Iron Workers Local 1709 ( E.I. Dupont & Co.)

IRON WORKERS LOCAL 1709 (E. I. DUPONT & CO.) Local 709, International Association of Bridge, Structural and Ornamental Iron Workers, AFL- CIO (E. I. DuPont DeNemours and Company) and Carl Lively. Case 10-CB-5204 August 21, 1989 DECISION AND ORDER BY MEMBERS CRACRAFT, HIGGINS, AND DEVANEY On March 27, 1989, Administrative Law Judge Frank H. Itkin 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 and to adopt the recommended Order as modified.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Local 709, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the Order as modi- fied. 1. Insert the following as paragraph 2(c) and re- letter the subsequent paragraphs. "(c) Preserve and, on request, make available to the Board or its agents, for examination and copy- ing, all hiring hall records, dispatch lists, referral cards, and other documents necessary to analyze 1 The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 ( 1950), enfd 188 F 2d 362 (3d Or 1951) We have carefully examined the record and find no basis for reversing the findings The Respondent 's exception to the judge's finding that Carl Lively's name should have been chronologically recorded a few pages earlier on the out-of-work list has merit . The record shows that it was the Respond- ent's practice to maintain separate listings of journeymen and apprentices seeking referrals. The out -of-work list at issue here was a four -page docu- ment that first listed all the journeymen and then the apprentices on page 4 Lively was an apprentice whose name , contrary to the judge 's finding, was in proper chronological order of apprentices on the last page of the out-of-work list . This error does not affect the outcome of the case 8 The judge's recommended Order failed to require the Respondent to make available to the Board its hiring hall records and related documents necessary to ensure compliance. In addition , the judge's recommended Order mistakenly directs the Respondent to notify the Regional Director within 28 days what steps it has taken to meet its compliance obligation The correct notification deadline is 20 days from the issuance of this De- cision and Order We shall modify the recommended Order accordingly 199 and compute the amounts of backpay due under the terms of this Order." 2. Substitute the following for relettered para- graph 2(e). "(e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply." Milton D. Jones, Esq., for the General Counsel. James T. Langford, Esq., for the Respondent. DECISION FRANK H. ITKIN, Administrative Law Judge. An unfair labor practice charge was filed in this case on June 24 and an amended charge was filed on August 8, 1988. A complaint issued on August 8, 1988 . General Counsel argues, inter alia, that Respondent Union violat- ed Section 8(b)(1)(A) and (2) of the National Labor Re- lations Act by refusing to allow Charging Party Carl Lively to review the Union's job referral list and by re- fusing to refer Lively for employment with E. I. du Pont DeNemours . Respondent Union denies violating the Act as alleged. A hearing was held on the issues raised in Augusta, Georgia, on January 19, 1989. Dn the entire record , including my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT Respondent Union is admittedly a labor organization and DuPont is an employer engaged in commerce as al- leged . The Union and DuPont, as stipulated , "maintain an understanding" that the Union will be "the sole and exclusive source of referrals" of journeymen and appren- tice ironworkers for employment with DuPont at its Sa- vannah River Plant site. On May 10, 1988, DuPont, pur- suant to this "understanding," requested in writing that the Union refer to the Savannah River Plant site four ap- prentices and six journeymen to start on May 18; three apprentices to start on May 31; one apprentice to start on June 6; and one apprentice and two journeymen to start on June 13. The estimated length of work for this project was 2 to 3 months. (See G.C. Exh. 2.) Lively was an apprentice member of the Union and admittedly occupied the second senior apprentice position on the Union's out-of-work list at the time. (See R. Exh. 22.) The Union asserts, inter alia, that Lively "would have been sent out" to fill one of these nine available appren- tice positions from about May 18 to June 13 but for its "claim that he was not reached on the telephone." (See Tr. p. 16.) The evidence pertaining to this sequence of events and the contentions of the parties is summarized below. On June 25 , 1986, Lively filed an unfair labor practice charge against the Union in Case 10-CB-4794. A com- plaint issued on August 8, 1986, alleging that the Union, since about May 13, 1986, failed and refused to refer Lively and other employees for employment with DuPont, the same employer involved in the instant case, in violation of Section 8(b)(1)(A) and (2) of the Act. As Union President and Business Agent Payton Ward Jr. 296 NLRB No. 33 200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD testified, that case was settled with the Union agreeing "to accept Lively into the apprentice program."1 There- after, from about October 27, 1986, until the events in issue here the Union offered Lively some seven referrals. (See R. Exhs. 4-8, 10, and 11 . See also R. Exh. 9.) Then, as noted above, on May 10, 1988, DuPont requested the referral of nine apprentices to start work from May 18 to June 13, 1988. The DuPont job was to last some 2 to 3 months and, as Ward acknowledged, "was a more desira- ble job for referral"-the DuPont jobs general "tend to be the longest lasting of all the job referrals." Lively testified that about April or May 1988 he heard that there "were some openings at the DuPont job"; that he then spoke with Union Business Manager and Finan- cial Secretary Edgar West at the union hall ; that he asked West "about the job" and "about seeing the out-of- work" book; and that West responded that he, West, "had somewhere to go and . . . nobody wasn't trying to pull no shit on" Lively. West made no mention to Lively at the time "that he was having a hard time contacting" Lively. Shortly thereafter, Lively met Union President and Business Agent Ward at the local bank. Lively also asked Ward "about a job" at DuPont and Ward respond- ed that "if we don't get no work . . . he'll be out of a job." Subsequently, in May, Lively again spoke with Ward, this time in the union hall. Lively recalled: I asked him [Ward] why I can't go to DuPont. Ward told me that they was not sending nobody to DuPont with my qualifications . He said that when we get something with your qualifications we'll try to send you out on a job . . . . He could not send me to DuPont because I was a fourth six-month ap- prentice and they [DuPont] only take first six- month apprentices. In short, Ward then told Lively that DuPont would not accept him because he had been an apprentice for four 6- month periods and DuPont would only accept lesser ex- perienced apprentices. Lively further testified that he again spoke with Ward at the union hall later in May. Lively recalled: I heard them talking about the people going to DuPont and the people they was sending to DuPont. . . . I asked Junior [Ward] . . . why they skipped over me. He just laughed . . . he said, "Carl, I told you when I get something then I'll send you with your classification." I asked him why he skipped me. I said, "Well Junior you know that y'all were wrong about it." He told me, "You done been to every court in Augusta; you done been to every court there is and you ain't won yet; you could go to every court all you want again...." Lively then asked Ward to see the Union's out-of-work book. Ward refused stating that "nothing ain't changed." Lively testified that he repeatedly telephoned the union hall in May and, as discussed below and the record shows, he also repeatedly visited the hall during this per- tinent time period. He was not referred to DuPont as one of the nine apprentices referred from May 18 to June 13, 1988. Lively further recalled talking to Ward again before an unfair labor practice charge was filed in this case. He then told Ward that coworker Kevin Childs, who did not occupy a position senior to Lively on the out-of-work list, had been sent to DuPont. Ward ex- plained that Childs was "just in his first six months" as an apprentice. Lively, however, later discovered that Childs was in fact a fourth 6-month apprentice. Kay Strickland is an employee relations specialist for DuPont. She placed the requisition for nine apprentices (G.C. Exh. 2) with the Union on or about May 13, 1988. Strickland explained that when she placed this requisition she made no request for any apprentices in a "certain period" of apprenticeship and, further, she did not re- quest any apprentices by name. She noted that the Union filled in the names when it made the referrals. And, Lucius T. Turner Jr., a craft superintendent with DuPont during the above time period, testified that he signed the May requisition (G.C. Exh. 2); that he did not "specify what period of apprentices should be" referred; and that he did not "specify any names." Turner, howev- er, acknowledged that he had in the past told the Union that he would "prefer" "first six-month apprentices" be- cause such less experienced apprentices did not have "bad safety habits" and "it's easier to get them cleared." Turner nevertheless acknowledged that this was just his personal preference and not the preference or policy of DuPont; the Union understood that it did not have to comply with this preference; and the Union has referred apprentices to DuPont who did not comply with this preference and they have been accepted by the Employ- er, as apparently occurred in the instant case.2 Union Business Manager and Financial Secretary West testified, as follows: Q. There was some evidence from Mr. Lively that you wouldn't let him see the [out-of-work] book? A. That ain't just Mr. Lively, that's standard practice for everybody. There's personal informa- tion in there and unlisted phone numbers, addresses and places of birth. At the Union hall you constant- ly get somebody coming in wanting to know where this one is; where that one is; what's his address; where is his phone number. There's personal infor- mation and we just don't make it available. We're not set up for that reason . We are set up to refer people to jobs. ' Ward noted that Lively also had filed another unfair labor practice charge against the Union which was "withdrawn " "earlier in 1988" "before the events that are involved in [the instant] case ." In addition, Lively had filed charges against the Union with the Equal Employment Opportunity Commission in 1985 and with the Richmond County Human Relations Commission in 1986 . These charges were withdrawn or dis- missed. See R. Exhs. 1. 2, and 3. 2 See also the testimony of former Union Steward Oscar Dozier con- cerning this so-called preference for less experienced apprentices (Tr pp. 142 to 154) Dozier, however, acknowledged that apprentice Kevin Childs was referred to and hired by DuPont as part of the above requisi- tion even though Childs was a third or fourth 6-month apprentice; no one objected, and the Employer "will take people who are beyond the first six-month stage" of their apprenticeships. IRON WORKERS LOCAL 709 (E. I. DU PONT & CO.) West, however, acknowledged that "this book" shows the "order of the people" listed ; "if you wanted to find out where you were on the list this would be what you would have to look at" or "you could ask the secretary"; "if you wanted to see it this would be the document"; and "that is the only sign -in that would have them in the right order." West further acknowledged that during a conversation with Board counsel before this trial he had stated "that the reason that some of the apprentices were sent out ahead of Lively [was] because they were [first] six-month apprentices" and DuPont "preferred [first] six-month ap- prentices." West added : "I also told you that one of the reasons that he didn't go was nobody could ever get in touch with him." West then explained : "I didn't make the phone calls"-"I understood that they tried to con- tact him." Although West assertedly would "have sent out" "all [first] six-month apprentices" to the DuPont job, and thus not even have attempted to refer Lively, he acknowledged that Ward, business agent and president of the Union, had "called the people on the list [R. Exh. 22] first" which list concededly included one or more ap- prentices who were not in their first 6-month stage. Union Business Agent and President Ward acknowl- edged in his testimony that "there is no dispute that Lively was qualified to go out on" the Dupont job; Lively was "about number 2 on the referral list during this time"; the Dupont requisition requested nine appren- tices; and "there is no question that Lively would have been sent out except for [the Union's] claim that he was not reached on the telephone." Ward concededly never attempted to first telephone and refer to Dupont "first six-month apprentices" in compliance with a so-called preference as recited above. Ward was asked if he had ..any face to face conversations with Lively in the Union hall" during May. Ward testified: I have spoken to him and the apprentice [s] during the course of the apprentice classes which is in the rear of the hall office. Lively visited the office one day and asked me why did I bypass him on a job or why did I cut him out of that job. I said "well, I did not cut you out of that job . I tried to make an effort to reach you by phone; there was no answer." He looked me dead in the eye and said "I'm not going to work on no job except DuPont." I said "[w]ell, Mr. Lively when I get a call from DuPont I will send you." Ward claimed that he never spoke to Lively about his classification as a fourth 6-month apprentice or told Lively that the DuPont job "called for a first six-month apprentice." Elsewhere, Ward claimed that "I've been told that DuPont requests or seeks first six-month ap- prentices" and "we try to abide by that request." Ward also denied speaking to Lively at a local bank "about any jobs"; however, he recalled meeting Lively at a local Counsel for the Union, in his posthearing brief, states: Mr. West testified that it was a general practice to deny access to the out-of-work book a practice later corroborated by Ward . . Local 709 has the out-of-work book available for inspection and it has been available since the conclusion of this trial 201 bank and having a brief conversation with him. Ward ad- mittedly spoke in person with Lively about two or three times in May. Ward was uncertain whether he also spoke to Lively on the telephone during this time period. Ward was asked if "Lively discussed with you .. . seeing the out-of-work book." Ward responded that Lively "never asked me to see the out-of-work list" and "if he would have asked [Ward] would have shown it to him"-"Mr. Lively has never asked me to see that book, no sir." Elsewhere, Ward testified that Business Manager West had told him that "it's in the best interest of us not to leave it exposed out for everybody to come in, IRS and various ones . . . that's confidential information .. . maybe one member wouldn't want another member to know his address ...." Further, Ward identified Re- spondent's Exhibit 28 to show, inter alia, that a contrac- tor in May 1987 did not want Lively to be referred to its jobs. See also Respondent's Exhibit 29, a grievance con- cerning the firing of Lively by an employer in January 1988. Elsewhere, however, counsel for the Union ac- knowledged that the Union is not claiming that Lively was not referred to DuPont "because he was not a suita- ble person to be referred" (Tr. p. 73).4 Roberta Wilson is a secretary employed by the Union. She answers the telephone, does the filing, receives dues, makes deposits, and writes referrals. She identified Re- spondent's Exhibit 22 as "a list of people out of work as of May 17, 1988 and later, until I make up another list." The dates recorded to the left of the listed names show when the members "signed in" as out of work . This list was started on May 17, 1988, with Wilson taking sign-ins before that date and recording them in chronological order. She would then add on later sign-ins. Thus, page 1 shows sign-ins from 1985 to 1987 . Page 2 continues with later 1987 and 1988 sign-ins. Page 3 continues with later 1988 sign-ins. Page 4 continues with later 1988 sign- ins, from July 15 to 26. At the bottom of page 4, under the heading "apprentices," Lively is listed as having signed in on January 14, 1988. Next to Lively's name and telephone numbers is the notation "no answer." Wilson claimed, as noted above, that she prepared Re- spondent's Exhibit 22 on May 17, 1988, and "then as the people come in then I keep adding the names to it." Lively, we are told, signed in on January 14, 1988, but his name appears on the bottom of the last page which records above his name later July 1988 entries . If Lively had signed in on January 14, 1988, his name should have been recorded a few pages earlier in keeping with the chronological nature of this document . Wilson testified: Q. Does that mean Mr. Lively entered himself or you entered him on the 14th? A. Correct; January 14, 1988. Q. Didn't you make that [entry] as an after- thought because if it would have been January 14, 4 See also the testimony of Joey Sparks concerning the incident result- ing in the firing of Lively in January 1988 (Tr . pp 129 to 142). Lively admitted that he had been fired from this particular job and , as noted, the Union is not claiming that it refused to refer Lively to DuPont for this reason 202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1988 it would have been somewhere in the body of the document? A. [No response.] Q. In other words, do you know when you put Mr. Lively on this document? A. No, I don't know when I put him-well, May 17th, on May 17th. Elsewhere, when asked by counsel for Respondent Union, "when were these names physically written down on this sheet of paper," she responded : "That's a good question-I don't know." Wilson was questioned at length about her efforts to contact Lively during the May and June 1988 time period. She was also questioned at length about Lively's visits to the union hall during this same period . She ad- mittedly had no "independent recollection of trying to call" Lively. She then identified Respondent's Exhibits 15-21 and 23-25 as her handwritten notes recording, inter alia, telephone calls to and from members as well as their visits to the union hall. She acknowledged that her notes are incomplete as to both telephone calls and visits by members. As she testified, "I don't make entries every day" and "if I am tied up [or] busy [or] on the telephone all day long I haven't got time to make entries." Wilson then observed that her notes for May 17, 1988 (R. Exh. 15), show two telephone calls to Lively with no answer. She further observed that her notes for May 27, 1988 (R. Exh. 16), show two telephone calls to Lively with no answer. She also observed that her notes reflect calls or attempted calls to Lively after the pertinent DuPont referral sequence. Elsewhere, however, she ac- knowledged that Lively, according to additional notes shown to her, came into the union hall on April 28, 1988, and paid his dues; that Lively came into the union hall on May 12, 1988; that Lively came into the union hall on May 19, 1988; and that Lively came into the union hall on June 2, 1988. She testified: Q. Do you remember saying anything to Mr. Lively such as "we have been trying to call you for job referrals and we can't get ahold of you Mr. Lively?" A. No, I don't remember saying that. She could not "remember" talking to Lively at "any time" on the telephone or in person.5 I credit the testimony of Lively as discussed above. He impressed me as a trustworthy and reliable witness. His testimony is substantiated in part by the credible and un- contradicted testimony of Strickland and Turner and by the uncontroverted documentary evidence of record. His testimony is also substantiated in part by admissions of West, Ward, Dozier, and Wilson. On the other hand, I find the testimony of West, Ward, Dozier, and Wilson to be at times vague, incomplete, shifting , and contradicto- ry. Insofar as the testimony of West, Ward, Dozier, and S Wilson elsewhere identified her notations on various referrals and at- tempted referrals to Lively from 1986 to 1988. See R. Exhs 4 through I I And, she contradicted West's testimony to the effect that "the only record out-of-work men was the big out-of- work book" claiming that R. Exh. 22, discussed above, is "another record." Wilson conflicts with the testimony of Lively, Strick- land, and Turner, I find on this record the testimony of the latter witnesses to be more complete, trustworthy and reliable. In particular, I reject as incredible the Union's assertion to the effect that it attempted to tele- phone Lively during May and did not refer him to the DuPont job because he could not be contacted. This record makes it clear that Lively repeatedly appeared at the union hall during May and June and the Union made no real effort to inform him of the available referrals. I also reject as incredible the Union's additional shifting and belated reasons for its failure to refer Lively to this highly desirable job because, assertedly, he was a fourth 6-month apprentice and DuPont did not want such an experienced apprentice; he was fired from a job and re- garded as not desirable by an employer; and he declined referrals or was not "ready and willing to go to work as an iron worker." (Tr. p. 90.) As discussed below, I find and conclude on this record that the Union failed and re- fused to refer Lively to the DuPont job principally be- cause he had filed charges with the Board in another case also involving a DuPont referral request, which case went to complaint and resulted in a settlement get- ting Lively into the Union's apprentice program.6 Discussion It is settled law that a union violates Section 8(b)(1)(A) of the National Labor Relations Act "when it arbitrarily denies a member's request for job referral information when that request is reasonably directed towards ascer- taining whether that member has been fairly treated with respect to obtaining job referrals." See Operating Engi- neers Local 825 (Building Contractors), 284 NLRB 188 (1987), and cases cited. It is also settled law that a union violates Section 8(b)(1)(A) and (2) of the Act when it re- fuses to refer a member for employment to which he is entitled pursuant to the union's hiring hall procedures and collective-bargaining agreements in retaliation for his filing unfair labor practice charges against the union. See Carpenters Local 720 (National Maintenance), 283 NLRB 617 (1987). Moreover, as the United States Court of Ap- peals for the Fifth Circuit restated in NLRB v. Teamsters Local 5, 778 F.2d 207, 212, 213 (5th Cir. 1985): A union serving as the exclusive bargaining rep- resentative of employees in a bargaining unit has a statutory duty to fairly represent all those employ- ees . . . . This statutory duty includes the duty to serve the interests of all members without hostility 6 1 note that Joey Sparks, a union member and foreman at a job where Lively was fired, testified about the particular incident resulting in the firing. See Tr pp 129 to 141. Although it is unnecessary for me to deter- mine here whether Sparks should be credited with respect to his version of the incident, the record makes clear that Sparks, a member of Re- spondent, has somewhat exaggerated the incident I note that Sparks became aware of the fact that Lively had filed charges against his union "when Carl first came on the job " I also note that the Union never cited this incident as a reason to Lively for its refusal or failure to refer him for work The Union , assertedly, would have later sent Lively to the DuPont job but for the fact he was not contacted on the telephone. See also the testimony of Nicks Arant (Tr. pp. 119 to 128) concerning Live- ly's later attempt to find other work with the county after the charge was filed in this case IRON WORKERS LOCAL 709 (E. I. DU PONT & CO.) or discrimination, to exercise its discretion in good faith and to avoid arbitrary conduct... . Thus, it is unlawful for a union to operate an ex- clusive hiring hall by discriminating among employ- ees for arbitrary and capricious reasons. The dis- crimination need not be based on an individual's union activities, or lack thereof . . . . The Board has held that discrimination in job referrals based on race, sex, or nepotism violates sections 8(b)(1)(A) and 8(b)(2) [of the Act]. In addition, referrals made without reference to objective criteria or standards are invalid. [Citations and footnotes omitted.] The record in the instant case shows that Respondent Union is the sole and exclusive source of referrals of journeymen and apprentice ironworkers for DuPont at its Savannah River Plant site. DuPont, on May 10, 1988, requested that the Union refer to this site four appren- tices to start work on May 18, three apprentices to start work on May 31, one apprentice to start work on June 6, and one apprentice to start work on June 13. DuPont jobs "tend to be the longest lasting" and consequently are "more desirable." Lively, at the time, was admittedly in the "number 2" apprentice position on the Union's out-of-work list. Lively, however, was not referred to any of these available apprentice positions during May and June. Lively had filed unfair labor practice charges against the Union in 1986 and a complaint had issued alleging that the Union had violated Section 8(b)(1)(A) and (2) of the Act with respect to referrals to DuPont, the same employer involved here. That case settled with the Union agreeing to admit Lively into its apprentice pro- gram. Later, in April or May 1988, when Lively first heard about the openings at the DuPont job, he repeat- edly asked the Union's representatives to send him to the job. As Lively credibly testified, he asked Business Man- ager West "about the job" and to see "the out-of-work book." West refused to show Lively the book stating in- stead that he "had somewhere to go" and "nobody was trying to pull no shit on" Lively. Lively repeatedly asked Business Agent Ward "about the job" also without success. Ward, on one occasion, told Lively that they could not send him to the DuPont job because he was a fourth 6-month apprentice and DuPont would "only take first six-month apprentices." The undisputed evidence of record makes it clear that DuPont would accept more experienced apprentices like Lively and in fact did at the job involved in the instant case . Lively asked Ward "why he skipped me" and Ward again cited Lively's classification. Lively faulted Ward for improperly "skip- ping" him and Ward responded: [Y]ou [Lively] done been to every court in Augus- ta; you done been to every court there is and you ain't won yet; you could go to every court all you want again. Lively again requested to see the "out-of-work book" and Ward refused stating that "nothing ain't changed." As Business Manager West acknowledged, "we just don't make it available" and "that is the only sign-in that would have them in the right order." Cf. Respondent's 203 Exhibit 22 and Secretary Wilson's testimony discussed above. The Union asserted that Lively "would have been sent out" to fill one of the nine available apprentice positions from about May 18 to June 13 but for its "claim that he was not reached on the telephone." The credible and un- disputed evidence of record shows that Lively repeated- ly visited and telephoned the union hall during this time period and was not told at any time that the Union was having difficulty contacting him. The Union asserted that Lively was in the wrong "apprentice classification." As noted, DuPont would have accepted a referral in Live- ly's classification and in fact did. The Union cited in- stances when Lively was not available for referrals, or when he was fired by an employer or when he was deemed unsuitable by an employer. However, the Union never denied Lively referrals after the above-cited in- stances because it deemed him unsuitable. In the instant case, Ward admitted that "there is no dispute that Lively was qualified to go out on the DuPont job." The Union cited instances where it had referred Lively for jobs; however, in the instant case, as in the earlier unfair labor practice case, the more desirable and longer lasting DuPont jobs were available. I reject these shifting and belated reasons asserted by the Union to justify its failure and refusal to refer Lively to the DuPont job. I find instead that the principal reason for the Union's failure and refusal to refer Lively here was to retaliate against Lively because he had filed charges with the Board in another case involving the same employer, a complaint had been issued and Lively had been, by way of settlement, admitted into the Union's apprentice program . Union Business Agent Ward, aware of this prior litigation , pointedly admon- ished Lively, "you done been to every court there is and you ain't won yet . . . you could go to every court all you want again." On this record, I find and conclude that the Union violated Section 8(b)(1)(A) and (2) of the Act by its refusal to allow Lively to review its out-of- work records and by its refusal to refer him to the DuPont job as alleged.' CONCLUSIONS OF LAW 1. Respondent Union is a labor organization as alleged. 2. DuPont is an employer engaged in commerce as al- leged. 3. The Union violated Section 8(b)(1)(A) of the Act by arbitrarily denying Lively's requests to inspect its out-of- work records in order that he might reasonably deter- mine whether he had been fairly treated with respect to obtaining job referrals. 4. The Union violated Section 8(b)(1)(A) and (2) of the Act by failing and refusing to refer Lively for employ- ment with DuPont, to which employment he was enti- r Counsel for General Counsel argued at the hearing that the Union to some lesser extent was also motivated here by an unlawful racial motive and related desire to retaliate against Lively because of his charges filed with EEOC and the Richmond County Human Relations Commission It is unnecessary for me to reach this contention since I have found that the Union was principally attempting to retaliate against Lively because he had filed charges with the Board. 204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tied pursuant to its hiring hall procedures and collective- bargaining agreements with employers, in retaliation for Lively having filed unfair labor practice charges against the Union. 5. The unfair labor practices found above affect com- merce as alleged. REMEDY To remedy the unfair labor practices found above, Re- spondent Union will be directed to cease and desist from engaging in such unlawful conduct or like and related conduct and to post the attached notice. Having found that Respondent Union unlawfully failed and refused to refer Lively to work with DuPont, the Union will also be directed to refer Lively for employment on an equal and nondiscriminatory basis and make him whole for any loss of earnings suffered by him as a result of its unlaw- ful conduct as found above with interest . Backpay and interest are to be computed as prescribed in F. W. Wool- worth Ca, 90 NLRB 289 (1950), and New Horizons for the Retarded, 283 NLRB 1173 (1987). See generally Isis Plumbing Ca, 138 NLRB 716 (1962). Respondent Union will also be directed to notify Lively in writing that the referral system is available to him on an equal and non- discriminatory basis. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed9 in writing that the referral system is available to him on this basis. (b) Make Lively whole for any loss of earnings he may have sustained because of the Union's unlawful fail- ure and refusal to refer him to the DuPont job with in- terest, as provided in the Board's decision. (c)Post at its business offices, meeting halls, and dis- patch halls copies of the attached notice marked "Ap- pendix."9 Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. ° If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX ORDER The Respondent, Local 709, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, its officers, agents, and representatives, shall 1. Cease and desist from (a) Arbitrarily denying requests of its members or ap- plicants to inspect its out -of-work records in order that they may reasonably determine whether they have been fairly treated with respect to obtaining job referrals. (b) Failing and refusing to refer members or applicants for employment, to which employment they are entitled pursuant to its hiring hall procedures and collective-bar- gaining agreements with employers, in retaliation for their having filed unfair labor practice charges against the Union. (c) In any like or related manner restraining or coerc- ing employees or applicants in the exercise of the rights guaranteed to them in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Refer Carl Lively for employment to positions for which he is qualified on an equal and nondiscriminatory basis with other employees and applicants and notify him ° 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 10248 of the Rules , be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT arbitrarily deny requests of our mem- bers or applicants to inspect our out-of-work records in order that they may reasonably determine whether they have been fairly treated with respect to obtaining job re- ferrals. WE WILL NOT fail and refuse to refer members or ap- plicants for employment, to which employment they are entitled pursuant to our hiring hall procedures and col- lective-bargaining agreements with employers, in retalia- tion for their having filed unfair labor practice charges against us. WE WILL NOT in any like or related manner restrain or coerce employees or applicants in the exercise of the rights guaranteed to them in Section 7 of the National Labor Relations Act. WE WILL refer Carl Lively for employment to posi- tions for which he is qualified on an equal and nondis- criminatory basis with other employees and applicants and notify him in writing that the referral system is available to him on this basis. IRON WORKERS LOCAL 709 (E. I. DU PONT & CO.) 205 WE WILL make Lively whole for any loss of earnings and refusal to refer him to the DuPont job, with interest, he may have sustained because of our unlawful failure as provided in the Board's decision. LOCAL 709, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMEN- TAL IRON WORKERS, AFL-CIO