Laborers Local 1140 (Plibrico Sales)

LABORERS LOCAL 1140 (PLIBRICO SALES) 883 Laborers' International Union of North America, Local No. 1140 (Plibrico Sales & Service Co., Inc.) and Savino DeSantiago. Case 17-CB-3430 June 30, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On January 25, 1989, Administrative Law Judge David G. Heilbrun 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 briefs and has decided to affirm the judge's rulings, findings, I and conclusions and to adopt the recommended Order as modified.2 AMENDED CONCLUSION OF LAW Delete Conclusion of Law 4 and renumber the remaining paragraph. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Laborers' International Union of North America, Local No. 1140, Omaha, Nebraska, its of- ficers, agents, and representatives, shall take the action set forth in the Order as modified. 1. Delete paragraph 1(b) and reletter the subse- quent paragraphs. ' The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect . Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cit. 1951). We have carefully examined the record and find no basis for reversing the findings. The Respondent's exceptions contend that the record reveals the reason the Union insisted DeSantiago and Colton be laid off was because their working in Omaha, Nebraska, was impermissible as long as they were on the Council Bluffs, Iowa register . The Respondent suggests, however, that DeSantiago and Colton could have worked in Omaha if they had notified the Respondent. In addition to the reasons the judge enumerates for finding the Respondent violated the Act by causing the discharges, we specifically observe that the record does not support the Union's contention. In fact, the record indicates the Respondent was aware of other occasions on which Council Bluffs members had worked in both Nebraska and Iowa, and the Respondent had not disciplined the members on these occasions. The Respondent failed to present evidence that the employers or members had provided notification 3 The Respondent excepts to the judge's finding that the Respondent was "maintaining and operating its exclusive hiring hall in a discriminato- ry manner." The complaint does not contain such an allegation , and the General Counsel did not raise the issue at the hearing We therefore do not adopt the judge's finding of this violation. We shall modify the judge's Conclusion of Law, recommended Order, and notice accordingly. 2. Delete paragraph 2(a) and reletter the subse- quent paragraphs. 3. Substitute the attached notice for that of the administrative law judge. 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 cause or attempt to cause the dis- charge of Savino DeSantiago, Larry Colton, or any other individual because that person is in disfa- vor for protesting closure of our Council Bluffs branch office. WE WILL NOT inform Council Bluffs -resident members that they will lose work opportunities be- cause they are in general disfavor with our offi- cials. WE WILL NOT in any like or related manner re- strain or coerce employees or applicants for em- ployment in the exercise of rights guaranteed to them in Section 7 of the Act. WE WILL make whole Savino DeSantiago and Larry Colton, with interest, for any loss of earn- ings they suffered by reason of job discrimination against them on September 10, 1987. WE WILL notify DeSantiago, Colton, and Pli- brico Sales & Service Co., Inc., in writing, that we have no objection to their employment as laborers. LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, LOCAL No. 1140 Naomi L. Stuart, Esq., for the General Counsel. David D. Weinberg, Esq. (Weinberg & Weinberg, P.C.), of Omaha, Nebraska, for Respondent. DECISION STATEMENT OF THE CASE DAVID G. HEILBRUN, Administrative Law Judge. This case was tried at Omaha, Nebraska, on May 19, 1988. The charge was filed by Savino DeSantiago September 16, 1987, and an amended camplaint was issued January 13, 1988 . The primary issue is whether Laborers' Interna- tional Union of North America, Local No. 1140 (Re- spondent), attempted to cause and caused Plibrico Sales & Services Co., Inc. to discharge employees DeSantiago and Larry Colton because of their internal union activi- ties and place of residence, in violation of Section 8(b)(1)(A) and (2) of the National Labor Relations Act. 295 NLRB No. 87 884 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On the entire record, including my observation of the demeanor of witnesses, and after consideration of briefs filed by General Counsel and Respondent , I make the following FINDINGS OF FACT 1. JURISDICTION Plibrico Sales & Service Co., Inc. is a Delaware cor- poration with an office and place of business in Omaha, Nebraska, where it is engaged in the building and con- struction industry. During the 12-month period ending October 31 , 1987, Plibrico purchased and received prod- ucts, goods, and materials valued in excess of $50,000 di- rectly from points outside the State of Nebraska, while selling and shipping products , goods, and materials valued in excess of $50,000 directly from its Nebraska fa- cility to points outside the State. On these undisputed facts I find that Plibrico Sales & Service Co., Inc. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and, as admitted, I find that Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Outline of the Situation Respondent is a constituent of Laborers' International Union of North America, with a geographical jurisdic- tion within the States of Nebraska and Iowa as assigned by the parent organization . Omaha and Council Bluffs are cities in Nebraska and Iowa, respectively , each situat- ed on an opposite bank of the Missouri River and sepa- rated from the other only by this waterway . Respond- ent's territorial coverage is the general metropolitan area formed by this configuration, plus a large surrounding vi- cinity. Respondent's main office is in Omaha, while for many years it has maintained a branch office in Council Bluffs. These locations had respectively served membership needs of the approximately 600 persons in and around Omaha, plus those on the Iowa side estimated variously as from 38 to 108 persons . The Council Bluffs facility was closed for economy reasons in June 1987 . Each loca- tion had traditionally maintained separate "out of work" lists for their respective sides of the river. Irrespective of their State of residence, members of the local could sign either list, but not both. Such lists related to the exclu- sive hiring hall of Respondent's standard contract with employers. As continuingly effective from the labor agreement of 1983-1986 , pertinent language here read: The Union shall be the sole and exclusive source of referrals of applicants for employment and said referrals shall be on a non-discriminatory basis, not based on or affected by Union membership, by- laws, rules, regulations, constitution or any other aspect of union membership, policies or require- ments, and the Employer agrees to use the Union exclusively for this purpose. (a) In selecting applicants, the Union shall refer applicants according to the following priority. 1. Those requested by name who have previ- ously worked for the Employer in the [Union's geographical jurisdiction]. (e) When resuming work not completed due to winter shutdown, in the calendar year after the winter shutdown, the Employer may, at his discre- tion, recall the workmen who were on such work on the date it was shut down the previous construc- tion season . The Employer agrees to call the Union and furnish the Union the names and addresses of the men to be recalled pursuant to this Article, two (2) days before the day they are to be put to work. (f) Except in cases of emergency and in the case of men employed pursuant to sub-section "e", the Employer will give the Union notice of its needs for workmen and for a twenty four (24) hour period after said notice will not hire men not referred by the Union unless the Union has previously notified the Employer that men are not available. Other- wise, the Employer may consider the request can- celled and hire persons not referred by the Union. (g) If either party shall deviate from the proce- dures herein described and such deviation shall result in any damages or penalties being assessed against the other, and such deviation is caused solely and proximately by said party, it agrees to hold the other harmless against said damages or penalties. DeSantiago is a lifelong Council Bluffs resident, and has held membership in Respondent for roughly 13 years. He led an unavailing protest of the branch office closing, while also working various jobsites, both in Iowa and in Nebraska, during the summer months of 1987. On Sep- tember 10, 1987 he was terminated during the second day of employment at a Nebraska jobsite, and this pro- ceeding against Respondent relates chiefly to that event. B. Basis of Analysis Henry Frank (Butch) Schaefer II has been Respond- ent's business manager and financial secretary for a cur- rent term that commenced on January 1, 1988. During 1987 he was assistant business manager and for about 14 years previous to that served as a business representative of Respondent with typical duties of a union official re- lating to contract negotiation and administration.I Larry Lewis had been the Council Bluffs-based busi- ness agent for over 7 years, and in charge on the Iowa side. The closing was to require his layoff, and was re- flected in the following letter dated June 11 from Lewis to all Council Bluffs members: Due to the financial difficulties that have plagued your Local since the Reagan administration, we have no other choice but to close the Council Bluffs office effective June 15, 1987. To answer a few questions you all will be asking: I All dates and named months hereafter are in 1987, unless otherwise indicated LABORERS LOCAL 1140 (PLIBRICO SALES) 885 1. Your dues will be payable at the Omaha office P.O. Box 34549 Omaha, NB. 68134. 2. The work list will still be maintained and will be called by phone for the Council Bluffs members. 3. If a contractor needs employees for the Coun- cil Bluffs area the Omaha office will dispatch these employees off this work list by the phone, to save transportation cost to you. I personally have enjoyed working with each and everyone of you for the past 7 years and hope by the end of this summer to do it again. If there is any further questions please feel free to call the Omaha office between 7:00 a.m. and 5:00 p.m. at 572-0826 and ask for Leonard. I wish each and everyone of you the best in the future. culated, and a supporting petition with 50 signatures was obtained. The letter emphatically and repeatedly de- plored loss of Lewis as the conveniently local servicing official for Council Bluffs members for more than the past 7 years. The letter was promptly forwarded. In the telephone conversation Mazza had assured that he would dispatch an emissary to investigate the situa- tion. In early July this was fulfilled, when International Representative Terry Healey met with DeSantiago and other members at Council Bluffs . Healey's explanation that Lewis would remain as business agent for the locale ..on an unpaid volunteer basis" until reversion in Septem- ber was tolerably received at the time . Meanwhile, other dynamics caused International Representative Warren Miller to also look into the closing. By letter dated July 27 he advised Mazza as follows: The official decision to close Council Bluffs as a branch is traceable to action of Respondent's Executive Board on June 9. According to minutes of the meeting held this date, Leonard Schaefer reported in detail on the financial burden of maintaining the branch, especially with a greatly reduced number of dues-paying members as compared with a peak about 20 years back. The exec- utive board approved the closing in principle , and at its subsequent meeting on July 14 ratified an entire cost-cut- ting plan for the local which included a secretarial layoff and pay reductions for remaining personnel . Another economy decided on about this time was the layoff in early July of Omaha-based Business Agent Dan Prouch- nau to match the situation of Lewis. In closing down the Council Bluffs branch Lewis transmitted an existing out-of-work list to Henry Schae- fer, who testified that over the balance of 1987 he and other functionaries at the Omaha office added names of Council Bluffs members in handwriting when they re- quested a place. This practice terminated on January 4, 1988, when a consolidated out-of-work list for the entire local was begun . A second document transferred to Henry Schaefer by Lewis in June was the running job referral record for Council Bluffs members organized by contractor heading. DeSantiago learned of the full impact from planned economy measures on or about June 15,2 and on that same day telephoned to Leonard Schaefer , Respondent's Omaha-based business manager at the time and father of Henry Schaefer. Leonard Schaefer advised him in this telephone conversation that the local's finances would not permit continued operation of the Council Bluffs branch. Not satisfied with this explanation, DeSantiago soon telephoned Joseph Mazza, regional manager for the International Union at Chicago. This official asked that any complaint about the situation be put in writing. De- Santiago achieved this by means of organizing a week- end meeting, assisted in the process by fellow Council Bluffs member Larry Colton, also a lifelong resident there. At this gathering of several dozen Council Bluffs members the draft of DeSantiago's protest letter was cir- 2 On occasions in his testimony DeSantiago mistakenly recalled the date of June 15, 1987, as being a Friday. Relative to your memorandum dated July 1, 1987 in regards to the above, please be advised that I conducted a preliminary investigation of the com- plaints of the Council Bluffs, Iowa members of Local 1140. The closing of the Council Bluffs office and the lay-off of the Business Agent occurred be- cause of the financial condition of Local 1140, and three weeks later another Business Agent in Omaha was laid off due to the same conditions. The complaint letter stated that there are 120 building trades laborers in Council Bluff,4act about 40, 60 industrial members, fact 38 , fact 3'3 retirees. Omaha members being dispatched to jobs in Coun- cil Bluffs instead of Council Bluffs members, fact (5) five Omaha members dispatched to Council Bluffs for an asbestos removal job, because Council Bluffs members who were out of work did not have a li- cense and certification. The surplus money in the Holiday Trust Ac- count, which is a joint Labor-Management Ac- count. Management trustee are dragging their feet as to ways to use this money. Local 1140 does not own any property, the prop- erty is owned by Construction Labors Building Corporation, a non-profit organization. Fact, Leonard Schaefer offered on June 12, 1987 to meet with Vino DeSantago, and any other mem- bers at any time, or any place as to the reasons of closing the Council Bluffs office and the lay off of Larry Lewis, to which he has not received a re- sponse. The petition signed by members of Council Bluffs was taken off job sites and at members homes, who signed what they thought to be a petition to keep Council Bluffs office open and did not know about the contents of the letter. Commencing on a Monday in mid-June, DeSantiago was employed on a school job for ARC that lasted ap- proximately 7 weeks. In the course of this time the job superintendent requested him to contact the union hall for additional employees. DeSantiago called Lewis on the matter, who routinely assured that he would take care of it. Soon after this Henry Schaefer telephoned to the jobsite and it happened that DeSantiago answered 886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the call . He testified that when Henry Schaefer learned he had reached DeSantiago directly he abruptly said, "What the fuck you trying to do . . . about getting more men." DeSantiago asserted that he answered by explain- ing how his call had been made to Lewis because of an understanding that Lewis remained , as a practical matter, the business agent for Council Bluffs -side members. De- Santiago testified that in Henry Schaefer 's further re- marks to this explanation he said , "Fuck the Council Bluffs members, and I can tell you that anybody who signed the petition will not ever get out of the hall again." Henry Schaefer recalled having conversation with DeSantiago "once or twice" around the time that Council Bluffs closing was an issue, however he denied ever stating that Council Bluffs residents or petition-sign- ers would be denied so referral for employment. Henry Schaefer testified instead that his remarks were confined to assuring that the closing would not mean Omaha members would suddenly monopolize available jobs on the Iowa side. General Counsel also presented Council Bluffs member Donald Jones as a witness . Jones corroborated DeSan- tiago with respect to plans for how to use Lewis over the summer months that Healey had projected. Jones also testified that during July he had telephoned Re- spondent's office inquiring about work prospects. This contact resulted in conversation with business agent and president(of the local Norman Sunderman, who after ex- plaining that the field was "real slow" added that "Vino [DeSantiago] should have come to me and got some facts straight before he sent that letter to the Internation- al," and that "he probably won't work out of this hall again." Sunderman completely denied such testimony of Jones. After layoff from the midsummer job with ARC, De- Santiago was recalled to employment by Plibrico. He had worked for this firm over an approximate 2-month period early in 1987 at a jobsite of Iowa Power and Light. The recall in late July was for only 2 weeks at Griffin Pipe in Council Bluffs under Sinclair Scott, a now-retired job foreman and superintendent for Plibrico. This was followed almost immediately by short stints of employment for Plibrico at Offutt Air Force Base and Omaha Public Power District (OPPD), both in Nebras- ka. The call for OPPD was from Scott directly, and for what was to be possibly 3 days work for two laborers starting September 9. Colton was also called to this OPPD job, and DeSan- tiago worked uneventfully with him on September 9. DeSantiago testified that around morning breaktime on September 10, Henry Schaefer and Prouchnau appeared at the jobsite and attempted to speak confidentially with Scott. 3 However, DeSantiago's duties kept him within hearing range most of the time, and he testified to hear- ing Henry Schaefer tell Scott that, referring to himself and Colton, "These two men gotta go." DeSantiago re- called how Scott protested on their behalf, but that Henry Schaefer insisted on them being immediately re- 3 Henry Schaefer testified that although `officially on layoff' Prouch- nau was still instrumental in operating Respondent's referral system during September by coming in mornings. placed "with two Omaha men" because "they live in Council Bluffs" which is why they must "stay in Council Bluffs." Both Colton and Scott corroborate the essentials of this testimony, with Scott in particular testifying that Henry Schaefer said the two he was after "don't have a right to work over here." Additionally, Henry Schaefer's insistence was that they leave the job by noon, and from this both DeSantiago and Colton were paid off for the half day while two Omaha-domiciled members of Re- spondent were sent out in replacement . This conclusion of the episode was also generally recounted by Ray Otter, Plibrico's office manager to whom Scott had re- ported the affair, and who had telephoned Henry Schae- fer for any available clarification of the "problem" that had arisen. DeSantiago, Colton, and Jones all soon surfaced back at the Iowa Power and Light job of Plibrico in Council Bluffs, and while working there Jones had occasion to report the employment to Henry Schaefer . While noth- ing was said immediately , Jones testified that Lewis called him back that same day, it now being on or about September 17, to state that Sunderman had just attempt- ed to have Lewis and other union functionaries run off the members who had "hustled" their own job. In fact, nothing more came of this apparent intention. Henry Schaefer testified concerning his visit to the OPPD jobsite on September 10. He characterized his contact with Scott only as advice that the contractual hiring hall provision had been "circumvent[ed]," and he would like to see some action to cure the departure from an employer's obligation to give "proper notification" to the Local of its call-back procedure. C. Contentions General Counsel contends that an unlawful breach of Respondent's fair representation duty has been shown by; (1) discrimination based on members' protected in- traunion activities, (2) discrimination on the arbitrary basis of members' residency, (3) failure to provide mem- bers with adequate notice that referral system rules had been newly promulgated to be enforced, and (4) failure to provide objective criteria in regard to requesting re- moval of employees from a jobsite . Additionally, Gener- al Counsel contends that utterances of Henry Schaefer and Sunderman were, at the times and circumstances about which credibly testified, independently violative of Section 8(b)(1)(A). Respondent contends primarily that on the evidence in the record as a whole, the only showing is that of Re- spondent attempting to have Plibrico comply with hiring hall provisions set forth in the collective-bargaining agreement. Respondent believes the real significance of events on September 10 was that the employer's agent was informed only that neither individual in question had a right to be working in Nebraska without clearance through the Omaha hiring hall list. The denial of certain attributed statements is pointed to as consistent with "no action . . . ever taken" by an official of Respondent that would be a refusal of employment referrals . Additionally, Respondent alleges that both DeSantiago and Colton were in violation of their membership duty and obliga- LABORERS LOCAL 1140 (PLIBRICO SALES) tion by reporting to work without notification to the local or even going through its hiring hall. D. Credibility DeSantiago, Colton, and Jones were all candid-seem- ing and possessed of convincing recollections. Witness Jack DeVault, who attributed a statement of hostility toward DeSantiago by Henry Schaefer during a conver- sation at Respondent's Omaha office in September, ap- peared totally unbiased and honestly recounting what was said to him. Scott was a particularly disinterested witness, and this makes his impressively assured testimo- ny even more vivid as he recalled being told to "let go" both targeted employees when Henry Schaefer and Prouchnau visited the jobsite together. In contrast, Respondent's chief witness Henry Schae- fer did not present acceptable testimony. His version of episodes, remarks and claimed utterances persuades me to largely discredit him. There was little appearance of truth or accuracy in Henry Schaefer's recollections, and even his description of what he had said to Scott at the jobsite on September 10 does not really fit Respondent's contentions about this incident. I discredit Sunderman on general grounds of demeanor, and particularly his re- signed and weakly evasive explanations of various hiring hall procedures, policies and practices. E. Analysis The Board has consistently guarded persons aspiring to construction industry employment from arbitrary bars to job opportunity or discrimination against them in the operation of hiring halls. The phenomenon of an exclu- sive hiring hall, as uncontestedly present here, has U.S. Supreme Court approval where this servicing activity does not accomplish any encouragement or discourage- ment of union membership by discrimination . Teamsters Local 357 v. NLRB, 365 U.S. 667 (1961). Consistent with this rationale, it is settled that a labor organization vio- lates both Section 8(b)(1)(A) and (2) of the Act where it discriminatorily interferes with an individual's prospect for working under an exclusive referral system. See Plumbers Local 121, 223 NLRB 1250 (1976); Electrical Workers 1BEW Local 675 (S & M Electric), 223 NLRB 1499 (1976); Teamsters Local 174 (Totem Beverages), 226 NLRB 690 (1976). The Board has recently reiterated its view that oper- ation of an exclusive hiring hall requires that the labor organization having such dominion display a fair and im- partial manner in representing all the individuals whose employment hinges on utilization of that hall. Cell-Crete Corp., 288 NLRB 262 (1988). Here, the credited evidence first shows a specific dis- criminatory intent being harbored by Respondent's rep- resentatives. Letters written to International Union offi- cial Mazza, the highly critical one from DeSantiago and Miller's in complete contradiction , show a definite inten- sity to the Council Bluffs dispute and fixedly opposing viewpoints . The situation was not, as Sunderman assert- ed, merely a "personal thing" between DeSantiago and the Schaefers. Instead, there is adequate proof from Henry Schaefer's coarse and bellicose utterances made 887 by telephone to DeSantiago around July that his resent- ment over this member's role in opposing the Council Bluffs office closing would translate into banishment of all such protesters from benefits of the hiring hall. The fact that Sunderman, a closely positioned colleague of Henry Schaefer at the Union's Omaha office, made a comparable intimation when conversing by telephone around the same point in time with member Jones serves to buttress this fundamental showing of unlawful animos- ity awaiting some expression. Sheet Metal Workers Local 16 (Parker Sheet Metal), 275 NLRB 867 (1985). The opportunity was presented in September at the OPPD jobsite, and Henry Schaefer plainly fulfilled his stated purpose by a direct demand against the neutral employer that DeSantiago and his aligned coworker Colton be immediately dismissed . Cf. Ohio Valley Carpen- ters District Council (Catalytic, Inc.), 267 NLRB 1223 (1983). The act of causing or attempting to cause an em- ployer to discriminate in a manner necessarily itself also violative of Section 8(a)(3) of the Act is the exact con- duct made unlawful under Section 8(b)(2). See Carpenters Local 1016 (Bertram Construction), 272 NLRB 539 (1984). Beyond this the alternate theory of an 8(b)(2) violation is also shown . The contractual language applicable here does not by any fair meaning of its words require notifi- cation from either employer or employee when periodic recalls of particular individuals are repeatedly made by the same employer according to its random needs. Noth- ing about DeSantiago's 1987 employment history trig- gered the "winter shutdown" language of article I,(5),e, and overall passages of pertinent article I are structured in such a way that sporadic recalls of persons familiar to an employer operating in the area do not even necessari- ly require notification to Respondent. Further, Respond- ent's witnesses did not effectively clarify the distinction in meaning or application of the 2-day notice feature contained in subsection e of article I and the 24-hour notice of subsection f. The entire notification topic amounts to an unconvincing attempt at explaining away Henry Schaefer's otherwise unlawful demand . See Oper- ating Engineers Local 406 (Ford, Bacon & Davis Construc- tion), 262 NLRB 50 (1982). Respondent's hiring hall records, while better than fragmentary , are nonetheless incomplete, irregular, and generally insufficient to estab- lish any consistent requirement of notice to the Union's office when job recalls were made within its territorial jurisdiction but without reference to whether in Iowa or Nebraska. Cf. Carpenters Local 316 (Bay Counties Con- tractors), 291 NLRB 504 (1988). The point is best exem- plified by Sunderman's testimony in conceding, as he did, that in the last analysis it was not always "necessari- ly true" that a notification practice was common or was enforced. This is an example of controlling doctrine that policy or practice changes must be legitimate and appro- priately communicated to users of the hiring hall. Cf. Teamsters Local 519 (Rust Engineering), 276 NLRB 898 (1985). DeSantiago was a habitual user of the hiring hall, both at the time Council Bluffs closed and when he rere- gistered in December . For this reason it is unavailing to argue, as Respondent does, that Scott's testimony of 888 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Henry Schaefer saying to him that the employees had no right to work "over here" (Nebraska) was based on any legitimate necessity of the Union as the law in this area would require. Cf. Painters Local 1555 (Alaska Construc- tors), 241 NLRB 741 (1979). It is instead the case that this conduct by Respondent's agent was simply "palpa- bly arbitrary." Cell-Crete Corp., supra. A final element of the amended complaint is its allega- tion that Henry Schaefer, while at his Omaha office, told employee DeVault that he had run Council Bluffs resi- dents off their jobs in Nebraska. This allegation is satis- factorily proven by DeVault's credible testimony, and it constitutes a separate, independent violation of Section 8(b)(1)(A). CONCLUSIONS OF LAW 1. Plibrico Sales & Service Co., Inc. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Laborers' International Union of North America, Local No. 1140 is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By causing or attempting to cause the discharge of DeSantiago and Colton, Respondent violated Section 8(b)(1)(A) and (2) of the Act. 4. By maintaining and operating its exclusive hiring hall in a discriminatory manner, Respondent violated Section 8(b)(1)(A) and (2) of the Act. 5. By informing employees that they are objects of ret- ribution in the operation of an exclusive hiring hall and referral system because they are in disfavor with Re- spondent, it coerced and restrained employees, members, job applicants, or registrants in violation of Section 8(b)(1)(A) of the Act. REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order Re- spondent to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Because Respondent unlawfully caused the discharge of DeSantiago and Colton, I shall recommend that Re- spondent be required to make them whole for any loss of earnings they may have suffered. Respondent's backpay liability shall be computed in accordance with the formu- la set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest thereon to be computed in the manner prescribed by New Horizons for the Retarded, 283 NLRB 1173 (1987). Disposition On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed4 4 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 ORDER The Respondent, Laborers' International Union of North America, Local No. 1140, its officers, agents, and representatives, shall 1. Cease and desist from (a) Causing or attempting to cause Plibrico Sales & Service Co., Inc., or any other employer, to unlawfully discriminate against Savino DeSantiago and Larry Colton, or any other individual, because that person is in disfavor with Respondent. (b) Operating its exclusive hiring hall in a discrimina- tory manner. (c) Informing employees that they are objects of retri- bution in the operation of an exclusive hiring hall and re- ferral system because they are in disfavor. (d) In any like or related manner restraining or coerc- ing employees in the exercise of rights guaranteed to them in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Operate its exclusive hiring hall in a nondiscrimina- tory manner. (b) Make whole Savino DeSantiago and Larry Colton, who were unlawfully discharged, for any loss of earnings they suffered, in the manner set forth in the remedy sec- tion of this decision. (c) Preserve and, on request, make available to the Board or its agents, for examination and copying, all records pertaining to employment through its hiring hall, and all records relevant and necessary for compliance with the terms of this Order. (d) Notify Plibrico Sales & Service Co., Inc., in writ- ing, with a copy to Savino DeSantiago and Larry Colton, that it has no objection to their employment. (e) Post at all its business offices, hiring halls, and meeting places copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by an authorized representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where no- tices to members are customarily posted. Reasonable steps shall be taken by Respondent to ensure that the no- tices are not altered, defaced, or covered by any other material. (f) Forward to the Regional Director signed copies of the notice for posting by Plibrico Sales & Service Co., Inc., at its Nebraska and Iowa offices and jobsites, if it is willing. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. Board and all objections to them shall be deemed waived for all pur- poses. 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."