler's interpretation of the meaning of ar- ticle XVI is the nagging doubt that- arises from noting that it would be highly unlikely for an employer such as A & S to fail to tie down with appropriate language a matter significant enough for it to seek to clarify in nego- tiations and as to which it was prepared to negotiate if a difference of opinion arose. The phrase "reduction of forces" clearly encompasses layoff for budgetary reasons. And it was this reason on which A & S grounded its layoff of Smith . But the issue whether seniority for pur- 962 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD poses of recall was limited, by agreement, to only the core or permanent staff of painters is of less moment than the obvious question whether Smith, by virtue of his 9 months of employment, working on every job and along with the three regular painters, had thereby become a regular employee entitled to the benefits of ar- ticle XVI Wieler used the phrase "short duration" to de- scribe a temporary employee. Brennan had referred to the definition of a "regular employee" in article I, supra, which, inter alia, refers to continuous employment of 1 month, while excluding contingent, casual, temporary or part-time employees. Galtieri had informed Smith that he was in line for succeeding one of the three core painters on retirement and that he had seniority over the two painters hired after him for recall. Both Fielke and Gal- tieri, in affirming that Smith had seniority, referred to the practice on recall of laid-off carpenters under the same contract, which Smith had seen confirmed in prac- tice Perhaps Galtieri was close to the mark when he told Smith, that as far as he knew, nobody who works for the painters is guaranteed a permanent job Of even greater moment is the fact that just as Smith, a so-called temporary painter was let go after 9 months because of budgetary reasons, so was Vitali, a permanent painter, separated after 2 months for the same reason. Further- more, the parties dealt with the matter of temporary hiring in their successor 1984-1987 agreement in such a way as to lend weight to the view that Smith was not a temporary employee when he was cut in January 1985. In that agreement, a new article III(c) was added, enti- tled "Temporary Hiring," providing- Both the Union and prospective employee shall be advised of temporary hiring status. A person hired for less than 30 days shall be paid outside construction rates and contributions will be made to both Pension and Welfare funds as details [sic] in construction agreement Persons hired for longer than 30 days will be paid at the prevailing maintenance rate of pay and benefits provided for in this contract. Thus, when the opportunity arose to define "tempo- rary" employees under the contract in 1984, the only ad- dition regarding temporary workers was to note that after 30 days they received maintenance painter contract terms and benefits Smith testified without contradiction that he did not receive the full contract benefit until employed 125 working days or after roughly 6-1/2 months. Further, contrary to a claim in Respondent Local 1456's brief, shop steward Fielke expressed surprise to Smith that he had not been recalled in March 1984, when Smith visited the job at that time The credited testimony of Smith, relating Fielke's and Galtieri's statements as to crediting of seniority, his achieving full benefits after 125 days, the nature of the work he performed, including his last assignment not re- lated to restoring past Christmas colors, and the cavalier "budgetary layoff-' of Vetali, a supposed new core em- ployee who was hired on a trial basis after Smith had proven his skills, reliability, and interest (to A & S orally and in writing to Brennan) in remaining on staff and succeeding Prisco when he left, coupled with the evidence of the practice between the parties on referral of permitting the Union to select the person referred even where past employment service would dictate the selection of a particular employee for recall, convince me that Smith had contract rights to recall or hire, which were ignored by Local 1456 in March 1984, and after Vitali's second layoff a year later. From everything in the record, it appears that the device of excluding so-called temporary painters of even 6 or more months continuous service from recall rights, permitted the Union to exercise absolute control on re- ferral and to select and favor union members if available at the time A & S requested a painter, and also thereby permitted A & S to avoid the possibility of crossing Local 1456 on such occasions and to maintain the great- est flexibility in staffing, even at the expense of contract claims. Wieler's testimony on the 1981 negotiations was sub- stantially self-serving, surprisingly vague, and was not corroborated by Brennan or any other union official, al- though Brennan did rely in part on Smith's temporary status in rejecting his claim of contract breach on their telephone conversation on 9 March 1984 Of far greater significance on that occasion was Brennan's characteriza- tion of Smith as a "guest worker," of second class status, who would sometimes receive a referral to A & S or other Local 1456 employers, only when no members were available (in accordance with the bylaws) and whose status would remain problematic and tentative until defined as "permanent" by the employer In prac- tice, although section 6 of the 1975 bylaws had been eliminated by the 1979 revision, it still remained on file at the Department of Labor, and, along with sections 2, 3, and 5, guided Brennan in his ad hoc operation of the referral system. If a painter was referred from DC 9, he would not in Brennan's eyes enjoy a preferred status on selection for jobs, until he became a member, and his transferred membership was discouraged until he some- how succeeded a core painter on the job. So long as he retained his DC 9 membership, any separation from em- ployment left him vulnerable to remaining second class on referrals and in not achieving a permanent position as maintenance painter. As I have previously inferred, A & S's direct selec- tion of Vitale, following issuance of complaint and Smith's written request to Brennan for consideration on replacing Prisco, is entitled to no weight in Respondent's efforts to undermine the exclusive nature of their referral arrangement. In this connection, Wieler's reference to two occasions where painters were brought on staff and not recommended or referred by the Union is so vague and nonspecific as to be entitled no weight. It is abun- dantly clear that if the employer had hired directly, it would have produced records, even names, to support its claim and nothing was forthcoming aside from the Vetali incident, the timing and circumstances surrounding, which hardly constitute a breach of the exclusive referral understanding. Wieler acknowledged that in Hunger- FEDERATED DEPARTMENT STORES ford's absence he called Brennan "on several occasions" for painters, later defining the number as 4 to 6 times. Wieler also acknowledged that it was Hungerford who dealt with the union contract on a day-to-day basis, and was responsible for its day-to-day administration Hun- gerford's affidavit, admitted into evidence under Federal Rule of Evidence 804, Sections (a)(4) and (b)(5), was given in the presence of A & S Vice President of Per- sonnel Robert A Brown on 16 April 1984, some 17 months prior to his death In it, Hungerford stated that there is no arrangement to keep a minimum number of core employees and that in fact at one time the number was greater He could not say he recalled making the call that resulted in Smith's coming to A & S He must have been the one who called, however, because he is the only one who calls and Hungerford must have called John Brennan because he is the only one he calls Hungerford stated that Smith was let go at, he be- lieved, Galtieri's decision Hungerford generally gave a courtesy call to the union involved to say the man is laid off and will he back at the hall, but he did not recall if he did so on this occasion As to the hiring of the next painter (on 9 March 1984), A & S was sponsoring a Brooklyn Academy of Music event in the store, Operations Director Fay told him the store needed a painter and Hungerford called Brennan, not asking for anyone by name and he never asks for anyone by name, advising Brennan he 'needed a painter for 2 or 3 weeks The painter came 9 March and left 28 March 1984 (He was Donald Peters Jr ) Hungerford confirmed that A & S does not give pref- erence in recall to craftsmen who have worked there before He therefore does not even ask, for example, Galtieri for someone who was let go for lack of work If a core employee left he would call for an employee, and A & S would keep letting people go before the 30 days are up in the contract until they get a suitable replace- ment. The foregoing corroborates and confirms the exclusive arrangement for hiring painters through Local 1456 and the practice under that arrangement whereby Brennan makes the selection and A & S never seeks a painter by name, even presumably if that painter has been laid off as a regular or core painter. Hungerford concluded that Smith was a temporary employee called to do specific work and therefore did not accrue any seniority rights or other rights under the contract except he did get the wages and all other bene- fits of the contract In his affidavit, Hungerford does not dispute Smith that he did not receive full contract cover- age until having worked 125 days. Further, Hungerford did not supervise and does not show familiarity with the work Smith performed Therefore, his characterization of Smith's status is less reliable than that given by direct Supervisor Galtieri in Smith's recital of their conversa- tions, particularly those relating to Smith's accrual of se- niority and Galtieri's desire to recall him as a superior employee, but that someone else called the Union and the Union exercises its own system of referral with which A & S does not interfere Conclusions 963 The credited evidence is convincing that A & S and Local 1456 have maintained and continue to maintain, in spite of the Vitah hiring, an exclusive referral arrange- ment whereby A & S calls Local 1456 for a painter and Local 1456, in the full, unilateral, and unregulated discre- tion and determination of John Brennan, makes the selec- tion of a painter for referral who is then uniformly hired. This arrangement although not set forth in the collec- tive-bargaining agreement is as binding and regular as if stated in writing by virtue of the practice and under- standing existing between the parties since 1981. As I have noted, Vitah's hiring was patently arranged at a time when the parties were on notice they faced prosecution for the alleged discriminatory denial of refer- ral and employment in this case, and Smith had request- ed the referral in writing Vitah's hiring was done blind- ly for a trial period without knowledge of his skills and competency, and he was retained only 2 months Thus, his direct employment is insufficient to overcome the concrete and substantial evidence of the practice as evi- denced in all other hirings of painters, both before and since Vitali's. Iron Workers Local 577, 199 NLRB 37 (1972), cited by A & S in its brief for the contrary prop- osition, is hardly persuasive since there, contrary to the instant facts, the employer contacted previously laid-off employees directly, first, before going to the union. The same could be said for Laborers Local 190 (Basic Con- struction Co), 167 NLRB 561 (1967), also cited by A & S, in which the record contained direct evidence of persons obtaining work at the jobsite without being re- ferred by the union, and the administrative law judge credited the hiring foreman's testimony that he could not have refused the charging party employment. It is also clear that A & S failed to exercise any review or control over the manner of the Local's exer- cise of its authority, thereby forfeiting any claim to be relieved of joint and several liability for the discriminato- ry consequences of the Local's practice of preferring Local members on referrals, and thereby violating Sec- tion 8(a)(3) and (1) of the Act There is no warrant for finding, as alleged in the complaint, that A & S also vio- lated Section 8(a)(2) of the Act by this conduct. The General Counsel cites no case in support of such a find- ing. My research failed to disclose any such finding against an employer in such circumstances except where the employer entered in an agreement covering yet-to- be-hired employees in a unit and could not show an un- coerced union majority, surely not facts present here Accordingly, I will recommend dismissal of this allega- tion. The evidence is strong that not only has A & S per- mitted Local 1456 to exercise its referring responsibility without written records, objective criteria, or nondis- criminatory standards, but it has even waived its right to select or even suggest painters for referral who have sat- isfied its own performance standards after a sustained, continuous period of employment, such as Smith. The exclusive control over the employment function, which Local 1456, and through the Local, Brennan exercised, meant that A & S had assigned this function to Local 964 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1456 and thus is as fully responsible as the Local for the manner in which the Local's business manager adminis- tered that function in accordance with written bylaws that specifically directed his preference for members, contrary to the dictates and requirements of the Act. See Q. Y.L. Construction, 260 NLRB 1096 (1982). A & S was surely aware that it had ceded control of hiring to the Union and permitted Brennan to select painters in ac- cordance with is own nondisclosed order of preference, thereby conditioning hire on union clearance and neces- sarily resulting in enhancing the Local's status unlawfully under the Act. See Bricklayers Local 18 (Ferguson Tile & Marble Co.), 151 NLRB 160 (1965). However, by virtue of the fact that Brennan, on behalf of Local 1456, operated the referral system in his head, with no written records or referral registers, it would have been highly unlikely, if not impossible, for A & S to have discovered the discriminatory practices had it at- tempted to investigate the Union's operation of the refer- ral system Accordingly, and as urged by A & S coun- sel, I will recommend that the Union be held primarily and A & S secondarily liable for any backpay due Smith because of discriminatory referrals made to A & S since 9 March 1984. See Frank Mascah Construction, 251 NLRB 219, 222 (1980), Q. V.L. Construction, supra The Union's operation of the referral system is not only unlawful under its oral arrangement with A & S, see Plumbers Local 624 (Power Piping Co.), 211 NLRB 942 (1974), by virtue of the evidence relating to Smith's experience, the Local's bylaws and Brennan's written ex- planation of his method of operation, an inference may reasonably be drawn that the Union operated in a similar illegal manner with other employers with whom it main- tains a contractual exclusive arrangement. See Carpenters District Council of Denver (Hensel Phelps Construction), 222 NLRB 551 (1976). However, contrary to the Gener- al Counsel's remedial request that all affected employees be compensated, since there is no evidence in the record showing a general pattern of discrimination by the Union in the operation of the referral system or that any em- ployee other than Smith was the victim of the Union's discriminatory referrals, while I will recommend a cease- and-desist order against maintaining a discriminatory ex- clusive referral agreement or arrangement with employ- ers other than A & S, I will not find the Union or A & S liable for backpay shown to be due any employ- ees other than Smith See Frank Mascah Construction, supra. Not only has Local 1456 violated Sections 8(b)(2) and 8(b)(1)(A) of the Act in its system of granting prefer- ences to Local members over nonmembers on referrals to employers under exclusive agreement with it, but its failure to maintain written records of referrals, or inform applicants for jobs, such as Smith, of the exclusive nature of its referral arrangement or the ground rules or crite- ria, which govern referrals, constitutes a further aspect of its illegal conduct. See Boilermakers (Western Pennsyl- vania Contractors), 253 NLRB 747 (1980), see also Paint- ers Local 1178 (Raland Painting), 265 NLRB 1341 (1982). The General Counsel also contends that Local 1456 violated Section 8(b)(2) even if no exclusive hiring hall is found. I do not agree Contrary to Carpenters Local 1016 (Bertram Construction), 272 NLRB 539 (1984), the record here lacks affirmative evidence that the Union caused A & S not to rehire Smith. Absent the exclusive ar- rangement, A & S could have contacted Smith directly or made a specific request to the Union to send him. There is no evidence of any attempt to do so, which in- dicates that although A & S believed Smith was a quali- fied painter, it was indifferent as to who was sent by the Union. There is also no evidence of union disparagement of Smith to A & S to pressure A & S not to employ him directly A & S merely played a passive role, per- mitting Local 1456 under the exclusive referral arrange- ment to clear all painter-employees before hire. I conclude that Local 1456, independently, violated a duty of fair representation owed Smith, under Section 8(b)(1) (A) of the Act, apart from its tainted operation of the exclusive hiring hall. See Plumbers Local 13 (Mechan- ical Contractors Assn. of Rochester), 212 NLRB 477 (1974) Local 1456 owes a duty of fair representation to those who seek to use its services The facts on which I have relied to conclude that the Union has violated Sec- tion 8(b)(2) and (1)(A) in its operations of the exclusive referral system and in its failure and refusal to refer Smith to A & S or other department stores or other em- ployers under exclusive referral agreement with it to employ maintenance painters referred by it are the same facts that justify the conclusion that the Union has failed to represent Smith fairly in its exclusive referral oper- ation. Particularly is this so where, here, Smith's pay- ment of the 2-percent working assessment when he worked did not guarantee him fair treatment when he was unemployed. This theory of violation was advanced by the General Counsel early in the first day of hearing, as encompassed by the outstanding complaint (Tr. 44) At my suggestion that it be directly alleged in the consolidated complaint, counsel for the General Counsel respectfully demurred, but agreed to consider the matter No amendment was forthcoming Nonetheless, I requested the parties to brief the issue whether the Respondents had committed viola- tions of the Act in the absence of an exclusive referral arrangement (Tr. 47-48, 1004, and 1009), thereby implic- itly indicating that the matter of the Union's duty of fair representation had been raised and presented on the record The General Counsel argues the violation in her brief Counsel for Respondent Union takes strong excep- tion to the continued raising of this issue, since on the record, he took the position that unless amendment was made, the matter was not part of the General Counsel's case and he would not argue or brief it He also claims that the record as it stands is not adequate for the pur- pose of litigating the issue Respondent Union's procedural rights have not been violated. It was on notice that the Government claimed it had violated Smith's rights to fair representation. My comments were in the nature of a suggestion only, did not constitute a direction that absent an amendment no violation could be found and the later request for brief- ing of the general issue of union liability absent an exclu- sive hiring hall made that clear Thus, Belcher Towing Co., 265 NLRB 1258 (1982), cited by Respondent Union FEDERATED DEPARTMENT STORES 965 in its response to the General Counsel's brief, is inappo- site. Furthermore, unlike NLRB v. Homemaker Shops, 724 F.2d 535 (6th Cir 1984), the General Counsel assert- ed here that a violation for failure to represent Smith fairly would be sought, thereby placing Respondent Union on notice that it would be litigated and a remedy would be sought I conclude that Respondent Union, on notice, had a meaningful opportunity to litigate the issue and having chosen without a reasonable basis not to brief or argue the matter, although invited to do so, it takes the risk of a finding adverse to it See NLRB v. Blake Construction Co, 663 F 2d 272 (D C. Cir 1981). Con- trary to the Union's final claim, the record requires no additional facts, and is more than an adequate predicate on which to base a conclusion on this issue. As the theory is encompassed in the catchall provision of the 8(b)(1)(A) violation alleged in paragraph 15 of the consolidated complaint, as the Respondent Union was made aware Brennan's conduct in violation of the duty was an issue in the case, and as no evidence not already adduced was necessary to its resolution, I conclude that the issue was presented and I make the finding with re- spect to it CONCLUSIONS OF LAW 1. The Respondent Employer, Abraham & Straus, a Division of Federated Department Stores, Inc , is an em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act 2. The Respondent Union, Local 1456, International Brotherhood of Painters and Allied Trades, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3 Respondents, by maintaining an arrangement, under- standing, and practice pursuant to which Respondent Union, as the sole and exclusive source of referrals of painters employed by Respondent Employer, has failed and refused to register nonmembers and referred mem- bers of Respondent Union in preference to employees who are not members of Respondent Union, have there- by violated Section 8(a)(1) and (3) and Section 8(b)(1)(A) and (2), respectively, of the Act. 4 Respondent Union, by being party to collective-bar- gaining agreements with employers other than Respond- ent Employer, pursuant to which it acts as the sole and exclusive source of referral of painter employees to the employers by means of a referral system in which it fails and refuses to register nonmembers and refers its own members in preference to employees who are not its members, has violated Section 8(b)(1)(A) and (2) of the Act. 5. Pursuant to the practice, arrangement, and under- standing described in paragraph 3 above, by the acts and conduct of Respondent Union, in failing and refusing to register Charging Party Joseph Smith for referral as a painter employee, and by failing and refusing to refer Smith for employment with the Respondent Employer, Respondents have violated Section 8(a)(1) and (3) and Section 8(b)(1)(A) and (2), respectively, of the Act 6. By the acts and conduct described in paragraphs 3 and 5 above, Respondent Union has breached the duty of fair representation it owed Charging Party Joseph Smith, and has violated Section 8(b)(1)(A) of the Act 7 By the foregoing acts and conduct, Respondent has not violated Section 8(a)(2) of the Act THE REMEDY Having found that the Respondents have engaged in certain unfair labor practices within the meaning of Sec- tions 8(a)(1) and (3) and 8(b)(1)(A) of the Act, it is rec- ommended that the Respondents be required to cease and desist thereupon and to take certain affirmative ac- tions designed to effectuate the policies of the Act. Having found that the Respondent Union has unlaw- fully refused to register, or refer Joseph Smith for em- ployment by Respondent Employer on and after 9 March 1984, except for the period from August to No- vember 1984, under an exclusive referral arrangement with Respondent Employer, because he was not a member of Respondent Union, the Respondents should be required to cease and desist from discriminating against him. Having found that Respondent Union has operated its referral system in an unlawful manner under exclusive referral agreements with employers other than the Respondent Employer, the Respondent Union should also be required to cease and desist from discriminating against Joseph Smith on referrals to these other employ- ers, as well as all other nonmember applicants similarly situated. Having found that Respondent Union breached the duty it owed Joseph Smith to fairly represent him, Respondent Union should be required to fulfill its duty to represent him, equally, in the maintenance and oper- ation of its referral system with all employers, whether under exclusive referral arrangement, practice, or agree- ment with it. Having found that the Respondent Employer violated Section 8(a)(1) and (3) of the Act by permitting the Re- spondent Union to select applicants for referral on and after 9 March 1984 at which time Joseph Smith, who had accumulated 9 months continuous employment and should have been treated as a regular employee with se- niority rights on recall from layoff, was passed over for referral by Respondent Union because of his nonunion status, Respondent Employer should be ordered to offer Smith immediate and full reinstatement to his former po- sition as a regular maintenance painter dismissing, if nec- essary, any person hired after March 1984 for that posi- tion, or if his job no longer exits, to a substantially equiv- alent position, without prejudice to his seniority or other rights and privileges. If such a position is not then avail- able, Smith should be placed on a preferential hiring list and his recall on referral should be requested of Re- spondent Union by Respondent Employer at such time as a position as a regular maintenance painter becomes available and Smith should be notified of the request The Respondents, jointly and severally, with the Union primarily and A & S secondarily liable, should be ordered to make whole Joseph Smith for any loss of earnings he may have suffered on and after 9 March 1984, by reason of the Respondents' discrimination 966 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD against him8 excluding therefrom the 2-month period from December 1984 to February 1985 during which Anthony Vitali was employed, less net earnings , with in- terest, to be computed in the manner provided in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp, 231 NLRB 651 (1977) Also see generally Isis Plumbing Co, 138 NLRB 716 (1962) Respondent Union should be ordered to make whole, in the same manner, Joseph Smith, for any loss of earnings he may have suf- fered by reason of the Respondent Union' s discrimination against him in the operation of its exclusive referral system with employees other than Respondent Employer with whom it has an exclusive referral arrangement or agreement. Respondent Union should also be required to notify Respondent Employer in writing, and to furnish Joseph Smith with a copy, that it has no objection to referring him for employment through its exclusive referral system in his rightful order of priority, as a regular employee entitled to seniority on recall to work from layoff pursu- ant to article XVI(c) of the parties' 1984-1987 agreement and to his employment as a painter employee by A & S or any other employer under exclusive referral agree- ment with it, and requests his hire, and advises that he will have full use of the Respondent Union's referral system without discrimination in connection with refer- rals for employment. The Respondent Union, additionally, should be obli- gated to keep and retain for a period of 2 years perma- nent written records of its employment referral system operations and make these records available to the Re- gional Director and to nonmember applicants, on re- quest. The Respondent Union should be required to submit to the Regional Director four quarterly reports concerning the employment of Smith and other non- member applicants ,found to have been similarly situated as provided, infra, in the Order The Respondent Union should be required to keep one referral register for all work applicants, whether or not members, and to place such register, for a period of 2 years, conspicuously within its office for easy access and inspection by all ap- plicants on completion of each day's entries in such reg- ister Respondent Union should be required to notify all painter applicants for employment who use the DC 9 re- ferral hall, a major source of referrals to employers, in- cluding Respondent Employer, by Respondent Union, of its office location and telephone number and of the fact that it maintains referral registers, in which it records daily the number of employer requests for referrals, the s Such payment shall be equal to the amount of wages Smith would have earned as wages, but for the aforesaid discrimination and shall con- tinue for all periods it is determined Smith should have been referred and employed but for the aforesaid discrimination until Respondent Employer offers him reinstatement, and may include periods during which Re- spondent Employer placed Smith on a preferential hiring list because of the unavailability of a regular position as maintenance painter, but has continued to employ temporary painters from time to time The Union's backpay liability shall terminate 5 days after it notifies A & S and Smith that it has no objection to referring him for employment as a regular em- ployee entitled to seniority on recall from layoff and also notifies Smith it has no objection to his employment by any other employer with whom it has an exclusive referral agreement or arrangement See Q V L Construc- tion, Inc, supra number and order of job applications and of job refer- rals, the manner and hours during which applicants may register for referral, and informing of the availability of the referral registers for inspection, by preparing and mailing a notice containing such information for posting by DC 9 at its referral hall This information should also be published in the Respondent Union's newspaper or publication provided for members and submitted to DC 9 for publication in its newspaper or periodic publication provided for members of its affiliated locals. - I deem the foregoing provisions necessary to remedy the violation of the Act found and to effectuate the poli- cies of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed9 ORDER 1. Respondent Employer, Abraham & Straus, a Divi- sion of Federated Department Stores, Inc., Brooklyn, New York, its officers, agents, successors, and assigns, shall A. Cease and desist from (1) Maintaining, enforcing, or otherwise giving effect to an exclusive referral arrangement, understanding, and practice with Local 1456, International Brotherhood of Painters and Allied Trades, AFL-CIO pursuant to which nonunion member applicants are denied the op- portunity to register and union members are referred for employment with it in preference to nonunion members. (2) Maintaining, enforcing, or otherwise giving effect to the aforesaid exclusive referral arrangement in such a manner as to result in the Union's failure and refusal to refer Joseph Smith to it for employment as a mainte- nance painter because of his nonmembership in the Union. (3) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. B Take the following affirmative action necessary to effectuate the policies of the Act (1) Offer Joseph Smith immediate and full reinstate- ment to his former job as regular maintenance painter, or if his job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, dismissing, if necessary, any person hired after March 1984, for that position or if such a po- sition is not then available, place Smith on a preferential hiring list and request his recall on referral from Re- spondent Union at such time as a position as regular maintenance painter becomes available and notify Smith, in writing, of that request (2) In conjunction with Local 1456, International Brotherhood of Painters and Allied Trades, AFL-CIO, with the Union primarily liable, make Joseph Smith whole for any loss of earnings he may have suffered as a 9 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 FEDERATED DEPARTMENT STORES 967 result of the discrimination against him in the manner set forth in the remedy section of this decision (3) 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. (4) Post at its principal office and place of business at 420 Fulton Street, Brooklyn, New York, as well at its place of business at Rego Park, Queens, New York, copies of the attached notice marked "Appendix A "10 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Re- spondent Employer's authorized representative, shall be posted by the Respondent Employer immediately upon receipt and maintained for 60 consecutive days in con- spicuous places including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent Employer to ensure that the notices are not altered, defaced, or covered by any other material. (5) Deliver to the Regional Director for Region 29 signed copies of the notice in sufficient number to be posted by Local 1456, International Brotherhood of Painters and Allied Trades, AFL-CIO, in all places where notices to members are customarily posted. (6) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent Employer has taken to comply. 2. Respondent, Local 1456, International Brotherhood of Painters and Allied Trades, AFL-CIO, its officers, agents, and representatives, shall A. Cease and desist from (1) Maintaining, enforcing, or otherwise giving effect to an exclusive referral arrangement with Abraham & Straus, a Division of Federated Department Stores, Inc., or with any other employer with whom it has an exclu- sive employment referral agreement or arrangement, pur- suant to which nonunion member applicants are denied the opportunity to register and union members are re- ferred for employment in preference to nonunion mem- bers. (2) Refusing to register any employee as an applicant for referral under its employment referral system because that employee is not a member of the Union. (3) Operating its exclusive referral system in such a manner as to cause Abraham & Straus, a Division of Federated Department Stores, Inc., or any other employ- er with whom it has an exclusive referral agreement or arrangement to deny employment to any employee or applicant for employment because of lack of union mem- bership (4) Refusing and failing to represent any employee fairly in the maintenance and operation of its employ- ment referral system because of that employee's lack of union membership. 10 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 " (5) In any like or related manner restraining or coerc- ing employees in the exercise of their rights guaranteed in Section 7 of the Act. B. Take the following affirmative action necessary to effectuate the policies of the Act. (1) Notify Abraham & Straus, a Division of Federated Department Stores, Inc, in writing, and furnish Joseph Smith with a copy, that it has no objection to referring him for employment through its exclusive referral ar- rangement in his rightful order of priority, as a regular employee entitled to seniority on recall to work from layoff pursuant to article XVI(c) of the parties' 1984- 1987 agreement and that it has no objection to his em- ployment as a painter employee by the Employer or any other employer under exclusive referral agreement with it, and requests his hire, and advises that he will have full use of its referral system without discrimination (2) Register Joseph Smith in its referral system and in conjunction with Abraham & Straus, A Division of Fed- erated Department Stores, Inc., with the Union primarily liable, make him whole for any loss of earnings he may have suffered because of the discrimination against him from 9 March 1984, and make whole Joseph Smith for any loss of earnings he may have suffered because of dis- crimination against him from 15 September 1983, arising from the unlawful operation of the Union's exclusive re- ferral system with employers other than Abraham & Straus, A Division of Federated Department Stores, Inc., because of lack of membership in the Respondent Union, in the manner set forth in the remedy section of this de- cision (3) Keep and retain for a period of 2 years from the date of this decision permanent written records of its hiring and referral operations, which will be adequate to disclose fully the basis on which each referral is made, and, on the request of the Regional Director of Region 29 or his agents, make available for inspection, at all rea- sonable times, any records relating in any way to the hiring and referral system. (4) Submit four quarterly reports to the Regional Di- rector, due 10 days after the close of each calendar quar- ter, subsequent to the issuance of this decision concern- ing the employment of Joseph Smith and other non- member applicants subsequently found to have been simi- larly situated through our referral system Such reports shall include the date and number of employer requests for referrals, the date and number of job applications made to the Respondent Union, the date, order and actual number of actual job referrals by the Respondent Union, and the length of such employment during each such quarter period. (5) Place the referral registers, for a period of 2 years, on a table or ledge in the office of the Respondent Union for easy access and inspection by work applicants, as a matter of right, on the completion of each day's entries in such register (6) Notify, in writing, all painter applicants for em- ployment who use the District Council 9, International Brotherhood of Painters and Allied Trades, AFL-CIO referral hall, of Respondent Union's office location and telephone number, the fact that it maintains referral reg- 968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD isters in which it records daily the number of employer requests for referrals, the number and order of job appli- cations and of job referrals, the manner and hours that applicants may register for referral, and informing of the availability of the referral registers for inspection, by pre- paring and mailing a notice containing such information for posting by District Council 9 at its referral hall and by publishing such information m its newspaper or publi- cation provided for members and providing such infor- mation to District Council 9 for publication in its news- paper or other publication provided for members of its affiliated locals. (7) 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. (8) Post at its business offices, exclusive referral loca- tion, and meeting places, copies of the attached notice marked "Appendix B." I I Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent Union's authorized rep- resentative, shall be posted by the Respondent Union im- mediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to members are customarily posted Rea- sonable steps shall be taken by the Respondent Union to ensure that the notices are not altered, defaced, or cov- ered by any other material. (9) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent Union has taken to comply. IT IS FURTHER ORDERED that the portion of the con- solidated complaint alleging that the Respondent Em- ployer has violated Section 8(a)(2) of the Act is dis- missed. APPENDIX A NOTICE To EMPLOYEES 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 maintain, enforce, or otherwise give effect to an exclusive referral arrangement, understand- ing, or practice with Local 1456, International Brother- hood of Painters and Allied Trades, AFL-CIO pursuant to which nonunion member applicants are denied the op- portunity to register and union members are referred for employment with us in preference to nonunion members. WE WILL NOT maintain, enforce, or otherwise give effect to the aforesaid exclusive referral arrangement in such a manner as to result in the Union's failure and re- fusal to refer Joseph Smith to us for employment as a maintenance painter because of his nonmembership in the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL offer Joseph Smith immediate and full rein- statement to his former job as regular maintenance paint- er, or if his job no longer exists, to a substantially equiva- lent position, without prejudice to his seniority or other rights and privileges, dismissing, if necessary, any person hired after March 1984, for that position, or if such a po- sition is not then available, we will place Smith on a preferential hiring list and request his recall on referral from the Union at such time as a position as regular maintenance painter becomes available and notify Smith, in writing, of that request WE WILL, in conjunction with the Union, with the Union primarily liable, make Joseph Smith whole for any loss of earnings he may have suffered as a result of the discrimination against him, plus interest. " Appendix B is omitted from publication ABRAHAM & STRAUS, A DIVISION OF FED- ERATED DEPARTMENT STORES, INC