Painters Local 1140 (Harmon Contract)

PAINTERS LOCAL 1140 (HARMON CONTRACT) 723 Painters Local Union No 1140 of the International Brotherhood of Painters and Allied Trades, AFL-CIO (Harmon Contract Glazing , Inc) and Bennie Morrow Case 19-CB-5941 January 30, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On November 24, 1987, Administrative Law Judge William J Pannier III issued the attached decision The Respondent filed exceptions and a supporting brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge' s rulings, findings,' and conclusions only to the extent consistent with this decision and to adopt his recommended Order as modified and set out in full below The complaint alleges that the Respondent un- lawfully disciplined two members The judge found that the Respondent violated Section 8(b)(1)(A) and (2) by imposing a referral bar and by filing in traunion charges We affirm the judge's finding as to the former allegation and dismiss the complaint as to the latter The Respondent operates an exclusive hiring hall requiring it to furnish written referrals to employ ees whose names are entered on its "open and non- discriminatory employment list " Referral is made according to the order in which employees have signed the list, with exceptions not relevant here The Respondent's bylaw 78 states No member shall report to work at any shop without first securing a work referral slip from the Local Union office Failure to do so shall be cause for charges being filed against the member and/or discharge Union members Bennie Morrow and Gerald Holterhoff, on their own initiative, obtained direct employment with Harmon Contract Glazing, Inc and then sought referral slips from the Respondent prior to reporting for work On September 2, 1986, Rudy Trosclair, the Respondent' s business manag- er, refused to issue the requested slips However, Morrow and Holterhoff reported for work with Harmon on September 3, despite not having been dispatched by the Respondent Harvey Linensch- i The judge denied the General Counsel s request for a visitatonal pro vision in the Order We agree with the judge noting that his decision issued prior to Cherokee Marine Terminal 287 NLRB 1080 (1988) midt, a union organizer who was present at the Harmon worksite on September 3, asked them to leave because they had not been dispatched from the hiring hall Trosclair went to the Harmon worksite later that morning and demanded that the two employees leave because they had not been re ferred pursuant to the hiring hall procedures Up to this point, the legality of the Respondent's actions, within the meaning of Section 8(b)(1)(A) and (2) of the Act, is not in issue 2 We now address the complaint allegations that, subsequent to the September 3, 1986 confrontations between Union Officials Trosclair and Linensch midt and union members Morrow and Holterhoff at the Harmon worksite, the Respondent violated Section 8(b)(1)(A) and (2) by Linenschmidt's filing union charges against each of them and Trosclair's barring them from any future referrals to Harmon Trosclair informed Morrow and Holterhoff by letters dated September 4, 1986, but sent about a week later, that Due to your going to work for Harmon charges have been preferred against you and you have been discharged from this job Your name will remain on the out of work list, and you will be available for dispatch to any job other than the (Harmon) job, as per Local # 1140 By-Laws #78 With respect to the referral bar imposed by Trosclair, we agree with the judge that it was mo- tivated by an unlawful discriminatory animus toward both Morrow and Holterhoff As the judge found, Morrow and Holterhoff each had earlier an tagonized Trosclair by opposing him on various in- ternal union matters, thereby directly and publicly criticizing his leadership of the Local 3 Further, the record fully supports the judge's finding that the Union has not shown that either Trosclair, on his own, or any union trial board had previously barred a member from referral to a particular em- 2 As stated by the judge the refusal to issue referral slips to Morrow and Holterhoff and the demand that they cease working for Harmon were not the subject of any complaint allegations The General Counsel in her brief to the judge argued that the Respondent thereby violated Sec 8(b)(1)(A) and (2) but she did not move to amend the complaint Because the judge considered it necessary to evaluate the circumstances surrounding these events in order to decide the issues that were before him he concluded that even if the complaint had so alleged the evi dence would not have supported those allegations In the absence of any exceptions to this finding we adopt it pro forma 3 As a result of internal union charges filed against Trosclair by Morrow in 1984 Trosclair had been fined and temporarily suspended from office Morrow had also filed charges against Trosclair with the Human Rights Commission and the Department of Labor and had ap peared as a witness against him in a Department of Labor investigation Holterhoff had successfully led the opposition to a dues increase pro posed by Trosclair in 1985 In doing so Holterhoff was perceived by Trosclair as being led The judge found that the evidence suggests that Trosclair considered Morrow to have been the leader in question 292 NLRB No 74 724 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployer for violating bylaw 78 In finding disparate treatment of Morrow and Holterhoff in Trosclair's creation of this new penalty , the judge stressed that bylaw 78 not only makes no explicit provision for this particular penalty but provides for no sanction, other than discharge , not imposed by a union trial board Although conceding this point , Trosclair claimed that, nevertheless, as business manager he had an inherent power to impose a referral bar However, as the judge found, Trosclair did not ex- plain specifically how he reached this understand- ing Further, the Respondent provided no evidence that others recognized or accepted that the buss ness manager possessed such unilateral authority We find no merit in the Respondent's argument that a lack of discriminatory intent on and after September 4, 1986, is shown by Trosclair's having previously dispatched Morrow and Holterhoff to various jobs, in accord with hiring hall rules, after the earlier events giving rise to Trosclair 's personal animus We agree with the judge that Trosclair seized the opportunity provided by the violation of bylaw 78 to retaliate against Morrow and Holter- hoff because of their protected union activities by barring them from any future referrals to Harmon, thereby preempting the trial board's authority over sanctions beyond discharge In our view, the judge's analysis of the Respond- ent's motive in barring Morrow and Holterhoff from any future referrals to Harmon is consistent with Wright Line, 251 NLRB 1083 (1980), and Limestone Apparel Corp , 255 NLRB 722 (1981) See Mine Workers Local (Reitz Coal), 282 NLRB 107 (1986) Accordingly, we affirm the judge's finding of an 8(b)(1)(A) and (2) violation with re- spect to the referral bar Moreover, even if the Respondent had demon- strated that it lacked a specific discriminatory motive, we would still find that the Respondent could not lawfully justify the referral bar The Board has held that a union operating an exclusive hiring hall must represent all individuals who seek to use the hall fairly and impartially The labor or ganization conducting such an operation has a duty to conform with and apply lawful contractual standards in administering the referral system As the Board stated in Operating Engineers Local 406, 262 NLRB 50, 51 (1982), enfd 701 F 2d 504 (5th Cir 1983) [A]ny departure from established hiring hall procedures which results in a denial of em- ployment to an applicant falls within that class of discrimination which inherently encourages union membership , breaches the duty of fair representation owed to all hiring hall users, and violates Section 8(b)(1)(A) and (2), unless the union demonstrates that its interference with employment was pursuant to a valid union-security clause or was necessary to the effective performance of its representative function The Respondent has made no such showing of a legitimate justification Because Morrow and Hol terhoff retained their respective places on the em ployment list following their discharge from Harmon on September 3, 1986 , the Union's duty of fair representation required it to treat them equally with all other applicants seeking referral The Re spondent essentially argues with respect to Holter- hoff, however, that it faced a unique" situation in applying bylaw 78 Holterhoff's high position on the employment list would have resulted in his im mediate return to Harmon pursuant to its Septem- ber 4, 1986 request for four employees The Re- spondent contends that , under those circumstances, Trosclair had a responsibility to ensure that Holter- hoffs bylaw 78 discharge would be effective " According to the Respondent , Trosclair thus exer- cised his inherent discretion as a union official to bypass the trial board and, on his own, define Hol- terhoff's "discharge" from Harmon on September 3, 1986, as precluding his ever being rehired by that employer on that particular project This uniqueness" argument fails in the face of the Respondent's failure to explain why Morrow, whose list position was low enough to ensure that he would not have been eligible for dispatch to Harmon at least through September , should be sub jected to the same restriction placed on Holterhoff The Respondent is incorrect in claiming that, be cause of Morrow s list position, the referral bar would not have affected him Trosclair could not have predicted that Morrow would not have been eligible to return to the Harmon job at some time after September The Respondent, in these circumstances, has thus deprived Morrow and Holterhoff of employment opportunities resulting in referral advantages to other applicants on the employment list, possibly including some who had also, at some point, been found in violation of bylaw 78 without suffering any burdens on their rights to future referrals In doing so, the Respondent has not adequately shown why it did not adhere to the contractual rule on in turn referrals with respect to Morrow and Holterhoff who, despite their having violated bylaw 78, were properly on the employment list Accordingly, we conclude that , even assuming the absence of invidious or discriminatory intent, the Respondent violated Section 8(b)(1)(A) and (2) by PAINTERS LOCAL 1140 (HARMON CONTRACT) arbitrarily departing from established hiring hall procedures 4 We reach a different result, however, concerning the judge's finding that the Respondent's filing of charges against Morrow and Holterhoff itself con- stituted a violation of Section 8(b)(1)(A) and (2) The judge conceded that the record reveals that it was "not unprecedented" for union members and officials to file charges against those members who had secured direct employment in violation of bylaw 78 Here, with respect to Linenschmidt's motivation, the judge emphasized that this was the first time that he had filed charges of any sort against any member Linenschmidt did not testify However, Trosclair stated that he had not solicited Linenschmidt to file the charges but that he had assisted him in putting the charges together' be- cause "I don't think he'd ever done them before " The judge stressed the Respondent's failure to call Linenschmidt as a witness in concluding that it had failed to meet its burden of demonstrating that Linenschmidt was not unlawfully motivated in filing the charges or that Trosclair's participation did not go beyond "ministerial assistance " We find merit in the Respondent's exception to the judge's burden of proof analysis In making a prima facie case under Wright Line, it is the General Counsel who has the initial burden of showing a discrimina- tory motive Here, we find that the General Coun- sel has produced no evidence at all that Linensch- midt, in filing charges explicitly permitted by bylaw 78, was acting either on his own unlawful motive or pursuant to the direction of Trosclair, whose animus against Morrow and Holterhoff has been made clear Consequently, there is no prima facie case for the Respondent to rebut According ly, we shall dismiss the complaint allegation as to the filing of intraunion charges ORDER The National Labor Relations Board orders that the Respondent, Painters Local Union No 1140 of the International Brotherhood of Painters and Allied Trades, AFL-CIO, its officers, agents, and representatives, shall 1 Cease and desist from (a) Barring employees from referral or dispatch and refusing to refer or dispatch them from its ex clusive hiring hall because they exercise their rights under Section 7 of the Act (b) Operating its exclusive hiring hall and refer ral system in a discriminatory or arbitrary manner 4 It, finding that the Respondent violated Sec 8 (b)(1)(A) and (2) with respect to the referral bar Member Cracraft relies on the analysis based on the Board s decision in Operating Engineers Local 406 supra 725 (c) Causing or attempting to cause employers to discriminate against Bennie Morrow, Gerald Hol- terhoff, or any other employees, members, job ap- plicants, or registrants by discriminatorily refusing to refer or dispatch them, and by discriminatorily barring them from referral or dispatch to Harmon Contract Glazing, Inc, or any other employer pur- suant to operation of its exclusive hiring hall and referral system (d) In any like or related manner restraining or coercing employees, members, job applicants, or registrants in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces sary to effectuate the policies of the Act (a) Make Bennie Morrow and Gerald Holterhoff whole for any loss of earnings and benefits that they may have suffered because they were unlaw fully denied and barred from referral and dispatch to employment with Harmon Contract Glazing, Inc, on and after September 4, 1986, in the manner set forth in the remedy section of the judge's deci- sion (b) Preserve and, on request, make available to the Board or its agents, for examination and copy- ing, all hiring records, dispatcher lists, referral slips and other documents necessary to analyze and compute the amount of backpay due Bennie Morrow and Gerald Holterhoff (c) Post at its business offices, hiring hall, and meeting places in Anchorage, Alaska, copies of the attached notice marked "Appendix 5 Copies of the notice, on forms provided by the Regional Di- rector for Region 19, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon re ceipt and maintained for 60 consecutive days in conspicuous places, including all places where no- tices to members and employees are customarily posted Reasonable steps shall be taken by it to ensure that the notices are not altered, defaced, or covered by any other material (d) Additional copies of the attached notice marked "Appendix" shall be signed by an author- ized representative of Painters Local Union No 1140 of the International Brotherhood of Painters and Allied Trades, AFL-CIO, and forthwith re- turned to the Regional Director for Region 19 for posting by Harmon Contract Glazing, Inc, it being willing, at its places of business in Anchorage, 5 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 726 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Alaska, where notices to its employees are custom- arily posted. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to refer or dispatch you or bar you from referral or dispatch from our hiring hall because you exercise your rights under the Na- tional Labor Relations Act. WE WILL NOT cause or attempt to cause employ- ers to discriminate against Bennie Morrow, Gerald Holterhoff, or any other employees, members, job applicants, or registrants by discriminatorily refus- ing to refer or dispatch them and by barring them from referral or dispatch to Harmon Contract Glazing, Inc. or to any other employer pursuant to operation of our exclusive hiring hall and referral system. WE WILL NOT operate our exclusive hiring hall and referral system in a discriminatory or arbitrary manner. WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL make Bennie Morrow and Gerald Hol- terhoff whole for any loss of earnings they may have suffered because we unlawfully denied and barred them from referral and dispatch to employ- ment with Harmon Contract Glazing, Inc. on and after September 4, 1986, with interest to be paid on the amounts owing. PAINTERS LOCAL UNION No. 1140 OF THE INTERNATIONAL BROTHERHOOD OF PAINTERS AND ALLIED TRADES, AFL-CIO Patrick F. Dunham, Esq., for the General Counsel. William K Jermain (Jermain, Dunnagan & Owens), of Anchorage, Alaska, appearing for the Respondent. Bennie B. Morrow, of Anchorage, Alaska, appearing pro se. DECISION STATEMENT OF THE CASE WILLIAM J. PANNIER III , Administrative Law Judge. I heard this case in Anchorage, Alaska, on July 16, 1987. On April 16, 1987, the Regional Director for Region 19 of the National Labor Relations Board, (the Board) issued a complaint and notice of hearing, based on an unfair labor practice charge filed on September 4, 1986,1 amended on September 9, alleging violations of Section 8(b)(1)(A) and (2) of the National Labor Relations Act, (the Act). All parties have been afforded full opportunity to appear, to introduce evidence, to examine and cross- examine witnesses, and to file briefs. Based on the entire record, upon the briefs filed on behalf of the parties, and on my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT. 1. JURISDICTION At all times material, Harmon Contract Glazing, Inc., (the Employer), has been a State of Washington corpora- tion with office and place of business in Seattle, Wash- ington, and has operated in Anchorage in the business of window glazing and related work. The complaint alleges a multiplicity of facts supporting various theories for as- serting jurisdiction over the Employer. Each of them is admitted in the answer, as is the conclusionary allegation that the Employer is engaged in commerce. For exam- ple, the complaint alleges that during the 12-month period preceding issuance of the complaint, a representa- tive period, the Employer derived gross revenue in excess of $500,000; sold and shipped goods or provided services in excess of $50,000 directly to customers locat- ed outside of Washington or to customers within that State, each of which in turn engaged in interstate com- merce by other than indirect means in amounts totaling more than $50,000; and purchased and caused to be transferred to its facilities in Alaska goods and materials valued in excess of $50,000, which originated outside that State. Therefore, I conclude that the Employer is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED At all times material, Painters Local Union No. 1140 of the International Brotherhood of Painters and Allied Trades, AFL-CIO (Respondent), has been a labor orga- nization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Issues As described in detail post, glaziers Bennie Morrow and Gerald Holterhoff obtained employment with Harmon Contract Glazing, Inc. and began work at its Resolution Plaza project on September 3. On the preced- ' Unless stated otherwise, all dates occurred in 1986. PAINTERS LOCAL 1140 (HARMON CONTRACT) 727 ing day, they had been told that Respondent would not refer them to that project During the morning of Sep tember 3 , Respondents officials ascertained that Morrow and Holterhoff were working for the Employer and de manded that they cease work The two glaziers worked for the remainder of that day but in light of Respond ent s demand that they stop , did not work thereafter for the Employer The complaint does not allege that Re spondent acted unlawfully in connection with any of these events Instead, it focuses on two subsequent inci dents First, it alleges that Respondent violated the Act when, by letter [it] notified Morrow and Holterhoff that they would be ineligible for referral to Harmon, and since that date failed and refused to refer them to em ployment with Harmon Second, it alleges that Re spondent violated the Act by invok[ing] bylaw number 78 and fil[ing] internal union charges against Morrow and Holterhoff for their having worked for Harmon Notwithstanding these narrow allegations, in her brief the General Counsel argues that Respondent had acted unlawfully in refusing to refer the two glaziers on Sep tember 2 and in demanding on September 3 that they cease working for the Employer, although no motion has been made to amend the complaint to include allegations to that effect For the reasons set forth in section III C , infra, I con elude that Respondent did violate the Act as alleged in the complaint A preponderance of the evidence shows that the discipline meted out to Morrow and Holterhoff had been motivated by an intent to retaliate because of participation in protected activity But I do not agree that Respondent acted on an unlawful motivation when it had initially refused to refer the two glaziers on Sep tember 2 and then demanded on the following day that they cease working for the Employer A preponderance of the evidence shows that Respondent lawfully had changed its referral practice , that the two glaziers had been aware of the change before they actually began work with the Employer, and that Respondent demand ed that they cease working because they had circum vented the referral procedure when they accepted em ployment directly from the Employer Consequently even had these events been the subject of allegations in the complaint I conclude that a preponderance of the evidence would not have supported those allegations B Evidence In August the Employer secured a subcontract to per form glazing work at the Resolution Plaza project Be cause it had never performed work in Alaska the Em ployer was not a party to a collective bargaining con tract with Respondent However, it was party to a con tract with Respondents sister local in Minneapolis By virtue of the terms of that contract the Employer was obliged to observe the contracts of other Painters locals in whose jurisdiction it worked However the existence of the Minnesota contractual relationship was not con firmed by Respondent by the time the Employer com menced work on September 3 Article 5 04 of Respondents standard contract con tams an exclusive hiring hall provision It obliges Re spondent to furnish written referrals to employees whose names are entered on its open and non discriminatory employment list ' Referral is made according to the order in which employees have signed the list, save for two exceptions First an employer may request referral of specifically named workmen who have been recently laid off or terminated by [that employer] Second, a re ferral preference is accorded to Workmen who have been employed by Employers within the unit covered by this Agreement during the previous six (6) months Historically there has been a shortage of glaziers in Alaska As a result, the practice arose of disregarding the contractual formalities of hiring hall referral Instead, glaziers were permitted to hustle their own jobs Once a glazing job was located the employer would call the hall and name request the glazier who had hustled that job In turn, at the first convenient opportunity that gla zier would go to the hiring hall and secure a referral slip It was not uncommon for a referral slip to be actually obtained at a point in time after the glazier already had started working on the job In short, a history of exces sive employment opportunities generated a practice of circumventing the contractual hiring hall procedure Bennie Morrow had been a member of Respondent for a number of years and had held several official positions with it However animosity had developed between him and Respondents then business manager, Rudy Joseph Trosclair Because of his belief that Trosclair was engag mg in improprieties, Morrow had filed internal union charges that ultimately led to Trosclair being fined and temporarily suspended from office Morrow also had filed charges against Trosclair with the Human Rights Commission and, in addition, had been subpoenaed to appear as a witness against Trosclair in a Department of Labor investigation When testifying, neither Morrow nor Trosclair minced any words about his dislike for the other In mid August it became common knowledge that the Employer had obtained the glazing subcontract for the Resolution Plaza project in downtown Anchorage With out stating a reason Morrow obtained the name and tele phone number of a Seattle official of the Employer from Harvey Linenschmidt an organizer for Respondent 2 Linenschmidt provided the information without voicing any reservation concerning direct contact with the Em ployer by Morrow Morrow did place the call and in quired about employment at Resolution Plaza Ultimately he was told that his name and telephone number would be given to Efrain Pehlivanian who would be serving as glazing foreman and who would be arriving in Anchor age in about a week Holterhoff also had learned in August that the Em ployer had received the glazing subcontract In 1985 Holterhoff had become involved in opposing a dues in crease sought by Trosclair Not only did the membership reject that increase but it voted in favor of Holterhoff's 2 The parties stipulated that Lmenschmidt was an agent of Respondent He did not appear as a witness in this proceeding Save for an unsuccess ful effort to show that he had left Respondent s jurisdiction for Cahfor ma Respondent advanced no reason for failing to produce Lmenschmidt as a witness 728 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD dues reduction motion . At that time, Holterhoff told Trosclair that he was dissatisfied with the administration of Respondent . Trosclair claimed that he harbored no animosity toward Holterhoff as a result of this incident. According to Trosclair, the dues reduction election had been null and void. However, Trosclair did not deny that Respondent's leadership had been criticized by Hol- terhoff. Furthermore, he testified that he believed that Holterhoff "was being led." At all times material , HolterhoiFs name had been suffi- ciently high on the out-of-work list to warrant his dis- patch to Resolution Plaza. Mindful of that fact, on August 25 he asked Linenschmidt if the Employer's "job was going to be name -requested or off the top of the list?" Linenschmidt replied that the list would not be fol- lowed. Holterhoff protested, pointing out that for the SOHIO job Respondent "went off the top of the list." Nevertheless, Linenschmidt said that the list would not be followed. Two days later, on August 27, Holterhoff repeated Linenschmidt's remarks to Morrow during a conversa- tion in which Morrow asked if Holterhoff would like to go to work at Resolution Plaza. At some point that same day, Morrow testified, he had participated in a conversa- tion with Pehlivanian and Don Jones, the Employer's su- perintendent, on the second story at Resolution Plaza. This was an open area , visible from the street below. As this conversation progressed, Morrow testified, "I saw Rudy Trosclair get out of his 'vehicle and walk toward the building. As he walked toward the building he looked up and saw me and went back-his head went back down and he walked on in." Trosclair acknowl- edged having gone to Resolution Plaza that day. He had taken a copy of Respondent 's collective-bargaining con- tract to see if the Employer would sign it . He admitted having seen Morrow's truck "at the job," but denied having seen Morrow while he had been there . Signifi- cantly, Pehlivanian, though he testified, made no mention of having participated in a conversation such as the one described by Morrow. Holterhoff testified that on August 28, he again went to Respondent's hall to inquire if there had been a call to work by the Employer. On that occasion Linenschmidt told Holterhoff, testified the latter, "that he was going to go off the top of the list [in dispatching glaziers to the Employer]." At approximately 2 p.m. on September 2, Pehlivanian told Morrow to report for work, along with Holterhoff, the following morning. Morrow inquired specifically if Pehlivanian had called Respondent's hall; Pehlivanian said that he had not done so. Later in the afternoon or early that evening Morrow and Holterhoff went to Re- spondent's hall to obtain signed referral slips . However, Trosclair refused to sign slips for the two glaziers. Asked why he had not done so, Trosclair testified: Three different reasons. I was not sure of a working agreement-of Harmon Glass being signatory with our Local, I was waiting on that call from Minneso- ta. I had no call from Harmon Glass for anybody, any individuals whatsoever. And I informed both of them that they had known prior to this that the calls for Harmon would be handled on an open-call basis off the top of the list. So there were three dis- tinct reasons.3 Both Morrow and Holterhoff denied that Trosclair had said anything about the absence of a contract between Respondent and the Employer. Morrow testified that Trosclair had said only "that he had no name request for us from [the Employer]." Holterhoff agreed that Tros- clair had made that statement. But he testified that Tros- clair had also, "said he wouldn't dispatch anybody be- cause he was going to go off the top of the list." Despite their failure to obtain referrals from Respond- ent, Morrow and Holterhoff reported for work on Sep- tember 3. According to Morrow, "When I arrived at 7:00 o'clock I told Efram that since Rudy had said he had no name request for us that Efram would have to call the union hall , place the name request, which he done at 8:00 o'clock that morning." But neither Holter- hoff nor Pehlivanian corroborated this testimony. In- stead, Holterhoff conceded the accuracy of what was re- cited in his pretrial affidavit: that Morrow had told the Employer's officials "that the problem was that Mr. Trosclair was going to go off the hiring hall." Pehlivan- ian gave no account of what had been said when Morrow and Holterhoff had arrived for work on Sep- tember 3. More important, he did not claim to have made any telephone call to Respondent during the morn- ing of that day. In fact, he ultimately conceded that he had not called Respondent's hall for glaziers until the following day, September 4. Soon after Morrow and Holterhoff commenced work- ing on September 3 Linenschmidt arrived at the site. He spoke with the two glaziers and he spoke separately with Pehlivanian. Regarding the former conversation, both Morrow and Holterhoff testified that Linenschmidt had said that because of Holterhoff's high standing on the out-of-work list, he could continue working for the Em- ployer but did need to come to the hall following work that day to obtain a dispatch slip. Both of them also agreed that Linenschmidt had objected to Morrow con- tinuing to work due to the latter's undisputed low stand- ing on the out-of-work list. Holterhoff did not describe what Linenschmidt had actually said in that regard. Morrow first testified that, "Harvey told me that I couldn't be on that job, he said you cannot be special- requested by any new contractor." During cross -exami- nation, he denied that Linenschmidt had said that calls for the Employer would "have to come off the top of the out-of-work list." But upon being shown his pretrial affidavit, Morrow conceded that this statement also had been made by Linenschmidt that morning. As stated, Morrow and Holterhoff each testified that Linenschmidt had said that Holterhoff could continue working on September 3, but would have to obtain a re- 3 Due to the format of the questioning , initially Trosclair did not testi- fy expressly that he had actually spoken those reasons to Morrow and Holterhoff during their conversation on September 2. But during the course of his account of what occurred during the following day, Tros- clair testified that he had spoken those reasons to Morrow and Holterhoff on September 2: "And the very same reasons I gave them the previous night." PAINTERS LOCAL 1140 (HARMON CONTRACT) 729 ferral slip after work that day But that testimony tended to be refuted by Pehlivanian s testimony concerning what Linenschmidt had said during their conversation that morning Thus, according to Pehlivanian [t]hey objected to us for them working down there And I had told them that we re going to be needing four glaziers If I kept Bert and Jerry since we al ready hired them to work, and 111 call the hall up and get two more glaziers But they were objecting to Bert Morrow and Jerry s working down there they said, well we 11 provide the people whenever you need them, and I couldn t hire Bert or Jerry since we were new in town Trosclair also came to the site during the morning of September 3 It is not disputed that he told Morrow and Holterhoff to leave the site The two glaziers testified that, in doing so, Trosclair had said only that they had no dispatches Trosclair claimed that he had told them to leave because of, the very same reasons I gave them the previous night That we had no calls we had no con tract Pehlivanian testified that during their separate conversation, Trosclair had told him only that the two glaziers should leave because they had not been dis patched Trosclair did not refute this testimony by Pehli vanian Instead, Trosclair testified only that he had told Pehlivanian of the problems when he insisted that Morrow and Holterhoff leave the site At Linenschmidt s suggestion , Morrow and Holterhoff returned to the site on September 4 and asked Pehlivan ian to specifically request of Trosclair that they be re ferred Pehlivanian testified that when he called the hall that morning Linenschmidt had said that he would not refer Morrow and Holterhoff but would send two other glaziers During a second call that day, Pehlivanian testi fled he had spoken to a secretary and to Trosclair He requested that Morrow and Holterhoff be dispatched im mediately and that two other glaziers be dispatched later Pehlivanian did not describe the response to that request However after examining his affidavit he acknowledged that a conversation had occurred 1 or 2 days later in which Trosclair said he had to go by the list that he had 50 some people out of work on the list and that he had to go by the list I wanted Morrow and Holter hoff but Trosclair said he wouldn t do it he had other members he had to think of Respondent sent two letters to Morrow and two iden tically worded letters to Holterhoff All bear the date September 4 although Respondent acknowledges that they were actually sent almost a week later 4 Two of the 4 Trosclair testified that it was common due to their workloads for Respondents secretaries to prepare and mail correspondence after the dates recited on them The General Counsel points to the propinquity be tween the date of receipt by Respondent of Morrow s charge and the actual mailing of these four letters questioning whether the latter may actually have been generated by the former However the complaint does not allege that these letters were prepared and transmitted in retalia tion for the filing of the charge Further at no point including in the brief filed on her behalf does the General Counsel move to amend the letters one to Morrow and the other to Holterhoff, were signed by Trosclair Each one states, to the extent perti nent here Due to your going to work for Harmon Glass on the Resolution Towers sic job, charges have been preferred against you and you have been discharged from this job Your name will remain on the out of work list and you will be available for dispatch to any job other than the Resolution Tower job as per Local # 1140 By Laws #78 Bylaw 78 prohibits reporting to work without a refer ral slip But it says nothing about barring an employee s ability to be later referred to the same shop or project on which that employee had been working without a refer ral slip No member shall report to work at any shop with out first securing a work referral slip from the Local Union office Failure to do so shall be cause for charges being filed against the member and/or discharge Trosclair conceded that bylaw 78 does not authorize bar ring an employee from dispatch to a location where that employee once had accepted work without first securing a referral slip Instead, he claimed that authority to impose that penalty is in effect an inherent power of the business manager, available as a means for preventing employees from circumventing hiring hall procedure by seeking employment directly But Trosclair did not ex plain specifically how he reached the conclusion that the business manager possessed that authority Respondent did not produce any evidence even tending to show that it was recognized and accepted nor that Respondent s business manager possessed such summary authority Indeed in the final analysis there was no showing that a business manager had ever imposed such a penalty on any other occasion Trosclair claimed that prior instances had occurred However he was not able to identify even a single prior incident that had resulted in application of that penalty Nor was he able to recite the name of a single employee who had suffered such a penalty with out regard to the specific circumstances under which it had been levied A series of records were produced showing situations where employees had been charged with violating inter alia bylaw 78 In not one instance, where the trial board concluded that bylaw 78 had been violated did it then bar that employee from future employment at the loca tion where that employee had been hired directly Nor do the records show anything that would afford a basis for concluding that such a penalty had been applied by another official or board of Respondent Finally there is undisputed testimony, from painter and drywall finisher Chris Christensen that violations of bylaw 78 absent more serious accompanying by law violations have been complaint to allege such a violation Consequently in analyzing the facts of this case I give no consideration to the fact that the four letters were actually prepared after Respondent had received the charge 730 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD historically considered "relatively insignificant" and "not that big a deal." The second pair of letters notified Morrow and Hol- terhoff that they had been charged with violating bylaws 57 and 78 for having commenced work for the Employer after having been denied referrals and after having been specifically, told by Business Manager Trosclair that the Union had no signed agreement with Harmon Glass, we were not aware of their being signatory in any other location, and we had not received a request for workmen from Harmon Glass as per Article 5 5.04(B) (C) of our working agreement, therefore [they] could not be dispatched at that time. Ultimately, separate hearings were conducted on the charge against each of these two glaziers . In Morrow's case, the trial board concluded that the charges were warranted. However, in response to Morrow's appeal, the International remanded the case for rehearing. Re- spondent decided not to retry the case. Holterhoff's hear- ing opened, but no decision was rendered by the trial board. Ultimately, the charge against him was dropped. He was notified by letter that "all subsequent corre- spondence relating to Harmon Glass is now null and void." As a consequence, the only penalty actually im- posed upon Morrow and Holterhoff was the bar, im- posed by Trosclair, against their ever being dispatched to Resolution Plaza. Before proceeding to analysis several points warrant further explanation. First, the internal union charges were prepared by Linenschmidt. Trosclair testified that he had helped Linenschmidt do so. But Trosclair denied having soliciting preparation of the charges and denied that he had been the one who had originated the idea of preparing them. As pointed out in footnote 2, supra, Lin- enschmidt did not appear as a witness. Accordingly, the record is devoid of corroboration for these assertions by Trosclair and, further, lacks any explanation concerning Linenschmidt's motive for having decided to prefer these charges against Morrow and Holterhoff. This is a signifi- cant omission since Linenschmidt had never previously seen fit to file charges against an employee. Second, as must now be obvious, Holterhoff's late August, early September position on the out-of-work list warranted his referral to the Employer in the ordinary course of dispatching. By contrast, Morrow was so low on that list that he would not have been dispatched to Resolution Plaza in September, although it is not clear whether or not he might later have been dispatched there in the ordinary course of dispatching. Third, while the internal charges against Morrow and Holterhoff listed violations of both bylaw 57 and bylaw 78, litigation regarding past practice was confined to bylaw 78. Morrow had served in various capacities for Respondent from July 1979 to June 1985, including trial board member. Asked during direct examination if he had heard of any other glaziers being charged with vio- lating bylaw 78, Morrow flatly asserted: "I have no knowledge of any member ever being brought up on charges-on those charges since 1979." When this same topic was probed during cross-examination, Morrow an- swered in a manner showing that he plainly had intended the earlier answer to apply to all members, not simply those who are classified as glaziers : "I made the state- ment to my recollection I don't recall any during my term of anybody being charged for that violation [bylaw 78]." However, Respondent's records plainly disclose a number of members who had been charged with violat- ing bylaw 78 between 1979 and 1985. In most instances, that by law was but one of several by law violations that had been charged. Nevertheless, in 1983 Virgil Grant was alleged to have violated only bylaw 78. Although that charge was ultimately vacated, the trial board initial- ly imposed a $100 fine on Grant for that violation. Most of the individuals named in the charges occupied classifications other than that of glazier, such as painter, floor coverer, or drywall taper. But Morrow conceded, when shown the documentation, that Dennis Black- charged with having violated bylaws 78, 98, 100, and 101 in January 1984-is a glazier. In an apparent effort at damage control, Morrow ultimately testified that in his opinion bylaw 78 did not apply to most of these cases, including the one pertaining to Black, because they in- volved situations where those employees had been work- ing for nonsignatory contractors. Thus, employees could not have been dispatched to those contractors. However, he did not specifically testify that he had not been aware of the charges brought against those employees. Nor did he explain why he had initially claimed that, since 1979, no members, save for Holterhoff and himself, had ever been charged with violating bylaws 78. Fourth, as set forth above, Trosclair asserted that he had been unwilling to permit glaziers to work for the Employer before ensuring that the latter was bound to the terms of Respondent's standard contract. But Re- spondent's own records contradict that assertion. In a telephone conversation with an official of Respondent's International, Trosclair had learned that the Employer might be bound to the contract of Respondent's sister local in Minneapolis. That contract did contain a provi- sion that bound signatory employers to observe contracts of sister locals, such as Respondent, in whose jurisdiction those employers worked. Trosclair telephoned the Min- neapolis local to verify that the Employer was a signato- ry to its contract. However, he was unable to obtain an immediate response. Ultimately, and Trosclair received confirmation it in the form of a "PHONE MEMO" recording from Minne- apolis that the Employer was signatory to the contract there. This memo was prepared by one of Respondent's secretaries who dated it "9-5-86." There is no dispute about the accuracy of that date. Yet, Respondent's own employment list shows that three glaziers had been dis- patched to the Employer on September 4, the day before the call from Minneapolis. In fact, the referral slip for one of them bears the date "9-3-86," although that date is not established to have been accurately recorded. Nor did that glazier, James Huber, appear to testify that it had been the correct date on which he actually had re- ceived the referral. PAINTERS LOCAL 1140 (HARMON CONTRACT) It cannot be doubted that Trosclair had been con cerned about whether the Employer was bound to ob serve the terms of Respondents contract He would not have called Minneapolis unless he had harbored that con cern However, the referral records refute any conten tion that his concern had risen to the level of unwilling ness to refer glaziers to the Employer before actually re ceiving confirmation that the Employer was party to a contract with the Minneapolis local Fifth, Pehlivanian admitted that he had not contacted Respondent's hall to request referral of Morrow and Holterhoff before they had actually started work on Sep tember 3 As a consequence, Respondent correctly con tends that the contractual referral procedure had been ig nored For, as discussed above, even pursuant to the his torical hustling practice, an employer would ordinarily have called to request referral of the glazier(s) who had been hired directly Further, under the contract it appears that the Em ployer would not have been able to request employees by name Of the two above described exceptions to ordi nary referral preference, the first-allowing requests by name of previously laid off or terminated employees-is not applicable to the Employer It had never worked in Respondert s jurisdiction and obviously, could never have previously laid off nor terminated a glazier there 5 The second exception is not one that grants an entitle ment to employers Rather on its face, it accords a pref erence to employees if they are registered on the em ployment list and have worked within the preceding 6 months for an employer whose employees are in the bar gaining unit Both Morrow and Holterhoff appear to have qualified for this preference But there is no evi dence that either one of them ever advanced it to Re spondent s officials as a basis for being referred to the Employer Instead they relied solely on the historic practice to justify continued employment at Resolution Plaza Moreover, invocation of that preference contem plates an employer request for referral of glaziers Of course that did not occur before Morrow and Holter hoff started working for the Employer on September 3 Sixth in the course of litigation evidence was ad duced regarding out of order dispatches for individuals designated as foreman and steward There is no allega tion that Respondent violated the Act in doing so Nor were these topics litigated in any detail On the basis of this record they have no relevance within the meaning of Fed R Evid 401 to the issues posed by the complaint Regarding to foremen article 8 01 of the contract pro vides Head Foreman will be specifically designated by the Employer and the Local Union so notified Nothing refutes the testimony that this article permitted employ ers to request the individuals who would serve as fore man With respect to stewards, article 10 01 of the contract states The Local Union shall have the authority to ap point or select a Shop Steward The General Counsel contends that this language obliges Respondent to 5 Consequently there is validity to Trosclair s articulated protest against permitting a new contractor to request employees by name under the new contractual procedure 731 choose its steward from the employees dispatched in the normal order of referral But the language of article 1001-which allows Respondent to appoint as an al ternative to select -does not mandate such an interpre tation On its face, the language appears to permit selec tion of a worker lower on the list but better qualified than those registered above That Respondent is con cerned with the choice of individuals chosen as stewards is amply shown by glazier Jay Grahams testimony He referred to classes conducted for employees who wish to be stewards and to the fact that successful completion of them leads to issuance of certification as steward Only recently the United States Court of Appeals for the Second Circuit acknowledged the significance of steward selection when it stated in Kudla v NLRB, 821 F 2d 95 100 (1987) As a general rule, unions are vested with the right to select their own representatives for collec tive bargaining Therefore, unions have a pre sumptively legitimate and substantial interest in ap pointing shop stewards who most effectively will administer the contract in the union s interest [Cita tions omitted ] Therefore, of themselves, out of order referral of fore men and stewards do not, on this record serve to show inconsistent practice under Respondents contractual re ferral procedure Finally in contrast to his testimony regarding employ ees barred from further employment at locations where they had obtained work directly Trosclair did furnish a specific past example where Respondent had compelled a newly arrived contractor to place an open call for gla ziers He testified that such a procedure had been fol lowed when MacFarlane had commenced work on the Loussac Building in January Holterhoffs testimony con cerning this particular project had its own independent significance Holterhoff had worked as a glazier on the Loussac Building project Initially he testified that his referral had been requested by MacFarlane, thereby inferentially contradicting Trosclair s assertion that MacFarlane had been required to place an open call for glaziers at that site But this apparent contradiction was subsequently nullified by other testimony given by Holterhoff For, when he was questioned concerning his status on the dis patch list at the time MacFarlane sought to have glaziers dispatched the following testimony was elicited Q Isn t it true at that stage there was nobody else on the hiring hall list You were about it on the hiring hall list at that A There was a few left on it yes Q But basically you were the guy on the hiring hall list? A They hired more after I went to work Q I in talking about then sir when you got this job? You got a dispatch to this job and you were about the only guy left on the hiring hall list? A About yes Q And Mr whoever it was, called down and said I want Jerry Holterhoff and there was no prob 732 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lem with that because you were about the only person available? A. Yes, he called me up, yeah. Moreover, Holterhoff ultimately conceded that "possi- bly" all other glaziers working there had been referred from the out-of-work list: Q. Let me ask you this about the MacFarlane job. The other peopleon that job were all open-call, were they not? A. I don't think so. Q. Well, sir, in your statement, again, didn't you say that-I mean, just reading it again-you went down to the Loussac Building, or Library, et cetera, et cetera. A. Oh, you mean-okay, yeah, okay. Q. I believe all the others went out on open call. To that job? A. I can't testify to that, but yes, possibly. C. Analysis It was my impression when they testified that the prin- cipal witnesses-Morrow, Holterhoff, Trosclair, and even Pehlivanian to some extent-were not being fully candid. Instead, each appeared to be adding to and sub- tracting from accounts of events in an effort to fortify the side that he favored and to undermine the opposing side. A review of the evidence serves only to reinforce that impression. For example, Holterhoff admitted that Trosclair had said on September 2 that the employment list would be the source of glaziers for the Employer's Resolution Plaza project. But Morrow omitted this state- ment from his description of Trosclair's words during that conversation. Similarly, Morrow initially omitted any mention of Linenschmidt having made that same statement in the course of their conversation the follow- ing morning. In fact, he first denied that Linenschmidt had made such a statement at that time. When shown his pretrial affidavit contradicting that denial, he conceded that Linenschmidt did, in fact, did say that glaziers for the Employer would come from the top of the list. Morrow claimed that Pehlivanian had telephoned Re- spondent's hall early on September 3 and had specifically requested that Morrow and Holterhoff be dispatched to Resolution Plaza. However, Pehlivanian did not cor- roborate that testimony. Instead, he testified, ultimately, that not until September 4-the day after Linenschmidt and Trosclair had visited Resolution Plaza and protested the presence of Morrow and Holterhoff there-had he telephoned the hall to request that Morrow and Holter- hoff be dispatched. Furthermore, Morrow initially assert- ed flatly that he had never heard of anyone being charged with violating bylaw 78. But Respondent pro- duced a number of charges that included alleged viola- tions of that bylaw. All of them had been filed during Morrow's tenure as an officer of Respondent and, more specifically, as a member of its trial board. Morrow did not then claim that he had been unaware of those charges. Instead, he argued about their propriety in the circumstances under which each of them had been filed. But, of course, that did not change the fact that their ex- istence directly contradicted his earlier contention that no member had ever been charged with violating bylaw 78, save for Holterhoff and himself. Holterhoffs willingness to color facts was shown most graphically when he attempted to establish that MacFar- lane, then a contractor new to working in Alaska, had not been required to hire glaziers from the employment list. At first he claimed that he had been freely dis- patched when MacFarlane had requested him by name. Yet, intensive questioning led him to ultimately admit that he had been about the only available employee on the employment list at that time. Thus, regardless of the form of the request, Respondent had no choice but to refer him. Moreover, he conceded , as he had stated in his pretrial affidavit , that possibly all other employees who had worked for MacFarlane "went out on open call." It was logical for Trosclair to have been concerned that employers be bound to observe Respondent's con- tract. But Respondent's own records refute Trosclair's testimony that his concern had led him to oppose em- ployment of any glazier , specifically Morrow and Hol- terhoff, at Resolution Plaza before confirming that the Employer was bound to Respondent 's contract by virtue of a contract with the Minneapolis local. To the con- trary, Respondent had been willing to permit glaziers to work for the Employer before confirming the existence of that obligation. This lack of candor by these witnesses makes it diffi- cult to conclude what did occur here , beyond the fact that Morrow and Holterhoff directly secured employ- ment with the Employer , the further fact that Respond- ent secured their removal from that employment and, fi- nally, that Respondent penalized them by barring them from further referral to Resolution Plaza and by subject- ing them to internal union charges. In fact , Trosclair's lack of candor is especially significant . For it is presumed that a labor organization acts illegally any time that it causes an employee's discharge, absent an affirmative showing that its conduct was motivated by lawful con- siderations unrelated to statutory employee rights or to other concerns protected by the Act. Glaziers Local 558 (PPG Industries), 271 NLRB 583, 585 ( 1984). Since he had been the official who made most, if not all, of the decisions affecting Morrow and Holterhoff, Trosclair's state of mind is the crucial subject of analysis. See, e.g., Advanced Installations, 257 NLRB 845, 854 (1981), enfd. sub nom . NLRB v. Advanced Installations, 698 F .2d 1231 (9th Cir. 1982). As stated in section III, A , above, the allegations in the complaint do not place in issue Respondent 's refusal to refer Morrow and Holterhoff on September 2 and 3. Nor does it allege that Respondent violated the Act by causing their terminations at Resolution Plaza on Sep- tember 3. Nevertheless, it is necessary to analyze these events because they form a background to what oc- curred thereafter. The court stated in : Radio Officers' v. NLRB, 347 U.S. 17, 40 (1954). "The policy of the Act is to insulate em- ployees' jobs from their organizational rights." Obviously that insulation is pierced by the existence of a hiring hall. Nevertheless, hiring halls do not constitute a per se vio- PAINTERS LOCAL 1140 (HARMON CONTRACT) lation of the Act Teamsters Local 357 v NLRB 365 U S 667 675 (1961) However, their operation is subject to scrutiny as it is governed by the proscriptions Section 8(b)(1)(A) and (2) of the Act that regulate labor orgam zations generally Section 8(b)(1)(A) of the Act prohibits labor organiza tions from restraining or coercing employees in the exer case of rights guaranteed in Section 7 of the Act Section 8(b)(2) of the Act, to the extent pertinent in this case prohibits caus[ing] or attempt[ing] to cause an employer to discriminate against an employee in violation of sub section (a)(3) As a result two theories are utilized under the Act to measure the legality of hiring hall oper ations The first is rooted in the normal proscription of discrimination Thus [Sections] 8(a)(3) and 8(b)(2) were designed to allow employees to freely exercise their right to join unions, be good, bad or indifferent members or abstain from joining any union without imperiling their livelihood Ibid As these words make plain the prohib ited discrimination is not confined to that which distin guishes between union members and nonmembers Rather, it encompasses, as well, discrimination that is practiced between employees within one of these groups For example, a violation occurs where discrimination is practiced, in order to retaliate against [an] employee for protesting the Union s policies questioning the official conduct of Union agents or incurring the personal hos tility of a Union official Local 594 Auto Workers Y NLRB 776 F 2d 1310, 1314 (6th Cir 1985) See also, H H Robertson Co, 263 NLRB 1344 fn 12 1356-1357 (1982) and cases cited therein The second theory under which the Act can be violat ed occurs when the hiring hall is operated in a manner that is unreasonable arbitrary and invidious For it is an unfair labor practice in violation of [Secs ] 8(b)(1)(A) and 8(b)(2) for a bargaining representative to act in an unreasonable arbitrary or invidious manner in regard to an employees employment status (Citations omitted ) NLRB v Iron Workers Local 433, 600 F 2d 770 777 (9th Cir 1979) The significant difference between these two theories is that the first one contemplates a showing of motive that is discriminatory and under the second theory [n]o specific intent to discriminate on the basis of union membership need be shown Id In this case Respondents standard contract sets forth a hiring procedure in Section 5 04 Subject to the two exceptions described above, that procedure provides for referral in order of registration from the employment list However due to an abundance of work for glaziers in Alaska historically that contractual procedure had been ignored Instead, individual glaziers had been permitted to secure jobs through direct contacts with employers who later requested that those employees be referred by Respondent But by August the employment situation had reversed there was a shortage of jobs and an abun dance of unemployed glaziers By the time that the Employer began work Respond ent had made a decision to cease following the historic practice, reverting to the employment list as contemplat ed by article 5 04 of the contract In his brief counsel for the General Counsel argues that the change had been made either because Trosclair was attempting to retaliate 733 against Morrow and Holterhoff by depriving them of employment or alternatively that the change was unrea sonable arbitrary and invidious The absence of an alle gation to this effect in the complaint would suffice to dis pose of these arguments Beyond that they simply do not withstand analysis With respect to the discrimination theory Trosclair never did testify precisely when he had made the deci Sion to follow the employment list However it is clear that that decision had been made by August 28-the date on which Holterhoff admittedly had been told by Lin enschmidt that the list would be observed for that project There is no evidence that any of Respondent s officials had become aware by August 28 that Holterhoff was being considered for employment at Resolution Plaza The latter conceded specifically that he had not mentioned to Linenschmidt that Morrow had been talk ing with the Employer about employment for the two glaziers Indeed, prior to August 28 Holterhoff had been arguing to Linenschmidt that Respondent should follow the list instead of permitting the Employer to directly select and request glaziers to work at Resolution Plaza Regarding Morrow the evidence is too sparse to sup port an inference that Respondent likely would have known that the Employer intended to hire him Only two facts exist that would permit such an inference to be drawn First, in mid August Morrow asked Linensch midt for the Employers Seattle telephone number But Morrow did not claim that he had given Linenschmidt a reason for the request The Employer operates in several states Even had Linenschmidt suspected that Morrow intended to seek employment with it nothing in Mor row s description of his conversation with Linenschmidt warrants an inference that the latter would naturally have concluded that Morrow intended to seek that em ployment in Alaska More significantly over a week later-on August 25 when he spoke with Holterhoff- Linenschmidt had said that the Employer would be per mitted to request employees by name Accordingly even had Linenschmidt suspected, based on the telephone number request that Morrow intended to seek employ ment with the Employer at Resolution Plaza that suspi cion obviously did not generate sufficient concern for Respondent to replace direct requests for glaziers with the employment list Second as described in section III B above Morrow claimed that he had been seen on Resolution Plaza s second story by Trosclair on August 27 while engaged in conversation with two of the Employers officials Trosclair denied having seen Morrow while there that day As concluded above Morrow was not a credible witness No Employers official appeared as a witness to corroborate this account of Trosclair s purported obser vation nor for that matter of the conversation purport edly then in progress on the second story Nothing in Morrow s description of itself make it likely that Tros clair would actually have seen Morrow in the course of a momentary glance upward assuming even that such a glance had occurred In sum, there is no credible basis on which it can be inferred that Trosclair saw Morrow at Resolution Plaza on August 27 734 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD However that does not end the matter Trosclair ad mitted having seen Morrow s truck at Resolution Plaza that day But that fact, alone, does not warrant the ulti mate inference that Respondent would likely have made the decision to insist that the Employer hire only from the employment list To draw that inference would re quire that four subsidiary assumptions be made First, it would have to be assumed that Trosclair would likely have realized that Morrow was actually on the Resolu tion Plaza site meeting with the Employers officials-as opposed to meeting with officials of some other employ er there or, indeed, as opposed to having simply parked the truck there while he conducted business elsewhere in the surrounding downtown Anchorage area Second, it must be assumed that Trosclair would likely have real ized that if Morrow were meeting with the Employer s officials, such a meeting would involve employment at Resolution Plaza-as opposed to being concerned with employment elsewhere or, indeed, with a matter unrelat ed to employment altogether Third, it would have to be assumed that Trosclair would likely conclude that the Employer would naturally be inclined to hire Morrow- as opposed to simply noting his application while making no definite plan to select him for employment Finally, it must be assumed that Trosclair would then have been disposed to change a settled procedure, in a fashion of fecting every glazier who works in Alaska simply to frustrate the possibility that Morrow might garner work with the Employer To use the lone fact that Morrow s truck was parked at Resolution Plaza as a launching pad for concluding that Respondent had been discriminatorily motivated in requiring the Employer to obtain glaziers from the em ployment list so that Morrow and Holterhoff might be precluded from working, is to exceed the logic of infer ence and to enter the realm of speculation So many un derlying assumptions must be made to reach that conclu sion on the basis of that single fact that like pillars of sand leaning against each other for support they im plode rather than buttress In contrast, the evidence is clear that there was no longer the abundance of work that had led to the histor is disregard of the employment list as the basis for refer ral Instead, there were a number of unemployed glaziers and as Holterhoff's testimony shows some of them were not reluctant to voice their opinion that the list should be followed in staffing at Resolution Plaza Of course anti cle 5 04 of the contract contemplates following that pro cedure in supplying glaziers to employers Moreover the decision to resume using it was made on or before August 28-before Morrow and Holterhoff had actually started working for the Employer and, indeed before there had been a definite commitment made to hire them Further, Respondent had earlier begun using the list as demonstrated by Holterhoff's experience at MacFarlane and by his August 25 reference to the SOHIO project In these circumstances the evidence is not sufficient to es tablish that Respondent was discriminatorily motivated in deciding to follow the employment list rather than permit unemployed glaziers to directly contact the Em ployer for jobs Nor can it be concluded that insistence on following the employment list constituted unreasonable arbitrary, and invidious conduct By way of background , objective criteria must be followed in operating hiring halls See, e g Plumbers Local 619 (Bechtel Corp ) 268 NLRB 766, 767 (1984) But there is no ' requirement [in Board law] that referral rules be incorporated in a contract Iron Workers Local 1505 (Snelson Anvil) 275 NLRB 1113 (1985) Indeed there is no requirement at all under the Act that referral criteria be embodied in written form That is, "it is conceivable that a union could prove by means of other evidence that it had consistently used ob jective standards for the referral of employees without having established any written rules or kept any written records Laborers Local 394 (BCA of New Jersey), 247 NLRB 97 fn 2 (1980) More to the point, nothing in the Act mandates that, once established , referral criteria be maintained without change Even written procedures can be altered so long as the labor organization ' demonstrates that its action is necessary to its effective performance of its repre sentative function IATSE Local 41 (Theater of the Stars), 278 NLRB 89, 91 (1986) Here, the change was from an extra contractual , unwritten one to a procedure that complies with Respondent 's standard cortract It was a change occasioned by declining employment op portunities resulting from economic conditions That is a valid objective criterion It is of no consequence that em ployees who formerly could have obtained immediate employment directly must now wait their turn Respond ent is the representative of all glaziers and 'one cannot overlook the fact that, as employment declines, one reg istrant's established right to referral operates to another registrants prejudice Electrical Workers IBEW Local 592 (United Engineers & Construction) 223 NLRB 899 901 (1976) Consequently there is no basis for concluding that when it reverted to the employment list Respondent acted unreasonably arbitrarily and invidiously However hiring hall changes are accompanied by a corresponding obligation There is a statutory duty to give applicants for employment adequate notice of hiring hall procedures Electrical Workers IBEW Local 11 (Los Angeles NECA) 270 NLRB 424 426 (1984) Ac cordingly a failure to give timely notice of a significant change in referral procedures [is] arbitrary and in breach of the duty to represent job applicants fairly by keeping them informed about matters critical to their employ ment status Operating Engineers Local 406 (Ford Bacon & Davis), 262 NLRB 50, 51 (1982), enfd 701 F 2d 504 (5th Cir 1983) The Board has not defined what it means by ade quate or timely notice to applicants of referral proce dure changes Seemingly no hard and fast rule can be formulated due to the diversity of situations that can exist For example employees using Respondents hiring hall live and work throughout the State of Alaska As a result many come to the hall infrequently In fact, there is no evidence that Morrow had been to the hall during the month preceding his visit there on September 2 Con sequently notice fairly calculated to reach most if not PAINTERS LOCAL 1140 (HARMON CONTRACT) 735 all, applicants in a heavily urbanized setting would not suffice to reach applicants represented by Respondent In all situations, presumably notice would be "ade quate ' if it is given to applicants at the earliest reasona ble time in the circumstances and, in addition , if it is given before an employee actually commences work fol lowing the procedure that has been changed This latter condition accommodates employee expectations and is rooted in the recognized distinction between the status of employees already working and those who have not yet commenced employment at a particular job "Denial of a future employment opportunity is not as intrusive as loss of an existing job Wygant v Jackson , 476 U S 267, 282- 293 (1986) Employees who have not started working have `no absolute entitlement " to a particular position and, consequently, denial of such a position unsettle[s] no legitimate firmly rooted expectation on [their] part ,' at least not so long as they "[remain] eligible for other' positions under the changed procedure John son v Transp Agency Santa Clara Cty Cal, 107 S Ct 1442, 1455-1456 (1987) So far as the record discloses , had Morrow and Hol terhoff abided by the change and sought referral to the Employer following the employment list, nothing would have precluded them from dispatch in the ordinary course of following the list Linenschmidt had told Hol terhoff about the change during the week preceding the one in which the latter had started working at Resolu tion Plaza Consequently, Holterhoff accepted and com menced employment there with full knowledge of Re spondent s planned change in historic procedure There is no basis for concluding that Respondents notice to him of the change had been other than timely The timeliness of notice to Morrow is perhaps a closer question The evidence shows that he knew definitely of the change in the late afternoon or early evening of Sep tember 2 At that point he had not actually commenced working for the Employer There is ample basis for, at least, suspicion that he knew sooner Holterhoff had been informed of the change on August 28 He then conferred with Morrow about working for the Employer In such circumstances it appears unlikely that Holterhoff would not have told Morrow that glaziers for Resolution Plaza were to be selected from the employment list-particu lady since the course being pursued by Holterhoff and Morrow was contrary to that procedure But even assuming that Holterhoff had not repeated to Morrow what Linenschmidt had said in the circum stances the September 2 notice to Morrow was sufficient to be adequate or timely There is no evidence that Re spondent had been aware prior to that date that the Em ployer had reached the point where it was ready to put glaziers to work-admittedly Pehlivanian had not called Respondent about hiring glaziers until September 4 More specifically there is no evidence that Respondent should have been on notice that the Employer contem plated hiring Morrow Further unlike Holterhoff Morrow had not inquired about the procedure that would be followed in satisfying the Employer's need for glaziers, once it actually commenced work In fact, there is no evidence that Morrow had even come to Respond ent's hiring hall between mid August and September 2 Thus, Respondent did not have the opportunity to advise him, as it had Holterhoff, that the employment list would be observed Once Trosclair was told that Morrow in tended to work there, Trosclair immediately notified Morrow that the list would be followed In sum, Respondent informed Morrow of the change as soon as he came to the hall and raised the matter of working for the Employer There is no basis for con cluding that had he raised the matter sooner with Re spondent Morrow would not have been told, as Holter hoff had been told, that the list would be followed By September 2 the Employer had not yet told Respondent when it would begin hiring glaziers Nothing in the record shows that Respondent should have been on notice that the Employer would begin doing so on that date As a result, there was seemingly no need prior to September 2 for Respondent to pursue extraordinary measures to be certain that all unemployed glaziers, wherever located in Alaska , be informed that the em ployment list would be observed once the Employer needed to employ glaziers In these circumstances, I con dude that the notice to Morrow and Holterhoff had been adequate or timely and , accordingly, that Respond ent's conduct in this regard was not unreasonable, arbi trary, and invidious Nor can it be said that Respondent violated the Act when it insisted that Morrow and Holterhoff cease work at Resolution Plaza There is nothing unreasonable, arbi trary and invidious in causing the discharges of employ ees who circumvent hiring hall procedures See, e g, La borers (Hood Mason Contractors), 216 NLRB 778 (1975) Of course, such conduct does violate the Act if it is but a pretext designed to conceal an underlying motive pro scribed by the Act But that is not the situation presented here Here a preponderance of the evidence does not warrant the conclusion that Respondent acted on an ulte rior motive in demanding that Morrow and Holterhoff cease working for the Employer Neither does it support a conclusion that Respondent would have overlooked the matter had other glaziers, instead , been discovered working at Resolution Plaza As noted above Trosclair advanced several reasons for having protested Morrow and Holterhoff working at Resolution Plaza At least one-that Respondent would not permit glaziers to work there absent assurance that the Employer was obliged to observe the terms of Re spondent s contract-was demonstrably false Respond ent did refer glaziers to the Employer before having se cured that assurance from Minneapolis But Trosclair s effort to embellish his testimony does not deprive Re spondent of its right to fair consideration of those por tions of his testimony that are supported by other evi dence That Trosclair might have welcomed the oppor tunity to deprive Morrow, and perhaps Holterhoff as well of employment is not the crucial issue presented here Instead, that issue is whether Respondent acted be cause of that motive A preponderance of the evidence leads to the conclusion that it did not do so Before September 3 Respondent had made a lawful decision to follow the employment list with respect to the Employers project That procedure required the 736 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Employer to contact Respondent for glaziers; the Em- ployer did not do that before putting Morrow and Hol- terhoff to work. That procedure required observance of the employment list in referring glaziers to the Employer and, also, it required that glaziers receive referrals. Morrow and Holterhoff knowingly disregarded that pro- cedure; they circumvented it by securing work with the Employer and by commencing work after being told that they could not receive referrals because the Employer had not requested that glaziers be referred and because the list would be followed in making referrals. As a result, they furnished Respondent with sufficient cause to demand that they cease working for the Employer. That Trosclair may have "welcomed the opportunity to [make that demand] does not make it discriminatory and there- fore unlawful." Klate Holt Co., 161 NLRB 1606, 1612 (1966). For, as illustrated by the absence of an allegation in the complaint respecting an unlawfully motivated demand for the cessation of work by these two glaziers at Resolution Plaza, a preponderance of the evidence "demonstrate[s] that the decision would have been the same in the absence of protected activity." Wright Line, 251 NLRB 1083, 1087 (1980), enf.'d. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). However, a different result is warranted with regard to the penalties imposed on Morrow and Holterhoff for having accepted employment with the Employer. Ordi- narily the Board will not scrutinize penalties imposed upon employees who attempt to circumvent hiring halls. However, it will do so where penalties are imposed for reasons illegitimate under the Act. Boilermakers Local 40 (Envirotech Corp.), 266 NLRB 432, 433 (1983); Long- shoremen's Local 1408 v. NLRB, 705 F.2d 1549 (11th Cir. 1983). Here, a preponderance of the evidence supports the allegation that, in effect, Trosclair seized on Morrow and Holterhoffs conduct as a springboard for retaliation proscribed by the Act. Respondent's records show that employees have regu- larly been charged with violating Respondent's bylaws by accepting employment without First securing referrals. However, there is no evidence that any officer or panel, other than the trial board, ever imposed penalties against those employees. Nor is there evidence that any employ- ees whose cases were considered by the trial board, ever suffered the penalty of being barred from employment with a particular employer nor at a particular site. To the contrary, by its very terms, bylaw 78 imposes no penalty other than internal charges and discharge for its violation. But here Trosclair went beyond that provision: on his own, he barred Morrow and Holterhoff from future employment at Resolution Plaza. Trosclair claimed that as business manager he had pos- sessed inherent authority to impose penalties and, in fact, had done so in the past. But he was not able to describe a single, specific instance, nor even the name of a single employee involved in any incident, where Respondent's business manager, rather than its trial board, had imposed such a penalty-or, for that matter, any penalty on an employee. Nor did Trosclair identify with any specificity the source of Respondent's business manager's purported inherent authority to impose penalties on employees for violating the bylaws. To the contrary, Respondent's records show that the only procedure followed in such cases had been for internal charges to be filed and for the trial board to conduct a hearing to determine if pen- alties should be imposed. In the final analysis Trosclair never did testify precise- ly why he had selected a bar from further employment as the penalty to impose in this situation. Nothing in the record supports a conclusion that employees discharged from a site pursuant to bylaw 78 are ordinarily then barred from further referral to that site. The record dis- closes no unusual circumstances requiring Trosclair to preempt that bylaw and take extraordinary action against Morrow and Holterhoff. One could speculate that Tros- clair acted as he did because of the flagrancy displayed by Morrow and Holterhoff in starting work after having been told that they could not do so. But, "Board law does not permit the trier of fact to substitute his own subjective impression of what he would have done were he in Respondent's position." Super Tire Stores, 236 NLRB 877 fn. 1 (1978). Trosclair did not testify that the flagrancy of Morrow and Holterhoff's conduct had moti- vated him to erect the bar against referral to Resolution Plaza. Even were I disposed to find that the flagrancy of the two glaziers' conduct could warrant extraordinary action by Respondent's business manager, "[a] judge's personal belief that . . . legitimate reason was sufficient to warrant the action taken is not a substitute for evi- dence that Respondent would have relied on this reason alone." Delta Gas, Inc., 282 NLRB 667 (1987). It is clear that Trosclair disliked Morrow. So far as the evidence shows, the sole reason for that animosity had been Morrow's protected action aimed at correcting what he perceived as Trosclair's improper actions as business manager. "We do not believe that the intent or purpose of the amended Act is to foreclose employees from questioning the wisdom of their representatives or from taking such steps as they deem necessary to align their union with their position." Nu-Car Carriers, 88 NLRB 75, 76 (1950), enfd. 189 F.2d 756, 760 (3d Cir. 1951), cert. denied 342 U.S. 919. See also Lummus Co. v. NLRB, 339 F.2d 728, 733-734 (D.C. Cir. 1964). Holterhoff claimed that he too had incurred Tros- clair's hostility as a result of intraunion disagreements. Trosclair denied having been antagonistic toward Holter- hoff. However, this is a disagreement that need not be resolved. Trosclair admitted believing that Holterhoff was "being led." He did not identify a leader and the only one suggested by the evidence is Morrow. Action against Holterhoff based on a belief that he had been fol- lowing Morrow's leadership in protected activity violates the Act. See, e.g., Henning & Cheadle v. NLRB, 522 F.2d 1050, 1052 (7th Cir. 1975), and cases cited therein. More- over, since Holterhoff and Morrow acted together in ac- cepting employment and working at Resolution Plaza, it simply would not have been possible to take action against one without also taking it against the other as well. Action against Holterhoff intended to validate or vindicate retaliatory action taken against Morrow would PAINTERS LOCAL 1140 (HARMON CONTRACT) 737 violate the Act See e g Armcor Industries 217 NLRB 358 (1975) In the instant case Trosclair disliked Morrow because of the latter s protected activity Because Morrow and Holterhoff had begun working for the Employer without having obtained referrals Trosclair barred them from further employment at Resolution Plaza There is no evi dence of such a penalty having ever been imposed by Respondent There is no evidence that Trosclair or any other business manager of Respondent, as opposed to the trial board, ever had imposed a penalty against a member of Respondent The record discloses no valid reason that might have justified Trosclair's preemption of the trial board in this instance He advanced no reason for having decided to select the penalty of barring referral to Reso lution Plaza Therefore, a preponderance of the evidence warrants the conclusion that Trosclair used the fact that Morrow and Holterhoff began work for the Employer as a springboard for retaliation because of protected activi ty A somewhat closer question is presented by the in traunion charges filed against Morrow and Holterhoff by Linenschmidt Certainly, it was not unprecedented for internal charges to be filed against employees for having failed to secure referrals before commencing work How ever it is unprecedented for Linenschmidt to have done so Indeed he had never filed a charge of any type against any of Respondents members In assessing alle gations that conduct directed against employees had been unlawfully motivated the crucial inquiry must be direct ed to the state of mind of the official who had made the decision to effectuate that conduct Advanced Installa tions However, Respondent did not call Linenschmidt as a witness to explain why he had selected this occasion as the one for him to first file charges against members Nor did Respondent explain why it had not called him to make that explanation He remained an agent of Re spondent at the time of the hearing Respondent did not contend that it could not have issued a subpoena to ensure that he would be present to testify In these cir cumstances, it may be inferred that [Linenschmidt], if called, would have testified adversely to Respondent on [this] issue International Automated Machines, 285 NLRB 1122 1123 (1987) As concluded above Trosclair had been unlawfully motivated when he had barred Morrow and Holterhoff from dispatch to Resolution Plaza At the same time that they were notified of that fact, they were also notified of the internal charges preferred against them by Linensch midt Trosclair admitted having conferred with Lin enschmidt regarding preparation of those charges While Trosclair claimed that he had rendered only ministerial assistance to Linenschmidt, the latter did not appear to corroborate that claim nor to explain why he had chosen to file charges against the two glaziers In these circumstances the General Counsel has established a prima facie case and Respondent has presented no credi ble evidence to rebut it Therefore a preponderance of the evidence established that the filing of these charges had been unlawfully motivated and violated Section 8(b)(1)(A) and (2) of the Act CONCLUSIONS OF LAW By barring Bennie Morrow and Gerald Holterhoff from referral to Harmon Contract Glazing Inc s Resolu tion Plaza project and by filing internal charges against them in retaliation for protected activity, Painters Local Union No 1140 of the International Brotherhood of Painters and Allied Trades, AFL-CIO violated Section 8(b)(1)(A) and Section 8(b)(2) of the Act and committed unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act REMEDY Having found that Painters Local Union No 1140 of the International Brotherhood of Painters and Allied Trades, AFL-CIO engaged in certain unfair labor prac tices, I shall recommend that it be ordered to cease and desist therefrom In addition it shall be ordered to take certain affirmative action to effectuate the policies of the Act, including removing from its files all reference to the internal union charges filed against Bennie Morrow and Gerald Holterhoff in September 1986 It shall also be or dered to make Morrow and Holterhoff whole for any loss of pay they may have suffered because they were unlawfully barred from further employment with Harmon Contract Glazing Inc at Resolution Plaza 6 on and after September 4, 1986' Backpay shall be comput ed on a quarterly basis, making deductions for interim earnings, F W Woolworth Co 90 NLRB 289 (1950), and interest shall be paid on the amount owing as com puted in New Horizons for the Retarded, 283 NLRB 1173 (1987) 8 [Recommended Order omitted from publication ] 8 Inasmuch as the employment bar extended only to that project and in view of the fact that the project was concluded in March 1987 there is no issue presented concerning efforts to have Morrow and Holterhoff re employed there by Harmon Contract Glazing ° It is clear that but for Trosclair s action Holterhoff would have been dispatched in September to Resolution Plaza A similar conclusion is not warranted regarding Morrow who was registered much lower on the employment list However there might have come a later time when he would have been referred there in the ordinary course Whether or not that is so can be resolved in the compliance phase of this proceeding See e g NLRB v Stage Employees IATSE Local 776 303 F 2d 513 521 (9th Cir 1962) cert denied 371 U S 826 The General Counsel also seeks inclusion of a visitatonal provision in the remedial order However the Board has not ordinarily provided for inclusion of such a provision as a remedy nor has it formulated any guidelines for inclusion of such provisions in remedial orders Moreover nothing in this case appears to give rise to the concerns that would war rant inclusion of such a provision Accordingly I deny the General Counsel s request for its inclusion as part of the remedial order 8 Under New Horizons interest is computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amendment to 26 U S C Sec 6621 Interest accrued before 1 January 1987 (the effective date of the amendment) shall be computed as in Florida Steel Corp 231 NLRB 651 (1977)