Operating Engineers Local 825 (Building Contractors)

186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 825, International Union of Operating Engi- neers, AFL-CIO (Building Contractors Associa- tion of New Jersey) and Michael Harvan. Cases 22-CB-4219 and 22-CB-4638 21 September 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 6 May 1983 Administrative Law Judge Joel P Biblowitz issued the attached decision The Union filed exceptions and a brief and requested oral argument, and the General Counsel filed a reply brief The Judge concluded that the Union violated Section 8(b)(1)(A) and (2) of the Act by failing and refusing to refer Charging Party Michael Harvan for employment from its exclusive hiring hall during 26 September 1979 through 5 November 1979 and 23 May through 12 July 1981 On 20 January 1984 the Board remanded the proceeding to the judge for the purpose of making more specific findings concerning each referral during the two periods in question On 16 May 1984 the judge issued the attached supplemental decision wherein he concluded that the Union "discriminated" against Harvan by not referring him during the two periods but neverthe- less did not violate the Act because the General Counsel has not met the burden of establishing by substantial evidence that this discrimination was caused by Harvan's union membership or activity The General Counsel filed exceptions and a brief, and the Union filed an answering brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the two decisions of the judge and the record in light of the exceptions and briefs and has decided to affirm the Judge's rul- ings, findings, and conclusions to the extent consist- ent with this Decision and Order 1 As already noted, the judge found in his original decision that the Union did not refer Harvan for employment during the two periods and that its failure to do so was motivated by its desire to punish Harvan "because of his prior case before the Board and his intraunion activities" Although the judge in his supplemental decision continued to adhere to his finding that "it is abundantly clear from the [Union's] referral records that Harvan was discriminated against during the periods in ' As indicated above, the Union requested oral argument The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties question," he reversed his original conclusion con- cerning the illegality of the conduct by holding that it was not unlawful We agree with the Judge that the Union's refer- ral records 2 show that it failed to refer Harvan during the two periods and that in doing so Dis- patcher Joseph Whittles departed from the hiring hall standards set forth in the Union's collective- bargaining agreement with the Building Contrac- tors Association 3 However, for reasons given below, we find, contrary to the judge's holding in his supplemental decision, that the Union's failure to refer Harvan resulted from its desire to penalize him for exercising his protected Section 7 rights As pointed out by the judge, the Board found in its 1977 decision 4 which involved the same Union that it violated Section 8(b)(1)(A) and (2) by refus- ing to refer Harvan because he filed charges against Business Agent Arthur Mazzarella and sup- ported opposition candidates in a union election 5 Harvan testified without contradiction as follows concerning his experiences leading up to and in- cluding the 1981 period When Harvan called the union hiring hall in mid-September 1979 and in- formed Business Agent Fred Macco 2 weeks in ad- vance of an anticipated layoff that he wished to be referred as of 25 September, Macco replied that "there would be no problem" Harvan called Macco on that day, again received his assurance that there would be no problem, and was told to get in touch with Whittles The latter stated that he was aware of the provisions of the backpay set- tlement to keep Harvan employed for a year on long-term jobs but he had no jobs for Harvan Each working day thereafter, Harvan called the hiring hall at 8 a m and 4 30 p m and was given the same negative answer Consequently, Harvan filed on 2 November a charge with the Board con- cerning the Union's failure to refer him and 4 days later the Union did refer him to a job 6 2 These records are summarized in Appendix A and Appendix B of the General Counsel's brief to the Judge and the Board which set forth the name of each individual referred, the dates of the referrals, the employ ers, the type of work, and the duration thereof (These appendices are attached hereto [omitted from publication] ) 3 Although our remand order requested the Judge to make specific findings concerning each referral, we are satisfied that the Judge based his findings on an analysis of the referral records and, as indicated above, evaluated the Union's reasons for referring the individuals named therein 4 228 NLRB 276 (1977), enfd 568 F 2d 769 (3d Cir 1978) 5 A backpay hearing was held in April 1979 when a settlement was reached as to the amount of backpay and the Union agreed to make re ferrals to Harvan On 25 September 1979 the Regional Director wrote to the parties that he was closing the case However, on 16 October 1980, the General Counsel moved to reopen the backpay hearing on the ground that the Union had not complied with the referral provisions of the settlement agreement On 2 March 1981 the Chief Administrative Law Judge denied the motion 6 The collective bargaining agreement between the Respondent and the Building Contractors Association provides "When a man is referred Continued 272 NLRB No 19 OPERATING ENGINEERS LOCAL 825 (BUILDING CONTRACTORS) 187 As already noted, the 1981 period of nonreferrals for Harvan extended from 23 May to 13 July 7 During the 4 months preceding that period Harvan worked for Triangle where he observed what he considered to be contract violations, namely, oper- ation of certain equipment by members of labor or- ganizations other than the Union About two or three times a week, Harvan notified the lead engi- neer-union steward, who said that the situation was out of his hands and had been approved by the Union Harvan and a fellow employee also report- ed this situation to Business Agent Mazzarella on his fortnightly visits to the site and the latter re- plied that the matter was out of his hands because it had been approved by the Union's business man- ager On 22 May 1981, 8 when Harvan was laid off at Triangle, and two or three times each day thereaf- ter until 13 July 1981, Harvan called Whittles, who replied that there was no work for him In June and early July, Harvan asked Whittles why the son of Tom Rowe, the Union's vice president, was working, and Whittles thereupon referred Harvan to Rowe for the answer to that question Harvan also asked Whittles why the son of Tony Capone, a union trustee and lead engineer, had been given a job and again Whittles suggested that Harvan direct his inquiry to the parent In September 1982, Harvan, who was engaged in a campaign for the position of president or business manager of the Union, distributed literature p_ior to a membership meeting When Harvan entered the hall, Capone challenged Harvan's right to attend and told the members that "that s-o-b" was handing out the campaign literature because Capone kept his son working during the summer months and that he, as a member of the Union's ex- ecutive board, had the right to give work to anyone Based on the Union's own referral records as summarized in Appendices A and B here [omitted from publication], we agree with the judge's find- ing that the Union failed to refer Harvan for em- from the hiring hall for employment, he shall continue to retain his posi- tion at the top of the hinng hall list until he has completed 120 hours of employment" The judge found that during the 1979 penod the Union referred 50 individuals to about 135 jobs, that virtually all of these Ind' viduals had accumulated in excess of the contractual limit of 120 hours of employment, and that a majority of those referred had more hours for pension coverage than Harvan 7 The judge found that 10 individuals with more than 120 hours of covered employment received referrals to a total of 17 jobs that Harvan was capable of performing, that more than two thirds of these referrals were given 3 days or more after the applicants registered for referral, and that Harvan had more covered hours than any of the applicants presum- ably because Triangle Sheet Metal Company had specifically requested him8 As noted above, the Chief Administrative Law Judge on 2 March 1981 issued an order denying the General Counsel's motion to reopen the backpay proceeding ployment during the relevant periods in accordance with the collective-bargaining agreement It also is clear that the Union has offered no persuasive reason or explanation why it did not refer Harvan for work in the 1979 and 1981 periods The Board has held that a union which, as here, operates an exclusive hiring hall must represent all individuals who seek to utilize the hall in a fair and impartial manner 9 The labor organization conducting such an operation has a duty to conform with and apply lawful contractual standards in administering the referral system, and any departure from the estab- lished procedures resulting in a denial of employ- ment constitutes discrimination which inherently encourages union membership By engaging in such conduct in this case, the Respondent has violated Section 8(b)(1)(A) and (2) of the Act 10 While the Board has held that evidence of a union's motivation is not a prerequisite to a finding of discrimination, this record clearly demonstrates the Respondent's animus against Harvan Thus, as the Board found in its earlier decision, which was enforced by the circuit court, the Union previously barred Harvan from any referrals because of the charges he filed against the Union's officers, includ- ing Mazzarella Although Harvan was thereafter assured by union officials Macco and Whittles that there would be no problem in referring him on 25 Sep- tember 1979, it is noteworthy from the crucial standpoint of timing that, despite Whittles' ac- knowledgement of the Union's obligation to refer Harvan and indeed to give him preference in that regard, Harvan was nevertheless denied referral when the Regional Director informed the parties that the earlier case was closed It was not until Harvan filed a charge with the Board that Harvan was given a referral The second period of discriminatory referrals followed (1) the denial of the General Counsel's motion to reopen the earlier case and (2) Harvan's frequent complaints to the union steward and Busi- ness Agent Mazzarella regarding the employment of members of other labor organizations Thus, upon completion of Harvan's employment on 22 May 1981 and until 13 July 1981, Harvan was denied referrals by Whittles, who did not challenge the accuracy of his complaint that the sons of Union Vice President Rowe and Union Trustee Capone were given employment by them apparent- ly without recourse to the contractual referral pro- cedures g Plumbers Local 725 (Powers Regulator), 225 NLRB 138, 143 (1976) " Id at 143, Operating Engineers Local 513 (S J Groves & Sons), 199 NLRB 921, 922 (1972) 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD That the Union's animus against Harvan re- mained undiminished is vividly demonstrated by Capone's denunciation of Harvan on the ground that he was handing out campaign literature in order to retaliate against Capone's action in provid- ing work for his son In sum, we conclude, contrary to the judge's conclusion in his supplemental decision, that there is ample basis for finding that the Union's failure to refer Harvan during the 1979 and 1981 periods was unlawfully motivated In this connection, it is well established that the Board may properly rely not only on the events occurring during those periods but also on the background evidence of what took place both prior and subsequent thereto Such evi- dence serves to underscore the fact that the Union's longstanding animus against Harvan con- tinued unabated when it again resorted to the same discriminatory pattern of nonreferrals which took place in preceding years Accordingly, we find that the Respondent violat- ed Section 8(b)(1)(A) and (2) of the Act by failing and refusing to refer Michael Harvan for employ- ment during the periods of 26 September through 5 November 1979 and 22 May through 12 July 1981 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge set forth in his original decision of 6 May 1983, and orders that the Respondent, Local 825, International Union of Operating Engineers, AFL- CIO, Little Falls, New Jersey, its officers, agents, and representatives, shall take the action set forth in the Order as modified Substitute the following for paragraph 2(c) "(c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all hiring records, dispatcher lists, referral cards, and other documents necessary to analyze and compute the amount due Michael Harvan " DECISION STATEMENT OF THE CASE JOEL P BIBLOWITZ, Administrative Law Judge This case was tried before me in Newark, New Jersey, on May 6 and December 2 and 3, 1982 The order consoli- dating cases issued on December 31, 1981, based upon charges filed by Michael Harvan on November 2, 1979, and November 12, 1981 The consolidated complaint al- leges, and Local 825, International Brotherhood of Oper- ating Engineers, AFL-CIO (Respondent) admits, that at all times material it has maintained and enforced a collec- tive-bargaining agreement covering operators of con- struction equipment employed by employer-members of Building Contractors Association of New Jersey (BCA) and that pursuant to this agreement, and others it main- tains, Respondent has maintained and operated an exclu- sive job-referral system whereby all operators of con- struction equipment must be referred to employment by Respondent The consolidated complaint further alleges that for two periods—September 25 through November 5, 1979, and May 22 through July 13, 1981—Harvan ap- plied to Respondent for referrals, but Respondent refused to refer him to employment because he filed an unfair labor practice charge under the Act against Respondent and gave testimony in support thereof, and for other rea- sons other than his failure to tender the periodic dues and initiation fees required under the contract, these alle- gations Respondent denies On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the parties, I make the following FINDINGS OF FACT I JURISDICTION BCA, a New Jersey corporation with its principal office in Woodbridge, New Jersey, is an association of employers engaged as contractors in the building and construction industry in New Jersey and other States During the 12-month period preceding the issuance of the consolidated complaint, employer-members of BCA caused to be purchased, transferred, and delivered to construction jobsites in New Jersey construction materi- als and other goods and materials valued in excess of $50,000 which were transported to these jobsites directly from States other than the State of New Jersey Re- spondent admits, and I find, that BCA is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II LABOR ORGANIZATION STATUS Respondent admits, and I find, that it is a labor organi- zation within the meaning of Section 2(5) of the Act III ALLEGED UNFAIR LABOR PRACTICES A Background As the General Counsel alleges that one of the reasons for the discrimination against Harvan was "because he filed an unfair labor practice charge under the Act and gave testimony in support thereof," it is necessary to ex- amine the past dealings between the parties The relation- ship over the past 10 years has clearly not been harmoni- ous Harvan first filed a charge in 1974 alleging that Re- spondent was unlawfully refusing to refer him to em- ployment, he withdrew this charge when Respondent in- formed him that he was not being referred to employ- ment because he was an owner-operator The Regional Director later withdrew his approval of this withdrawal and reinstated the charge because of what the adminis- trative law judge found to be "subterfuge" and "duplici- ty" on the part of Respondent—"Respondent should not benefit by its falseness to the detriment of one who relied upon Respondent as being truthful" Operating Engineers Local 825 (Building Contractors), 228 NLRB 276 at 281 (1977) Harvan filed another charge against Respondent OPERATING ENGINEERS LOCAL 825 (BUILDING CONTRACTORS) 189 in 1975 also alleging that Respondent violated Section 8(b)(1)(A) and (2) by failing to refer him to employment In its decision, dated February 17, 1977, the Board found that Respondent violated Section 8(b)(1)(A) and (2) by refusing to refer Harvan from November 8, 1973, for dis- criminatory and invidious reasons, including his attempts to enforce the collective-bargaining agreement and some intraunion politics he had engaged in Id This Decision and Order was enforced by the United States Court of Appeals for the the Third Circuit on January 12, 1978 586 F 2d 769 (3d Cir 1978) On October 19, 1978, a backpay specification and notice of hearing was issued alleging that approximately $62,000 was due and owing to Harvan, including $4600 to Respondent's pension fund and $3300 to Respondent's welfare fund on behalf of Harvan At the hearing (on April 4 and 5, 1979), the par- ties reached an agreement that Respondent would pay $40,000 to Harvan and contribute $6800 to the welfare and pension plans on behalf of Harvan On this basis, on August 13, 1979, the General Counsel moved the admin- istrative law judge to dismiss the backpay specification, and on August 16, 1979, he did so On September 25, 1979, the Regional Director wrote to the parties that Re- spondent had met its obligation with regard to all the terms of the court judgment, and that he was therefore closing the matter 1 B The Facts On September 25, 1979, Harvan was laid off from his job 2 and was not referred again to employment by Re- spondent until November 6, 1979, 4 days after he filed an unfair labor practice charge against Respondent, al- though he had requested referrals twice daily during this period This is the first period in which the General Counsel alleges that Harvan was unlawfully discriminat- ed against On January 20, 1981, Respondent received a specific request for Harvan's referral from the Triangle Sheet Metal Company (Triangle), where he was employed as an oiler on a truck crane He was laid off from that job on May 22, 1981, and despite calls to Respondent twice a day requesting referrals he was not referred again to em- ployment by Respondent until July 13, 1981 This period represents the other period of alleged discrimination by Respondent As stated, supra, the sole allegation herein is that Re- spondent failed and refused to refer Harvan to employ- ment during the two periods in question "because he filed an unfair labor practice charge under the Act and gave testimony in support thereof, against Local 825 and for other reasons other than his failure to tender periodic ' On October 16, 1980, the General Counsel moved to reopen the above mentioned matter, based on Respondent's alleged noncompliance with the terms of the settlement-that it would continue to refer Harvan to employment steadily for year, Respondent alleges that this agreement was that Harvan would be referred to a job to last the duration of the construction season On March 2, 1981, the Chief Administrative Law Judge issued an order denying the General Counsel's motion 2 The first referral Harvan received after the settlement was on April 18, 1979, on that date he was referred to PKF Mark III Construction Company as an oiler He testified that approximately 2 weeks prior to September 25, 1979, he was informed by the lead engineer on the job that he had 2 weeks left on the job dues and initiation fees pursuant to an agreement in con- formity with the provisions of [the Act] " It is therefore necessary to examine these activities The principal activities were the charges Harvan filed on May 8, 1974, and August 15, 1975, which were upheld by the administrative law judge, the Board and the court, and which resulted in Respondent's paying a substantial amount to Harvan about April 5, 1979, in order to settle the matter There were a number of addi- tional incidents testified to by Harvan, from January 19, through May 22, 1981, while he was employed by Trian- gle, he observed what he considered contractual viola- tions on the job in that equipment that should have been operated by Respondent's members was being operated by members of the Teamsters and the Laborers Unions Approximately two or three times a week he and a fellow employee notified the lead engineer on the job (the equivalent of a shop steward) of the existence of this situation, and on each of these occasions the lead engi- neer said that it was out of his hands, it was okayed by the business manager of the Local Harvan told him that was why Respondent had such a high unemployment rate In addition, Art Mazzarella, Respondent's business agent for the area, visited the jobsite about once every 2 weeks, and on these occasions Harvan and his fellow em- ployee informed Mazzarella of what they believed to be contract violations, on these occasions Mazzarella told them that it was out of his hands as it was okayed by Respondent's business manager Harvan testified that in June and early July 1981 he spoke to Joseph Whittles, Respondent's dispatcher, re- garding job referrals given to Tommy Rowe Jr, son of Respondent's vice president, Tom Rowe In the June conversation Harvan asked Whittles, why Rowe Jr was sent out on a number of jobs as an oiler and crane opera- tor and was always working while other of Respondent's members were often out of work, Whittles told him to ask Rowe Sr In the July conversation, Harvan asked Whittles why he and other members were not being re- ferred while Rowe Jr was always working, Whittle again told him to see Rowe Sr Harvan also testified that in June 1981 he called Whittles about Tom Capone, the son of Tony Capone, trustee and a lead engineer of Re- spondent Harvan told Whittles that Tom Capone was on summer vacation from college and was employed as an oiler on a job on which his father was lead engineer Harvan said that he could not understand how a person could come right out of college and get a job as an oiler at the jobsite where his father was lead engineer Whit- tles told him to speak to Tony Capone Whittles testified that Tom Capone has never worked as an operating engineer and Tony Capone never asked him to refer him to a job Harvan also testified that on September 27, 1982, 3 he attended a membership meeting conducted by Respond- 3 The hearing herein commenced on May 6, 1982 it was initially ad- journed in order for the General Counsel to inspect and summarize docu- ments subpoenaed from Respondent It was further adjourned because the General Counsel was injured in an automoile accident, and therefore did not resume until December 2, 1982 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent At the time of the meeting, Harvan was engaged in a campaign to run for president or business manager of Respondent, and, in furtherance of that ideal, he distrib- uted campaign literature to the members prior to the meeting Harvan entered the meeting about 15 minutes after it commenced, and Capone approached him and asked him who authorized him to come into the meeting at the time, Harvan said that he was a paid-up member of Respondent and was entitled to attend Toward the end of the meeting, while Harvan was returning from the men's room, Capone was addressing the membership, saying "That son of a bitch is out in the parking lot handing out campaign literature because I keep my son working during the summer months, and as an Executive Board Member I have the right to anyone working who I want" This testimony is undenied C The Referral System Respondent and the BCA were parties to a collective- bargaining agreement effective for the period July 1, 1978, through June 30, 1981, Respondent and the Gener- al Counsel stipulated at the hearing that there has been no change in the operation of the hiring hall (or the con- tractual terms governing its operation) since that time Respondent admitted that under this agreement it operat- ed and maintained an exclusive job-referral system whereby all operators of construction equipment must be referred to employment by Respondent The only portions of the collective-bargaining agree- ment relevant to the proceeding herein are as follows 2(b) When an Employer states requirements for special skills or abilities in his request for employ- ees, the Union shall refer the first applicant on the register possessing such skills and abilities 6 When a man is referrred from the hiring hall for employment, he shall continue to retain his posi- tion at the top of the hiring hall list until he has completed one hundred and twenty (120) hours of employment, after which time his name shall be re- registered in proper position as of the date of notifi- cation to the hiring hall of his availability The agreement also provides for a "Limited Preferred Status List" which basically involves older or physically handicapped employees who are referred to less phys- ically demanding jobs Finally, the agreement provides the mechanism where an employer may request the re- ferral of a specific employee from the hiring hall without regard to priority on the list Whittle's testimony 4 paints a substantially different picture of the operation of the hall as compared to that described in the collective-bargaining agreement As set forth above, the collective-bargaining agreement pro- vides that an individual retains his position at the top of the list until he has completed 120 hours of employment, Whittles testified that, although the contract specifies 120 4 Whittles was not the dispatcher during the previous period when Harvan was unlawfully denied referrals, as found by the Board, the dis patcher at the time was Fred Macco, who is presently Respondent's bus' ness manager hours, he uses a month's employment because it is easier to figure 5 Whittles also testified that if the man at the top of the list has been collecting unemployment, and the hall receives a job referral that will only last a day or two, Whittles will not offer this job to the individual be- cause it would "screw up the unemployment" of the in- dividual, although there is no evidence that Respondent failed to refer Harvan to a job for this reason Finally, Whittles testified to another aspect of his op- eration of the hiring hall not provided for by the collec- tive-bargaining agreement, basically, individuals have to be employed by covered employers for at least 1000 hours each year to be eligible for pension and welfare coverage ("the name of the game is to try and make the thousand hours") If an individual who has been em- ployed for 2000 hours of covered employment is number 1 on the referral list, Whittles testified that he would refer the job to the individual with 200 hours to assist him in accumulating adequate hours to obtain a pension D The Actual Referrals September 25 to November 5, 1979 About early September 1979, after Harvan was in- formed that he would be laid off in 2 weeks, he called Respondent's business manager Fred Macco and in- formed him that he was told that he had only another 2 weeks on the job, and he asked Macco to find another job for him at that time Macco (who did not testify) told him that there would be no problem, that Harvan should give him a day's notice when he was about to be laid off On the day he was laid off Harvan called Macco in the morning and told him that he was being laid off that day Macco told him that there would be no prob- lem, that he should call Whittles that afternoon, which he did, he asked Whittles if he had a job for him and Whittles said that he had no work for him From Sep- tember 25, he called Respondent's hall twice each day, at 8 a m and 4 30 p m, to see if there were any referrals for him, on each of these occasions, until November 6, he was told that there was no work available for him Records subpoenaed by the General Counsel from Re- spondent and its pension and welfare fund establish that during this period Respondent referred 50 individuals to approximately 135 individual jobs 6 All of these individ- uals (with two exceptions) had accumulated in excess of 120 hours of employment from no earlier than the end of August until the date of these referrals 7 Additionally, 5 This conclusion is open to question If an employee was referred to a job on October 1 and worked continuously at that job until November 1, then Whittles is correct that he can quickly determine when the man loses his priority on the list However, when the employee only works sporadically beginning October 1, the 120-hour standard is easier to de termine c The records herein indicate that Harvan was able to perform, at the least, a large majority of the jobs within Respondent s junsdiction and that Respondent was aware of this Additionally a large percentage of the jobs referred by Respondent dunng this period was for an oiler's po salon, which Harvan clearly was qualified to perform 7 These referrals do not Include referrals where Respondent's records indicate that the applicant was specifically requested or the referral was pursuant to the Limited Preferred Status List described supra OPERATING ENGINEERS LOCAL 825 (BUILDING CONTRACTORS) 191 almost two-thirds of these referrals were made within 2 days of the individual's request for referral Finally, my examination of the pension and welfare fund records es- tablishes that up to this period in question Harvan had been employed for approximately 930 covered hours for the year, as of the same time, a majority of the applicants who were successful in obtaining referrals during this period had been employed for more covered hours than Harvan E The Actual Referrals May 22 to July 13, 1981 Harvan was laid off by Triangle on May 22, 1981, at 10 a m that morning he called Respondent's office and informed the operator that he wished to be placed on the out-of-work list, and she said that she would do so Later that day he called Whittles and told him that he was out of work and asked if there was any work for him, Whit- tles said that there was not From that day through the day he received his next job referral (July 12, 1981) Harvan called Whittles twice a day asking for work, and on each occasion Whittles told him that there was no work for him Similar records for this later period establish that 10 applicants (with in excess of 120 hours of covered em- ployment since no earlier than mid-April) received refer- rals by Respondent during this period to a total of 17 jobs that Harvan was capable of performing In excess of two-thirds of these referrals were given 3 days or more after the applicant registered for referral The pension and welfare records establish that at the time of his layoff on May 22, 1981, Harvan had been employed for substantially more covered hours than any of the 10 ap- plicants who were referred during this period, 8 even more than Tommy Rowe, who was a lead engineer This may be explained by the fact that his prior employer (Triangle) had specifically requested him for the job, and it was steady employment from January through May 1981 Whittles testified that he knows of no situation where another applicant was referred to employment when (pursuant to his above-described method of referring ap- plicants) Harvan should have been referred The General Counsel, in his brief, alleges that the dis- criminatory actions by Respondent are established by the timing, the first refusal to refer occurred just as the Re- gional Director informed the parties that he was closing the prior matter due to compliance with the terms of the settlement, while the timing of the latter refusal to refer occurred on the first occasion that Harvan was out of work subsequent to the Chief Administrative Law Judge's refusal to reopen the prior matter—March 2, 1981 The General Counsel's bnef states that the pension and welfare fund records 'disclose that applicant C Grasz had accumulated over LOCO hours of employment during that time" My examination of these records establishes that Grasz was employed a total of 1193 covered hours for the year 1981, of which approximately 650 hours were worked prior to mid-July 1981 F Conclusion It should initially be noted that the sole allegation herein is that Respondent discriminated against Harvan by not referring him to employment during the two peri- ods in question because of his charges filed with the Board and for other protected reasons Although testi- mony was elicited from Whittles establishing that his op- eration of the hiring hall is substantially different from what is described in the collective-bargaining agreement, there is no general allegation herein that the hiring hall is operated in an unlawful manner, my consideration is solely related to how the referral system treated Harvan during these two periods As the court stated in NLRB v Laborers Local 300, 613 F 2d 203 at 209 (9th Cir 1980) "The relevant inquiry in each case is whether the individual alleging discrimination would have been re- tained on or referred to the job in question but for the animus which the union harbors against him or her" I find that Harvan would have been referred to work absent his prior activities The record establishes that Harvan was not referred to employment during the two periods in question During the first period Respondent made approximately 135 re- ferrals to applicants who had recently satisfied the con- tractual 120 hours of employment, 9 so they could not have been ahead of Harvan on the referral list Almost two-thirds of these referrals were made within 2 days of the applicant registering for referral Additionally, Harvan was capable of performing a large majority of these jobs, and yet Respondent presented no record evi- dence" as to why Harvan was not referred to any jobs during this period 1. The same is true for the second period, although less so There were far fewer referrals to far fewer applicants, but again Harvan received none, without explanation It is true, as pointed out by Re- spondent, that Harvan had steady work during the peri- ods prior to the alleged discriminatory periods, and, in fact, had worked more hours up to the period in question in 1981 than any of the applicants who were referred to employment during that period, although he had worked fewer hours than two-thirds of those who were referred during the earlier period Regardless, these two periods of employment do not establish the lack of animus of the part of Respondent, rather, the first period of employ- ment resulted from the Board's settlement with Respond- ent on the prior matter, while the second period of em- ployment was based on Triangle's specific request for Harvan 9 Contrary to Respondent's position, I find that the contract clearly re quires 120 hours of employment, not 120 consecutive hours of employ- ment is Respondent's brief argues many facts that are not in the record herein, and therefore were not considered by me For example, there are numerous references to the fact that many of the Jobs referred during these two periods were to last only for 1 day However, there is an ab sence of record evidence establishing why the refusal to refer Harvan to even 1-day jobs would not be discriminatory " As the court stated in NLRB v Laborers Local 300, supra at 208 "When a union introduces an element of discretion into what is otherwise a non discretionary process, the union may be held accountable for dis- cnminatory exercise of that discretion" 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The conclusion therefore appears inescapable to me that Respondent failed to refer Harvan to employment during these two periods because of his prior case before the Board and his intraunion activities. As stated, supra, Respondent failed to explain why it did not refer Harvan to any of the in excess of 150 referrals it gave to appli- cants who could not have been at the top of its referral list. This total lack of evidence, together with Harvan's prior actions and charges, his prior settlement with Re- spondent wherein they paid him in excess of $46,000, and his more recent complaints regarding the lack of con- tractual enforcement and the practice of nepotism by Re- spondent, together with Capone's statement at Respond- ent's membership meeting, convince me that the absence of referrals for Harvan during this period was caused by the continuing animus Respondent harbored toward him due to his prior charges and present activities in viola- tion of Section 8(b)(1)(A) and (2) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent described above in sec- tion III, occurring in connection with Respondent's op- eration described above in section I, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. CONCLUSIONS OF LAW 1. The BCA is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent violated Section 8(b)(1)(A) and (2) of the Act by failing and refusing to refer to employment Michael Harvan during the two periods September 26 through November 5, 1979, and May 23 through July 12, 1981. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be re- quired to cease and desist therefrom; I shall also recom- mend that it take certain affirmative action designed to effectuate the policies of the Act. As I have found that Respondent violated Section 8(b)(1)(A) and (2) of the Act by refusing to refer Mi- chael Harvan to employment during the above-men- tioned two periods, I recommend that Respondent make Michael Harvan whole for the loss of pay and other ben- efits he sustained by reason of the discrimination prac- ticed against him between September 26 and November 5, 1979, and between May 23 and July 12, 1981. Back- pay, together with interest, shall be computed in accord- ance with F. W. Woolworth Co., 90 NLRB 289 (1950); Florida Steel Corp., 231 NLRB 651 (1977); and Isis Plumbing Co., 138 NLRB 716 (1962). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed12 ORDER The Respondent, Local 825, International Union of Operating Engineers AFL-CIO, Little Falls, New Jersey, its officers, agents, and representatives shall I. Cease and desist from (a) Refusing to refer applicants for work for discrimi- natory and invidious reasons in violation of Section 8(b)(1)(A) and (2) of the Act. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make Michael Harvan whole for any loss of pay and other benefits he may have suffered by reason of the discrimination against him caused by Respondent in the manner set forth above in the section entitled "The Remedy." (b) Operate the referral system in a nondiscriminatory manner, and properly and fairly represent all who use its services. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its business office, union hall, and any other places where it customarily posts notices to members copies of the attached notice marked "Appendix."" Copies of the notice shall also be posted at the Employ- er's place of business if the Employer is willing. Copies of the notice, on forms provided by the Regional Direc- tor for Region 22, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt thereof in the manner provided above. The notices are to be posted for 60 con- secutive days in conspicuous places including all places where notices to members are customarily posted. Rea- sonable steps shall be taken by the Respondent and by the Employer to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 12 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 13 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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board." OPERATING ENGINEERS LOCAL 825 (BUILDING CONTRACTORS) 193 APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discriminate against applicants for work by refusing to refer them for work because they filed charges against the Union or engaged in other protected conduct WE WILL operate the referral system in a nondiscrim- inatory manner and will properly and fairly represent all who use our services WE WILL refer Michael Harvan to work in a nondis- criminatory manner and WE WILL make him whole for the loss of pay and other benefits he sustained as a result of our discrimination against him during the periods Sep- tember 26 through November 5, 1979, and May 23 through July 12, 1981 WE WILL NOT any other manner coerce or restrain union members or applicants for referral LOCAL 825, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO SUPPLEMENTAL DECISION JOEL P BIBLOWITZ, Administrative Law Judge On May 6, 1983, I issued a decision and recommended Order in the above-entitled matter wherein I found that Local 825, International Union of Operating Engineers, AFL- CIO (Respondent) had violated Section 8(b)(1)(A) and (2) of the Act by failing and refusing to refer Michael Harvan to employment through the exclusive job-referral system provided for in the existing collective-bargaining agreement between Respondent and Building Contrac- tors Association of New Jersey (the Association) The General Counsel alleged, and I found, that it was only during two periods—September 25 through November 5, 1979, and May 22 through July 13, 1981—that this dis- crimination took place Respondent filed exceptions, and a brief in support thereof, to that decision, the General Counsel filed a brief in reply to Respondent's exceptions, in which he cited a Third Circuit decision, NLRB v Iron Workers Local 483, 672 F 2d 1159 (3d Cir 1982), and re- quested that the Board remand the case to me for the making of more specific findings, or, in the alternative, the Board should adopt my findings On January 20, 1984, the Board issued an Order Re- manding Proceeding to Administrative Law Judge in which the Board recited my findings and found The Administrative Law Judge did not specify which applicants for referral were given preference over Harvan, the dates of the referrals, and the names of the employers to whom they were re- ferred Thus, the Administrative Law Judge did not address or evaluate all of Respondent's reasons for said referrals and did not fully explicate or set forth the basis for his finding that Respondent discrimi- nated against Harvan by not referring him for em- ployment during the two periods in question The Board has considered the matter and is of the opinion that disposition of the issues presented in the instant proceeding requires that the Judge make more specific findings and set forth the basis therefor The Board is therefore remanding the pro- ceeding to Administrative Law Judge Biblowitz for that purpose 1 The Board's Order states that the case is remanded to me for the purpose of making more specific find- ings concerning each referral during the periods 26 September 1979 through 5 November 1979 and 23 May 1981 through 12 July 1981, evaluating the rea- sons given by Respondent for said referrals, and set- ting forth the basis for concluding that Respondent discriminated against Michael Harvan by not refer- ring him for employment during the foregoing peri- ods In my decision, I found that during the period of Sep- tember 25 through November 5, 1979, Harvan received no referrals, while Respondent referred 50 other individ- uals to approximately 135 jobs, a large majority of which Harvan was able to perform All of the 50 individuals re- ferred had previously accumulated in excess of 120 hours of employment 2 Almost two-thirds of these referrals were made within 2 days of the individual's request for referral Harvan likewise received no referrals by Respondent during the period May 22 through July 13, 1981 During this period Respondent referred to employment 10 indi- viduals who had previously accumulated in excess of 120 hours of covered employment 17 jobs that Harvan was capable of performing In excess of two-thirds of these 17 referrals were given 3 days or more after the appli- cant registered for referral I also found that during this period Harvan com- plained to Joseph Whittles, Respondent's dispatcher, that the sons of Respondent's vice president and Respondent's trustee and lead engineer were given preference in refer- rals, Whittles denied such allegation And finally, based upon a prior Board decision enforced by the court, and pursuant to a settlement arrived at prior to the start of the backpay hearing in April 1979, Harvan received ap- proximately $46,800 from Respondent for its previous discriminatory conduct toward him As Respondent referred numerous individuals to em- ployment during these periods without explanation of why Harvan, who should have been above them on the hiring hall list (pursuant to Respondent's rules) and was capable of performing these jobs, was not referred, I found that the "conclusion therefore appears Inescapable 1 Citing Local 483, supra 2 Art 6 of the collective-bargaining agreement between Respondent and the Association states When a man is referred from the hiring hall of employment, he shall continue to retain his position at the top of the hiring hall list until he has completed one hundred and twenty (120) hours of employ ment at which time his name shall be registered in proper position as of the date of notification to the hiring hall of his availability 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to me that Respondent failed to refer Harvan to employ- ment during these two periods because of his prior case before the Board and his intraunion activities." Local 483, supra, cited to me by the Board, is some- what analogous to the instant matter. There, the union's contract with the association provided that the exclusive hiring hall would be operated in a nondiscriminatory manner and in accordance with a consent decree entered with the court in 1972 as part of the settlement of an em- ployment discrimination suit by the United States against the union. The court stated that the administrative law judge: . . . went through the referral register in summary fashion listing the total number of times that each named charging party was bypassed, without refer- ence to, or discussion of, each specific instance. Further, any purported explanation 3 or justification of a bypassing, other than an actual request letter, was either rejected outright by the AU or held to be relevant only to the issue of damages in the sub- sequent compliance proceeding. The Board affirmed the decision of the administrative law judge finding that the union's failure to refer the charging party violated the Act. The court, disagreeing, stated that "a union may lawfully refer one worker ahead of another for any good faith reason which is nei- ther arbitrary nor based on union membership or activi- ty," and that out-of-order hiring hall referrals: . . . do not in themselves constitute violations of the Act unless and until the Board finds by substan- tial evidence that the referral was in fact based upon union membership or activity and that the purported justification, if any, is mere pretext. The court stated, however, that a union's disregard of the contractual rules setting forth the operation of the hiring hall constitutes "strong evidence" of unlawful dis- crimination. The court found fault with the administrative law judge for simply setting forth a summary of the total number of instances he felt the charging party was by- passed and not sufficiently discussing the union's defenses to each of these referrals. The court remanded the case to the Board to articulate "its findings with sufficient specificity to permit the respondents to mount a mean- ingful defense and this court to perform a meaningful review." With these guidelines, I reexamine the instant matter. As an exhibit herein, the General Counsel prepared a summary of Respondent's hiring halls records; this sum- mary sets forth the names of individuals who were re- ferred during the periods in question, together with the referral dates, the employer, and the type of work per- formed. With this summary I could readily comply with the Board's remand for more specific findings of the re- ferrals during these periods. However, as this remand also cites me to the court's holding in Local 483, supra, I 3 In the instant matter Respondent never attempted to explain any of the situations where Harvan was bypassed must also reconsider my decision in light of the law as expressed by the court in that case. Most pertinent herein is the court's conclusion that the disregard of the con- tractual provisions regulating the hiring hall permitting an individual to be improperly bypassed, while strong evidence of unlawful discrimination, is not enough to es- tablish a violation. The General Counsel must also present substantial evidence that the referral was caused by the individual's union membership or activity. The General Counsel's proof in that respect was prin- cipally Harvan's prior charge filed against Respondent and the fact that he collected $46,800 from Respondent as a settlement of this case at the backpay specification stage of the case, and in my decision I found it "inescap- able" that this unfair labor practice charge and payment contributed to the later discrimination against Harvan. However, counsel for Respondent, in his brief in support of exceptions, argued that during the hearing I stated that the prior Board case would be used solely for back- ground purposes, and that no finding of animus would be based upon it. Upon reconsideration, I find that my find- ing that it was inescapable that the discrimination against Harvan was caused by the prior Board matter is contrary to my statement at the hearing that the prior Board deci- sion would not be considered to establish animus, and I therefore reverse that finding. Is there any other substan- tial evidence to establish that union membership or activ- ity caused Respondent's discrimination toward Harvan during these two periods? I find there is not. Harvan tes- tified about complaints he made to Whittles regarding priority in referrals allegedly given to the sons of Re- spondent's vice president and Respondent's trustee; how- ever, these incidents occurred in June or July 1981, long after the first period of alleged discrimination and after the commencement of the second period. In addition, there is no evidence connecting the discrimination to these complaints. Harvan also testified that in early 1981 he complained to the lead engineer on his job and to Re- spondent's business agent about alleged unremedied con- tractual violations on the job. Again, this occurred after the first period of discrimination and, regardless, there is no evidence connecting this activity to the discrimina- tion. Finally, Harvan testified uncontradicted that, at a regular membership meeting of Respondent in September 1982, the trustee of Respondent whom Harvan had com- plained about, expressed hostility toward Harvan due to these complaints. However, there is no allegation or proof that he was an agent of Respondent. In addition, this incident occurred in excess of a year after the last period of discrimination and there is no proof that it is connected to the discrimination. In summary, I find that it is abundantly clear from Re- spondent's referral records that Harvan was discriminat- ed against during the periods in question. However, under the law set forth by the court in Local 483, supra, the General Counsel has the burden of establishing by substantial evidence that this discrimination was caused by union membership or activity The General Counsel has not met this burden, and the consolidated complaint is therefore dismissed. OPERATING ENGINEERS LOCAL 825 (BUILDING CONTRACTORS) 195 CONCLUSIONS OF LAW 1 The Association is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act 2 Respondent is a labor organization within the mean- ing of Section 2(5) of the Act 3 Respondent has not engaged in any conduct in vio- lation of the Act as alleged herein [Recommended Order for dismissal omitted from pub- lication]