Laborers' International Union of North America, Local Union No. 91 (Scrufari Construction Co., Inc.)

368 NLRB No. 40 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Laborers’ International Union of North America, Lo- cal Union No. 91 (Scrufari Construction Co., Inc.) and Ronald J. Mantell. Cases 03–CB–196682 and 03–CB–201412 August 12, 2019 DECISION AND ORDER BY CHAIRMAN RING AND MEMBERS KAPLAN AND EMANUEL On December 11, 2017, Administrative Law Judge Da- vid I. Goldman issued the attached decision. The General Counsel filed exceptions and a supporting brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent with this Decision and Order.1 There are no exceptions to the judge’s findings that the Respondent Union violated Section 8(b)(1)(A) by threat- ening, in or about November 2016, to bring internal union charges against the Charging Party, Ronald Mantell (“Ron”), if he contacted the NLRB, and by refusing, on or about June 27, 2017, to show Ron the current hiring hall out-of-work list in retaliation for his protected concerted activity the day before. We adopt these findings. Con- trary to the judge’s decision, we find that the Respondent also violated Section 8(b)(1)(A) by refusing to refer Ron from the out-of-work list because his brother, Frank 1 We have amended the remedy and modified the judge’s conclusions of law and recommended Order consistent with our legal conclusions herein. We shall substitute a new notice to conform to the modified Or- der. 2 For the reasons stated by the judge, we agree that the filing of inter- nal union charges against Ron did not impair any policies embedded in the Act. Office Employees Local 251 (Sandia National Laboratories), 331 NLRB 1417, 1417–1419, 1424–1426 (2000) (holding that internal union discipline violates Sec. 8(b)(1)(A) only if the union’s actions (1) affect the employment relationship, (2) impair access to the Board’s pro- cesses, (3) pertain to unacceptable methods of union coercion, such as physical violence in organizational or strike contexts, or (4) otherwise impair policies embedded in the Act). Excepting to the dismissal of this allegation, the General Counsel contends that the internal union disci- pline against Ron was pursued in retaliation for Frank’s filing of charges with the Board and thus was unlawful on the basis that it impaired access to the Board’s processes. This theory of violation was not advanced in the complaint, which specifically alleges that the Respondent filed inter- nal union charges against Ron and sanctioned him because of Frank’s protected criticism of union leadership. It was not raised before the judge Mantell (“Frank”), engaged in protected criticism of union leadership and by changing its practice of making an up- to-date out-of-work list available to members on demand. We affirm, however, the judge’s dismissal of the allega- tion that the Respondent violated the Act by pursuing in- ternal union charges and sanctions against Ron.2 Facts The Respondent maintains a nonexclusive hiring hall. Under the hiring hall’s rules, the Respondent generally re- fers members to jobs in the order of their registrations on the hall’s out-of-work list.3 There are, however, several exceptions to this “first in, first out” rule. These include provisions that allow the Respondent to refer a member out of order if an employer requested him or her by name, if he or she possessed required qualifications or certifica- tions that members higher on the out-of-work list lacked, if he or she was being referred to serve as a steward or foreman, or if he or she needed additional hours to attain eligibility for unemployment or other benefits. The Re- spondent’s job-referral rules required it to keep written records of all referrals and to permit members to inspect them on request.4 At all relevant times, Richard Palladino, the Respondent’s business manager, was primarily re- sponsible for selecting the members referred from the out- of-work list to fill employer requests, and Mario Neri, the Respondent’s job dispatcher, maintained the list. Prior to November 2015, Ron was referred by the Re- spondent on a regular basis. The record shows that the hours worked by Ron from 1990 to 2017 ranged from 54 hours in fiscal year 1990, his first year on the list, to 2063.50 in fiscal year 2006. In 2015, Ron received 11 re- ferrals between January 1 and November 4—about one per month, the second-highest total among unit mem- bers—and worked 734.25 hours, a pace that met or ex- ceeded that in prior years. at the hearing, and it was articulated for the first time on exceptions. Un- der long-settled Board law, arguments raised for the first time on excep- tions are untimely and deemed waived. See, e.g., Thesis Painting, Inc., 365 NLRB No. 142, slip op. at 1 fn. 2 (2017); Strategic Resources, Inc., 364 NLRB No. 42, slip op. at 1 fn. 2 (2016); Yorkaire, Inc., 297 NLRB 401, 401 (1989), enfd. 922 F.2d 832 (3d Cir. 1990). Even assuming no waiver, the General Counsel’s belated argument is foreclosed because even if it is closely connected to the subject matter of the complaint (which we do not concede), it was not fully litigated. See Pergament United Sales, 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990). 3 Members had to re-register every 90 days to maintain their positions on that list. Because the Respondent operated a nonexclusive hiring hall, it was free to operate its hall solely for the benefit of its members. See, e.g., Teamsters Local 17 (Universal Studios and Warner Bros.), 251 NLRB 1248, 1257 (1980). 4 The documents that the Union was required to maintain included the out-of-work lists themselves, employer requests for named members, and the bases for referral selections. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 In October 2015, the Respondent unlawfully retaliated against Ron’s brother, Frank, by removing his name from the out-of-work list after he posted comments on Face- book that were critical of Palladino and the Respondent. See Laborers Local 91 (Council of Utility Contractors, Inc. and Various Other Employers), 365 NLRB No. 28, slip op. at 1-2 (2017). Frank filed the charge in that case on November 12, 2015.5 Ron’s last referral was on November 4. That job lasted 3 to 4 weeks. From December through May 31, 2016, Ron worked only one 7-hour job, in February 2016, and he ob- tained that job himself. The record does not show how many hours, if any, Ron worked from June 1 through De- cember 31, 2016. From January 1 to September 25, 2017, he worked just one 6-hour job. That, too, was the result of his own efforts rather than a referral. Indeed, after his November 4, 2015 referral, Ron did not receive another referral from November 4 through the close of the hearing in this case on October 12, 2017. Meanwhile, others did receive referrals. In 2015, the Respondent made a total of 75 referrals to 15 members, and Ron received the second-highest number of these. In 2016, however, the Respondent made 37 referrals to 13 individual members. Eleven of those 13 also had received referrals in 2015, but Ron did not receive any of the 2016 referrals.6 From January 1 to October 1, 2017, the Re- spondent made 36 referrals to 14 members, including the same 11 who had received referrals in 2015 and 2016. Again, Ron received none, despite ranking seventh on the out-of-work list in June 2017. In early November 2016, Ron spoke to Palladino about his lack of work. He told Palladino that, even though he was then number two on the out-of-work list, he had not been referred all year. He further emphasized to Palladino that “[h]e needed work . . . . [He hadn’t] had any work.” Ron also testified that “when I told [Palladino] where I was on the list he began to ridicule me about my brother Frankie. And I responded by telling him that I’m Ron Mantell, not Frank Mantell. I’m coming here to ask you for a job.” Palladino said that no contractors had requested Ron by name, that Ron could find his own work, and that it was not Palladino’s job to find work for him. Palladino also said that he knew that Ron planned to call the NLRB, and Palladino threatened to file internal union charges 5 All dates hereafter are in 2015 unless noted otherwise. 6 Ron testified that he was second on the out-of-work list in Novem- ber 2016. The Respondent did not dispute that assertion. 7 The judge found both Ron and Chavi credible and stated that “Chavi’s account is plausible and in many ways fuller than [Ron’s].” Chavi’s account of the conversation is consistent, however, with Ron’s testimony that Palladino ridiculed Ron about his brother Frank. Chavi did not dispute that aspect of Ron’s testimony; in fact, Chavi testified against Ron if he did so. Another union member, Matthew Chavi, overheard this conversation and testified that he believed that it was Ron (not Palladino) who first raised the subject of Ron’s brother.7 On June 26, 2017, Ron asked the hiring hall staff to show him the out-of-work list. At that time, the Respond- ent’s policy was to allow members to view the current list on request. The list was updated daily, but no revisions would be made unless there were developments that changed the ranking. In response to Ron’s request, dis- patcher Mario Neri told Ron that the list was being up- dated. Neri showed Ron the most current list and noted that two members had recently been referred to jobs. Those two had been numbers 10 and 18 on the list, while Ron was then number 7. Neri explained this apparent dis- crepancy by asserting that the two had been referred as stewards (which, if true, would have justified their out-of- order referrals). Ron promptly went to the jobsite where the two had been referred. After viewing the site and speaking with employees there, Ron concluded that the two were not serving as stewards. The next day, June 27, 2017, Ron returned to the hiring hall and again asked to see the out- of-work list. This time Neri refused, stating that Ron could not view the list “[b]ecause of what happened yes- terday,” i.e., Ron’s visit to the jobsite. Shortly after that, in late June or early July 2017, the Respondent began posting a copy of the current out-of- work list on a weekly basis instead of making the list avail- able whenever a member so requested. Although the Re- spondent continued to update the list on a daily basis for its own internal records, members no longer had access to that up-to-date list. Consequently, the posted list that members could view might be out of date by as much as a week. Analysis I. THE RESPONDENT VIOLATED SECTION 8(b)(1)(A) BY NOT REFERRING RON FROM ITS OUT-OF-WORK LIST BECAUSE OF HIS BROTHER FRANK’S PROTECTED ACTIVITY To determine whether a union operating a nonexclusive hiring hall refused to refer a member for discriminatory reasons, the Board has long applied the standard set forth in Wright Line.8 See, e.g., Ironworkers Local 340 that Palladino and Ron “went back and forth, a little bit about the family members” (i.e., Ron’s brother, father, and uncle). 8 251 NLRB 1083 (1980), enfd. 662 F.2d 889 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Man- agement Corp., 462 U.S. 393 (1983). The judge’s reliance on the criteria in FES, 331 NLRB 9, 12-15 (2000), supplemented by 333 NLRB 66 (2001), enfd. 301 F.3d 83 (3d Cir. 2002), was incorrect. As stated above, the Board has consistently adhered to the Wright Line test in hiring hall discrimination cases. LABORERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL UNION NO. 91 (SCRUFARI CONSTRUCTION CO) 3 (Consumers Energy Co.), 347 NLRB 578, 578–579 (2006); Operating Engineers Local 137 (Various Employ- ers), 317 NLRB 909, 909–910 & fn. 5, 923 (1995); Local No. 121, Plasterers, 264 NLRB 192, 192–193 (1982); see also Electrical Workers Local 429, 347 NLRB 513, 515 (2006) (“The Board applies the analytical framework laid out in Wright Line [footnote omitted] to cases in which a union is alleged to have discriminated against an em- ployee in violation of Section 8(b)(1)(A) . . . .”), remanded on other grounds 514 F.3d 646 (6th Cir. 2008).9 Applying Wright Line, we find that the General Counsel satisfied his initial burden of proving that Frank Mantell’s protected Facebook criticism of union leadership was a motivating factor in the Respondent’s sudden and simul- taneous cessation of referrals of Ron. To start, there is no dispute that Frank Mantell’s criticism of union leadership constituted protected activity and that the Respondent learned of that protected activity shortly before it stopped referring Ron to jobs for at least 2 years. Further, the Board’s decision in Frank’s case firmly establishes that the Respondent harbored unlawful animus against that protected activity. In addition, Palladino ridiculed Frank Mantell when Ron approached Palladino in early Novem- ber 2016 to discuss his nonreferrals and his desire for work. Most tellingly, there is no dispute that Ron was reg- ularly referred to jobs before his brother criticized the Un- ion and filed his NLRB charge and that, beginning imme- diately afterward, Ron never received another referral. The Board has consistently regarded such suspicious tim- ing as probative evidence of unlawful discrimination. See, e.g., Napleton 1050, Inc. d/b/a Napleton Cadillac of Lib- ertyville, 367 NLRB No. 6, slip op. at 15 (2018) (“[U]nex- plained timing can be indicative of animus.”) (citing cases); C & L Systems Corp., 299 NLRB 366, 379 (1990) (contrast in treatment of employee before and after pro- tected activity supports finding of discriminatory motiva- tion), enfd. 935 F.2d 270 (6th Cir. 1991).10 Thus, the 9 In Electrical Workers Local 429, the court of appeals found that the Board had failed to adequately support its finding that the respondent joint apprenticeship training fund was an agent of the respondent local union and remanded the case to the Board. On remand, the Board reaf- firmed its Sec. 8(b)(1)(A) violation finding based on a revised agency analysis. Electrical Workers Local 429, 357 NLRB 332, 332–335 (2011). 10 To be sure, where, as here, the union does not operate its hiring hall on a strictly “first-in, first-out” basis, the Board will not “find unlawful discrimination merely on the basis of isolated out-of-order referrals, even if the reasons for those referrals were not explained.” Operating Engi- neers Local 137, 317 NLRB at 910. But “[i]f a pattern of unexplained out-of-order referrals appeared, . . . it would be reasonable to infer that the disfavored individuals were the victims of adverse treatment.” Id. 11 The complete absence of any referrals over a 2-year period is espe- cially probative. In cases involving allegedly unlawful discrimination, the federal courts have been highly skeptical of efforts to explain away General Counsel presented a strong prima facie case under Wright Line. We further find that the Respondent has failed to prove that Ron’s referrals would have completely stopped even absent his brother Frank’s protected activity. Before the judge, the Respondent’s asserted nondiscriminatory grounds for ceasing to refer Ron were that Ron had alleg- edly objected to 1- or 2-day referrals and that he had too few special qualifications. According to the Respondent, it was becoming more common for employers to request members for 1- or 2-day jobs and to require qualifications that Ron lacked. Ron denied saying that he was not inter- ested in 1- or 2-day referrals. Additionally, the Respond- ent offered no specifics in support of these assertions and no explanation of how they could have accounted for the lack of any referrals over a 2-year period. The Board has held that such unspecific, conclusory testimony does not suffice to sustain a party’s Wright Line defense burden. See, e.g., A.P.A. Warehouse, 302 NLRB 110, 115 (1991). Moreover, Ron had the same qualifications both before and after November 2015, and the same holds true for his purported preference for multi-day jobs. As far as this rec- ord shows, Frank Mantell’s protected activity was the only factor that changed between the decades during which Ron was given regular referrals and the 2-year period dur- ing which he received none. Thus, the Respondent’s stated reasons for failing to refer Ron are pretextual, and the Wright Line analysis properly ends there. See, e.g., Golden State Foods Corp., 340 NLRB 382, 385 (2003). But even assuming the second part of the Wright Line analysis is reached, the Respondent has not persuaded us that Ron would have received no referrals for 2 years even absent his brother’s protected activity.11 Accordingly, for the foregoing reasons, we find that the Respondent violated Section 8(b)(1)(A) by refusing to re- fer Ron Mantell because of his brother’s protected criti- cism of union leadership.12 the “inexorable zero.” See, e.g., Teamsters v. United States, 431 U.S. 324, 342 fn. 23 (1977); Capaci v. Katz & Besthoff, Inc., 711 F.2d 647, 662 (5th Cir. 1983), cert. denied 466 U.S. 927 (1984). 12 Because of the 6-month limitation period in Sec. 10(b) of the Act, we find violations with respect to, and order remedies for, only discrim- inatory refusals to refer Ron beginning October 12, 2016, 6 months be- fore he filed the charge on April 12, 2017. However, we may, and do, consider evidence outside the 10(b) period in finding that the Respondent unlawfully refused to refer Ron starting in October 2016. See, e.g., Grimmway Farms, 314 NLRB 73, 74 (1994) (pre–10(b) period evidence may be considered as bearing on motivation), enfd. in part 85 F.3d 637 (9th Cir. 1996). Further, any dispute that arises over the amount of make- whole relief due to Ron under our order may be resolved in compliance. See GC’s exceptions brief at 10 fn. 11 (“Respondent’s liability relative to any particular referral during the 10(b) period is rightfully reserved for the compliance stage.”). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 II. THE RESPONDENT VIOLATED SECTION 8(b)(1)(A) BY CHANGING ITS PRACTICE OF MAKING THE CURRENT OUT- OF-WORK LIST AVAILABLE ON REQUEST TO A PRACTICE OF POSTING IT ONCE A WEEK The General Counsel alleges that in late June or early July 2017, the Respondent violated Section 8(b)(1)(A) by discontinuing its practice of allowing members to request the current out-of-work list, and instituting a practice of posting the list once a week instead, in retaliation for Ron’s June 26, 2017 jobsite visit to determine whether the Respondent’s explanation for referring two lower-ranking members ahead of him was truthful. The judge dismissed this allegation. In doing so, he assumed for argument’s sake that the General Counsel had satisfied his burden un- der Wright Line of proving that Ron’s protected investiga- tion was a motivating factor in the Respondent’s decision to change its practice. The judge then found, however, that the Respondent had shown that it would have changed the list-viewing procedure even absent Ron’s protected in- vestigation. Specifically, the judge relied on Neri’s testi- mony that there had been an uptick in members’ requests to see the list and that responding to those requests had become disruptive and “an aggravation.” For the follow- ing reasons, we reverse. In determining whether this change in hiring hall proce- dures violated the Act, we apply Wright Line, supra. To begin, we find that the General Counsel satisfied his initial Wright Line burden. There are no exceptions to the judge’s findings that Ron’s jobsite investigation was “classic protected activity” and that the Respondent knew about that activity when it changed its practice. We fur- ther find that the General Counsel proved that the Re- spondent harbored animus toward that activity. As ex- plained above, the judge made a separate, unexcepted-to finding that Dispatch Manager Neri unlawfully refused to show Ron the out-of-work list on June 27, 2017, because of his protected investigation the day before. Addition- ally, the Respondent’s change in policy (in late June or early July 2017) came right on the heels of Ron’s pro- tected investigation. See, e.g., North Carolina Prisoner Legal Services, 351 NLRB 464, 468 (2007) (decision shortly after protected activity strongly supports inference of unlawful motivation); Electrical Workers Local 429, supra, 347 NLRB at 517 (timing of union action strongly suggests unlawful motivation). In defense, the Respondent asserted that it changed the procedure because members’ requests to see the list were becoming administratively inconvenient. We find this ex- planation insufficient to sustain the Respondent’s burden under Wright Line. The Respondent’s defense was based solely on Neri’s brief and general testimony that the change was implemented to conserve administrative resources. Neri testified that he was “bothered” by the “flurry” of people asking for—and taking pictures of—the out-of-work list. He offered no specifics to support these assertions. He provided no details, for example, on how often members were asking to view the list or how much more time it was taking to fulfill those requests as com- pared to the past. As discussed earlier, such conclusory testimony does not sustain a party’s defense burden of proving that it would have taken the same action regard- less of protected activity. See, e.g., A.P.A. Warehouse, su- pra, 302 NLRB at 115; see also, e.g., Hicks Oils & Hicksgas, 293 NLRB 84, 85 (1989) (a party cannot carry its defense burden under Wright Line by showing it had a legitimate reason for its action but rather must show by a preponderance of the evidence that it would have taken the same action even without the protected conduct), enfd. 942 F.2d 1140 (7th Cir. 1991). This is particularly the case where the General Counsel’s prima facie case of un- lawful motivation is strong and the Respondent’s explana- tion itself suggests that it made the change because it was “bothered” by Ron’s—and possibly other employees’— efforts to police the list. Accordingly, we find that the Re- spondent violated Section 8(b)(1)(A) by changing its list- viewing procedure from one that permitted members to view an up-to-date out-of-work list on request to one that limited members’ list-viewing rights to a weekly posting. AMENDED CONCLUSIONS OF LAW 1. Add the following as Conclusion of Law 2 and re- number Conclusions of Law 2 and 3 as 3 and 4. “2. The Respondent violated Section 8(b)(1)(A) of the Act, since October 12, 2016, by refusing to refer Charging Party Ronald Mantell from its out-of-work list because of his brother Frank Mantell’s protected concerted activi- ties.” 2. Add the following as Conclusion of Law 5 and re- number Conclusion of Law 4 as 6. “5. The Respondent violated Section 8(b)(1)(A) of the Act in or around late June or early July 2017 by changing its practice of making an up-to-date out-of-work list avail- able to members to review on demand to a practice of post- ing an updated out-of-work list on a weekly basis.” AMENDED REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found that the Respondent violated Section 8(b)(1)(A) by refusing to refer Ronald Mantell from its out-of-work re- ferral list since October 12, 2016, we shall order the Re- spondent to make Mantell whole for any loss of earnings and other benefits suffered as a result of the unlawful LABORERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL UNION NO. 91 (SCRUFARI CONSTRUCTION CO) 5 discrimination against him during that time period. Back- pay shall be computed in accordance with F. W. Wool- worth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medi- cal Center, 356 NLRB 6 (2010). In addition, we shall order the Respondent to compen- sate Ronald Mantell for any adverse tax consequences of receiving a lump-sum backpay award and to file with the Regional Director for Region 3, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the appropriate calendar year(s). AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016). In accordance with King Soopers, Inc., 364 NLRB No. 93 (2016), enfd. in relevant part 859 F.3d 23 (D.C. Cir. 2017), we shall also order the Respondent to compensate Mantell for his search-for-work and interim employment expenses regardless of whether those expenses exceed in- terim earnings. Search-for-work and interim employment expenses shall be calculated separately from taxable net backpay, with interest at the rate prescribed in New Hori- zons, supra, compounded daily as prescribed in Kentucky River Medical Center, supra. Further, the Respondent shall be required to remove from its files any references to its refusals to refer Ronald Mantell from the out-of-work list since October 12, 2016, and to notify him in writing that this has been done and that the refusals to refer will not be used against him in any way. Finally, the Respondent shall be required to restore its practice of allowing members to review the most current version of its out-of-work list whenever members so re- quest.13 The Respondent also shall allow Mantell to view the out-of-work list as it existed on June 27, 2017, if that document is still available. ORDER The National Labor Relations Board orders that the Re- spondent, Laborers’ International Union of North Amer- ica, Local Union No. 91, Niagara Falls, New York, its of- ficers, agents, and representatives, shall 1. Cease and desist from (a) Refusing to refer Ronald Mantell or any other mem- ber from its out-of-work list in retaliation for activity pro- tected by Section 7 of the Act. (b) Threatening to bring internal union charges against Ronald Mantell or any other member because he or she contacted, or planned to contact, the NLRB. 13 Our order does not require the Respondent to cease posting the out- of-work list on a weekly basis (or more frequently) if it wishes to (c) Refusing to allow Ronald Mantell or any other mem- ber to review the most current out-of-work list in retalia- tion for activity protected by Section 7 of the Act. (d) Restricting access to its most current out-of-work list in retaliation for activity protected by Section 7 of the Act. (e) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. (a) Within 14 days from the date of this Order, notify Ronald Mantell in writing that it will refer him from its out-of-work list in his rightful order of priority, without regard to the exercise of Section 7 rights by him or his brother. (b) Make Ronald Mantell whole for any loss of earnings and other benefits suffered as a result of its unlawful re- fusal to refer him from the out-of-work list, in the manner set forth in the amended remedy section of this decision. (c) Within 14 days from the date of this Order, remove from its files any references to its refusals to refer Ronald Mantell from the out-of-work list since October 12, 2016, and, within 3 days thereafter, notify him in writing that this has been done and that the refusals to refer will not be used against him in any way. (d) Compensate Ronald Mantell for the adverse tax con- sequences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 3, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the appropriate calendar year(s). (e) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all hiring hall and referral records, and any other records and documents, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due un- der the terms of this Order. (f) Within 14 days from the date of this Order, permit Ronald Mantell to review the out-of-work list as it ex- isted on June 27, 2017, if that document is still available. (g) Restore its practice of making the most current out- of-work list available for review by members upon re- quest. (h) Within 14 days after service by the Region, post at its hiring hall in Niagara Falls, New York, and all other places where notices to members are customarily posted, continue such posting in addition to making an updated list available to members on request. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 copies of the attached notice marked “Appendix.”14 Cop- ies of the notice, on forms provided by the Regional Di- rector for Region 3, after being signed by the Respond- ent’s authorized representative, shall be posted by the Re- spondent and maintained for 60 consecutive days in con- spicuous places, including all places where notices to members are customarily posted. In addition to physical posting of paper notices, the notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Re- spondent customarily communicates with its members by such means. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, defaced, or covered by any other material. (i) Within 21 days after service by the Region, file with the Regional Director for Region 3 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to com- ply. Dated, Washington, D.C. August 12, 2019 ______________________________________ John F. Ring, Chairman ______________________________________ Marvin E. Kaplan, Member ______________________________________ William J. Emanuel, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join or assist a union Choose representatives to bargain on your behalf with your employer 14 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 Naional Labor Relations Board” shall read “Posted Pursuant to a Judgment of the Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected ac- tivities. WE WILL NOT refuse to refer Ronald Mantell or any other member from our out-of-work list in retaliation for activity protected by Section 7 of the Act. WE WILL NOT threaten to bring internal union charges against Ronald Mantell or any other member because he or she contacted, or planned to contact, the NLRB. WE WILL NOT refuse to allow Ronald Mantell or any other member to review the most current out-of-work list in retaliation for activity protected by Section 7 of the Act. WE WILL NOT restrict access to our most current out-of- work list in retaliation for activity protected by Section 7 of the Act. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights listed above. WE WILL, within 14 days from the date of the Board’s Order, notify Ronald Mantell in writing that we will refer him from our out-of-work list in his rightful order of pri- ority, without regard to the exercise of Section 7 rights by him or his brother. WE WILL make Ronald Mantell whole, with interest, for any loss of earnings and other benefits resulting from our refusal to refer him. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any references to our refusals to refer Ronald Mantell from the out-of-work list since October 12, 2016, and WE WILL, within 3 days thereafter, notify him in writing that this has been done and that the refusals to refer will not be used against him in any way. WE WILL compensate Ronald Mantell for the adverse tax consequences, if any, of receiving a lump-sum back- pay award, and WE WILL file with the Regional Director for Region 3, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the appropriate cal- endar year(s). WE WILL, within 14 days from the date of the Board’s Order, permit Ronald Mantell to review the out-of-work list as it existed on June 27, 2017, if that document is still available. WE WILL restore our practice of making the most current out-of-work list available for review by members when- ever they so request. LABORERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL UNION NO. 91 United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” LABORERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL UNION NO. 91 (SCRUFARI CONSTRUCTION CO) 7 The Board’s decision can be found at https://www.nlrb.gov/case/03-CB-196682 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Rela- tions Board, 1015 Half Street, S.E., Washington, DC 20570, or by calling (202) 273-1940. Eric Duryea, Esq. and Jesse Feuerstein, Esq., for the General Counsel. Robert L. Boreanaz, Esq. (Lipsitz Green Scime Cambria LLP), of Buffalo, New York, for the Respondent. DECISION INTRODUCTION DAVID I. GOLDMAN, ADMINISTRATIVE LAW JUDGE. In a recent case the National Labor Relations Board (Board) found that a local union that operated a nonexclusive hiring hall unlawfully discriminated against a union member by removing him from the Union’s out-of-work referral list in retaliation for his criticism of the local union’s business manager. Here, the same local union is alleged to have committed a series of violations of the National Labor Relations Act (Act) directed towards the brother of the discriminatee in the earlier case. As discussed herein, I find that in these cases the govern- ment’s allegation that a local union member was unlawfully de- nied referrals from the local union’s hiring hall because of his relationship with his brother is unproven under the appropriate legal standards. I also find that, even assuming the truth of the allegation that he was subject to internal union discipline because of his brother’s protected activity, in this case the union’s disci- pline was not prohibited by the Act. I do find, as alleged, that on one occasion the union member was unlawfully threatened with 1 I note that in its answers, the Respondent denied knowledge and information sufficient to form belief as to the truth of the allegations of the complaint relating to the filing and service of the various charges and amended charges in these cases. However, there was no objection to the offer into evidence of the formal papers, including the charges, thus con- ceding, I find, the authenticity of the charges. Their service is supported by affidavits of service (See, GC Exh. 1(b), (c), and (f)) included in the formal papers, and I find that in the absence of any contrary evidence, the rebuttable presumption of service provided by these affidavits con- stitute “sufficient proof” to establish service pursuant to Sec. 102.4(d) of the Board’s Rules and Regulations. See, CCY New Worktech, Inc., 329 retaliation if he contacted the Board, and on another that he was unlawfully denied an opportunity to review the out-of-work re- ferral list for discriminatory reasons. Finally, I find that the local union’s change to weekly posting of the out-of-work list did not violate the Act. STATEMENT OF THE CASE On April 12, 2017, Ronald J. Mantell (Mantell) filed an filed an unfair labor practice charge alleging violations of the Act by Laborers International Union of North America, Local Union No. 91 (the Local or Local 91 or Union), docketed by Region 3 of the Board as Case 03–CB–196682. A first amended charge was filed in the case on April 24, 2017. Based on an investiga- tion into this charge, on June 29, 2017, the Board’s General Counsel, by the Regional Director for Region 3 of the Board, issued a complaint and notice of hearing in this case. Local 91 filed an answer denying all violations on July 13, 2017. On June 27, 2017, Mantell filed an additional charge against Local 91, docketed by Region 3 of the Board as Case 03–CB– 201412. On August 23, 2017, the Board’s General Counsel, by the Regional Director for Region 3, issued an order consolidating Cases 03–CB–196682 and 03–CB–201412, and a consolidated complaint and notice of hearing. Local 91 filed an answer to the consolidated complaint on September 6, 2017, denying all vio- lations alleged. The General Counsel issued an amendment to the consolidated complaint on September 25, 2017. Local 91 filed an answer to the amended consolidated complaint on Octo- ber 9, 2017.1 A trial in these cases was conducted on October 11 and 12, 2017, in Buffalo, New York.2 Counsel for the General Counsel and counsel for the Respondent filed posttrial briefs in support of their positions on November 30, 2017. On the entire record, I make the following findings, conclu- sions of law, and recommendations. JURISDICTION It is admitted (GC Exh. 1(r)) and I find that at all material times, Scrufari Construction Co. Inc. (Scrufari) has been a cor- poration with an office and place of business in Niagara Falls, New York, and has been a general contractor in the construction industry doing commercial construction. It is admitted (GC Exh. 1(r)) and I find that at all material times, the Council of Utility Contractors, Inc., the Independent Builders of Niagara County, the Associated General Contractors of America, New York State Chapter, Inc., and the Building Industry Employer’s Association of Niagara County New York, Inc., collectively referred to as the Associations, have been organizations composed of various em- ployers, including Scrufari, engaged in the construction industry, NLRB 194, 194 (1999); Sears Roebuck and Co., 117 NLRB 522 fn. 3 (1957). There is no evidence suggesting that they were not served. There is no hint of any basis in the record for the Respondent’s repeated denials of the various complaint allegations regarding the filing and service of the charges. 2 At the outset of the trial, counsel for the General Counsel offered an unopposed oral motion to further amend the consolidated complaint, re- phrasing, par. 5. The motion was granted and in wake of the motion the counsel for the Respondent represented that para. 5 of the complaint was admitted. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 one purpose of which is to represent its employer-members in negotiating and administering collective-bargaining agreements with various labor organizations, including Local 91. It is ad- mitted (GC Exh. 1(r)) and I find that annually, the employer- members of each of the Associations, in the course of their busi- ness operations described above, collectively, purchase and re- ceive goods valued in excess of $50,000 directly from points out- side the States wherein the employer-members are located. Based on the above, I find that at all material times Scrufari and the employer-members of the Associations have been engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. It is admitted and I find that at all material times Local 91 has been a labor organization within the meaning of Section 2(5) of the Act. Based on the foregoing, I find that this dispute affects commerce and that the Board has jurisdiction of this case, pursuant to Section 10(a) of the Act. UNFAIR LABOR PRACTICES A. The refusal to refer Local 91 is located in Niagara Falls, New York, and is com- posed of approximately 240 members. It operates a nonexclu- sive hiring hall from its offices. As a nonexclusive hiring hall, the Local refers members for work, but members are free to and do obtain work directly from signatory contractor-employers without going through the hiring hall. The Local maintains an out-of-work list that members sign up for and which is used in referrals. Although the rules are too extensive to summarize here (see R. Exh. 1), members who sign up for the out-of-work list are listed in order of date signed up. While members are often sent out in the order they signed up for the list, there are numerous and significant exceptions that limit this. For instance, employers may ask for specific employees by name and they will be sent out without regard to their place on the list. The business manager has discretion to name a steward for every job, without following the order on the list. Employees requiring additional hours to qualify for unemployment or other fund eligibility are referred above other applicants, without re- gard to their place on the list. Requests for foremen are filled by the business manager without regard to the list. In addition, of course, each job for which employers seek employees requires certain certifications or qualifications that the employee must have demonstrated in order to be referred to that job. Employees are required to re-register for the out-of-work list within 90 days in order to maintain their position on the list. Employees finding work on their own of one or more jobs that in the aggregate last 5 working days or more must advise the Local and are then re- moved from the out-of-work list. The Union’s business manager, Richard Palladino, is the pri- mary person who determines which members get referred. The 3 Laborers’ International Union of North America Local Union No. 91 (Council of Utility Contractors, Inc.), 365 NLRB No. 28 (2017). 4 Unexplained is why Mantel’s work history documentation (GC Exh. 3) shows no work for Scrufari in November until November 30, for a job that lasted until December 18. Whether or not this is the same job for which he was referred, with a start of date of November 4, is not ex- plained in the record. 5 Thus, the record evidence leaves us with the following, very incom- plete, information. Mantell’s work resulting in pension credit, which Local’s part-time jobs dispatcher, Mario Neri, has primary re- sponsibility for maintaining the out-of-work list. In a recent decision3, the Board found that the Local unlaw- fully removed a member, Frank Mantell, from its out-of-work list referral list from October 12 until November 19, 2015, in re- taliation for his Facebook postings critical of the Local’s busi- ness agent, Palladino. Mantell made his critical posts in August 2015. As found by the Board, Palladino filed internal union charges against Frank Mantell in early September 2015. A union trial board conducted a trial and found Mantell guilty on October 5, a decision ratified at the Local’s monthly membership meeting on October 12. Mantell was removed from the out-of-work re- ferral list the next day. He appealed to the International Union and the International Union apprised the Local of the appeal on November 19, which stayed any penalty assessed against Man- tell. On December 4, 2015, the International Union informed the Local that it dismissed the charges against Mantell. Frank Mantell’s brother, Ronald Mantell (hereinafter Man- tell), is a 27-year member of the Local Union. Mantell testified that over the years he has regularly gotten work through the hir- ing hall. Mantell testified that he was last referred out in No- vember 2015 for a job that lasted 3 to 4 weeks. He then signed back up for the out-of-work list and was not, thereafter, referred from the out-of work list. The Respondent’s witnesses appear to acknowledge this, and it seems to be supported based on the doc- umentary evidence placed into the record. Thus, General Coun- sel’s Exhibit 16—entered into evidence during the cross-exami- nation of the Local Union’s dispatcher Neri—shows that be- tween January 1, 2015 and October 10, 2017, Mantell’s last re- ferral from the Local was on November 4, 2015.4 According to this document, there were no more referrals of Mantell in 2016 or 2017 (through October 1, 2017, the ending point for the doc- ument). Previously in 2015, Mantell had worked steadily. (GC Exh. 3.) Indeed, his annual pension crediting (GC Exh. 2), which shows hours worked by fiscal year (ending each May 31 of the year) shows that Mantel worked more hours in fiscal 2015 (i.e., through May 31) than he had in any year since 2009. He worked steadily in fiscal year 2016 (i.e., from June 1, 2015 forward) through November 2015. However, after that, he only worked one 7-hour job in early 2016.5 It is notable that no testimony and neither of these documents (GC Exhs. 2 & 3) distinguish between work Mantell may have obtained directly through a signatory employer, and work for which he was sent out from the Union’s out-of-work list. More- over, General Counsel’s Exhibit 16, the document showing re- ferrals in 2015–2017, does not show how many hours resulted from each referral or whether those referrals were the result of employer calls for specific employees, or what qualifications or would include work for signatory contractors obtained directly by him- self and through the local union, amounted to a total of: 585.50 hours in fiscal year 2011 (through May 31, 2011) 1090.5 hours in fiscal year 2012 (through May 31, 2012) 738.25 hours in fiscal year 2013 (through May 31, 2013) 755 hours in fiscal year 2014 (through May 31, 2014) 1121 hours in fiscal year 2015 (through May 31, 2015) 741.25 hours in fiscal year 2016 (through May 31, 2016). LABORERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL UNION NO. 91 (SCRUFARI CONSTRUCTION CO) 9 certifications were required for any of these jobs. The document merely shows that Mantell was sent out on certain jobs with a certain employer, starting on a certain date. Indeed, the dates of referral listed on General Counsel Exhibit 16 for Mantell do not, or in some cases only loosely, match the dates he began work at a job as shown in in General Counsel Exhibit 2. This makes it impossible to conclude, even for the one year—Fiscal 2016—for which the record contains documentation from which such com- parison can be attempted, how many of Mantell’s 741 hours in Fiscal 2016 resulted directly or indirectly from referrals. Even as to the referrals, there is no evidence as to whether these jobs were filled by Mantell (or others) based on their position on the out-of-work list, or based on employer preference for certain em- ployees, stewardship, or other basis. We do not even know the dates or place that Mantell was on the out-of-work list during the nealy two-year period in question, with the exception of an out- of-work list in evidence from one day, June 21, 2017, that showed Mantell listed seventh for that date. Analysis The General Counsel alleges that Local 91 violated Section 8(b)(1)(A) of the Act by refusing, since November 2015, to refer Mantell for work from the Local’s out-of-work referral list in re- taliation for the protected and concerted activity of his brother. While the Local does not owe employees a duty of fair repre- sentation with regard to referrals from a nonexclusive hiring hall,6 it is a violation of Section 8(b)(1)(A) to refuse to refer members for employment in retaliation for protected and con- certed activity. Laborers Local 91, 365 NLRB No. 28, slip op. at 1 (2017). The Board finds that the loss of referrals “deprive[s] [the charging party] of employment opportunities” and thereby affects employment in violation of Section 8(b)(1)(A). Laborers Local 91, supra at slip op. 1. Analysis of an 8(b)(1)(A) allegation of this type is analogous to analysis of an 8(a)(3) discrimination claim against an em- ployer, and thus, in assessing motivation-based 8(b)(1)(A) dis- crimination cases, the Board uses the analysis for assessing em- ployer discrimination established by the Board in Wright Line, 251 NLRB 1083 (1980). Plasters Local 121, 264 NLRB 192 (1982); Electrical Workers Local 429, 347 NLRB 513, 515 (2006), remanded on other grounds 514 F.3d 646 (6th Cir. 2008). Under the Board’s decision in Wright Line, the General Coun- sel bears the initial burden of showing that a respondent's deci- sion to take adverse action against an employee was motivated, at least in part, by animus against protected activity. Such show- ing proves a violation of the Act subject to the following affirm- ative defense: the respondent, even if it fails to meet or neutralize the General Counsel's showing, can avoid the finding that it vio- lated the Act by demonstrating by a preponderance of the evi- dence that the same action would have taken place even in the absence of the protected conduct. Willamette Industries, 341 NLRB 560, 563 (2004). In this instance, the outcome of this allegation turns on the 6 Carpenters, Local 370 (Eastern Contractors Ass’n), 332 NLRB 174, 174–175 (2000). Because the hiring hall is nonexclusive, the un- ion’s failure to refer does not prevent an employee from being hired. 7 As counsel for the Respondent argued at the hearing: manner in which the Wright Line analysis is applied. Specifi- cally, the issue turns on the question of whether the General Counsel successfully met his initial burden under Wright Line sufficient to prove unlawful motivation on the part of the Re- spondent and shift the burden to the Respondent to prove that it would have taken the same action in the absence of Mantell’s brother’s protected activity. The centrality of the assignment of burdens of proof arises be- cause the parties in this case chose not to develop a record that would shed light on the appropriateness or inappropriateness of any referral for Mantell to any specific job or in any specific in- stance. There is no record evidence as to which jobs the Local discriminatorily failed to send Mantell. There is no evidence of any particular job to which it can be said that the Local violated its rules (discriminatorily or otherwise) in not referring Mantell to this job. Based on the record evidence, we do not know the qualifications, employer requests, or rationale of those chosen for any of the referrals taking place during the nearly two-year time period in which the Local is alleged to have discriminated against Mantell. We do not know Mantell’s record of re-regis- tering for the list, or when he was or was not on the list or what place he was on the list. Indeed, an out-of-work list is in evi- dence for only one day’s job referral, a list dated June 21, 2017, used for referrals to a job on June 26, 2017, and there is no evi- dence as to the type of job or circumstances surrounding the em- ployer’s call for labor, and no direct evidence of the basis for the referrals made. In his brief, the General Counsel asserts that it is the Respond- ent’s burden and obligation to fill out this hole in the record. The General Counsel asserts that it has met its initial burden to prove that there was a discriminatory motive for Mantell’s failure to obtain these referrals. Thus, the General Counsel relies on the (already-proven) animus towards Mantell’s brother and the fact that referrals evaporated for Mantell after November 2015, to contend that he has proved that the Respondent’s failure to refer Mantell for a nearly 2-year period was discriminatorily moti- vated. According to the General Counsel, the burden shifts to the Respondent to show that the referrals occurring during the violation period would have been made even in the absence of Mantell’s (brother’s) protected activity. Thus, according to the General Counsel, the absence of record evidence about the refer- rals—whether or not Mantell was qualified, whether or not an employer asked for other employees, whether or not others were ahead of Mantell on the out-of-work list, or even if or where Mantell was on the out-of-work list for a particular referral—this is all the Respondent’s problem. The Respondent, on the other hand argues that the lack of ev- idence about the referrals shows that the General Counsel has failed to meet his initial burden. The Respondent argues that the General Counsel has not shown a single specific job referral in which there has been discriminatory treatment, or in which the Union’s rules were not followed.7 The Board hasn't proved that he was entitled to a referral and was not referred out on any given day. And so they have to prove that he didn't get a referral and he should've gotten a referral on a particular date within the 10(b) statute. They haven't proved that at all. No proof whatsoever of that. All they've got is a witness saying, I haven't been DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 I believe that the Respondent has identified a significant prob- lem with the General Counsel’s approach in this instance. The General Counsel is relying on an application of the Wright Line framework used in cases where an employer has discharged or disciplined an incumbent employee. In that scenario, the ele- ments required for the General Counsel to show that protected activity was a motivating factor in an employer's adverse action are summarized as a three-prong test of protected activity, em- ployer knowledge of that activity, and animus on the part of the employer. Libertyville Toyota, 360 NLRB 1298, 1301 (2014); enfd. 801 F.3d 767 (7th Cir. 2015). Under the three-prong discharge/discipline Wright Line framework, the General Counsel would likely be able to satisfy its initial burden of proof and shift the burden to the Respondent to prove that it would have taken the same referral actions in the absence of protected activity. Thus, even cursory review of the Board’s findings in Laborers Union Local 91, 365 NLRB No. 28 (2017) demonstrates that Mantell’s brother (Frank Mantell) en- gaged in protected activity and that the Respondent was aware of it. This is all undeniable, as a matter of collateral estoppel. Great Lakes Chemical Corp., 300 NLRB 1024, 1024–1025 fn. 3 (1990), enfd. 967 F.2d 624 (D.C. Cir. 1992). The Board also found in that case that there was unlawful animus towards Frank Mantell, which the Respondent acted upon illegally. That un- lawful retaliation would support the inference that Mantell’s fail- ure to be referred was motivated by additional retaliation for his brother’s protected and concerted activity.158 Most significantly, especially combined with the demonstrated animus towards Frank Mantell’s protected activity, the abrupt cessation of refer- rals for Ron Mantell after November 2015, supports this conclu- sion. This was the same month in which Frank Mantell filed his NLRB charges. The Board has long recognized that in discrim- ination cases unexplained timing can be indicative of animus. Electronic Data Systems, 305 NLRB 219, 220 (1991), enfd. in relevant part 985 F.2d 801 (5th Cir. 1993); North Carolina Pris- oner Legal Services, 351 NLRB 464, 468 (2007), citing Davey Roofing, Inc., 341 NLRB 222, 223 (2004).9 However, and notwithstanding the foregoing, I do not believe that a union failure-to-refer case such as this one is properly anal- ogized to a discharge or disciplinary case. Rather, the most apt analogy is to a Wright Line-based refusal-to-hire case. See FES (A Division of Thermo Power), 331 NLRB 9 (2000). Such cases incorporate standards into the General Counsel’s Wright Line burden that recognize—in contrast to a discharge or discipline referred. But they haven't proved that he should have been referred. That he was eligible for referral. And that the referral was a violation of a policy or a procedure or motivated by some protected activity; by either the brother's Facebook or by—in fact, by the brother's Facebook. So they haven’t demonstrated that at all. What referral did he not get was in the 10(b) time period? 8 The Board has held that retaliation against an employee person in order to retaliate against his relative who was a union activist is unlawful. Tasty Baking Co., 330 NLRB 560 (2000); American Ambulette Corp., 312 NLRB 1166, 1169–1170 (1993); Thorgren Tool & Molding, 312 NLRB 628, 631 (1993); NLRB v. Advertisers Mfg. Co., 823 F.2d 1086, 1088-1089 (7th Cir. 1987) (“to retaliate against a man by hurting a mem- ber of his family is an ancient method of revenge, and is not unknown in case—that the inferred linkage between animus and the refusal to hire is tenuous absent evidence that the potential employee was within the set of feasible applicants for the job he was de- nied. Thus, in a refusal-to-hire case, “the General Counsel must, under the allocation of burdens set forth in Wright Line,” first show the following at the hearing on the merits: (1) that the respondent was hiring, or had concrete plans to hire, at the time of the alleged unlawful conduct; (2) that the applicants had experience or training relevant to the announced or generally known requirements of the positions for hire, or in the alterna- tive, that the employer has not adhered uniformly to such re- quirements, or that the requirements were themselves pre- textual or were applied as a pretext for discrimination; and (3) that antiunion animus contributed to the decision not to hire the applicants. Once this is established, the burden will shift to the respondent to show that it would not have hired the applicants even in the absence of their union activity or affiliation. FES, 331 NLRB at 12 (footnote omitted). This is relevant in the instant case as well. ere, the General Counsel argues that without any evidence of what work was needed or what happened in any specific referral, or even where or if Mantell was on the referral list, the Wright Line burden has been met, discrimination has been proven as a contributing factor to nearly 2 years of nonreferrals, and the burden has shifted to the Respondent to prove that for each referral it made during this extended period Mantel did not have the skills, qualifications, certifications, or otherwise would not have been referred even in the absence of (his brother’s) protected activity. By relying on the discipline/discharge standard, the General Counsel can contend that he has adequately proven that discrim- ination caused Mantell to not get referrals, perhaps every referral that the Local made during this extended period, an unrealistic presumption that is not in accord with the goals of Wright Line when we know so little about the referrals that were made. In- deed, this is precisely the analogous unfairness that the Board reacted to and guarded against in FES, when it defined the use of Wright Line in hiring discrimination cases against employers to include in the General Counsel’s initial burden of proof the showing not only of discriminatory motive, but that the discrim- inatee possessed “experience or training relevant to the an- nounced or generally known requirement of the positions for hire.” 331 NLRB at 12. What is due the employer in a refusal- to-hire case is certainly due the union in the refusal-to-refer case.10 the field of labor relations”) (citing cases), enfg. Advertiser's Mfg. Co., 280 NLRB 1185 (1986). 9 Finally, the General Counsel relies on the testimony of former Busi- ness Agent Robert Connelly, who testified that during a membership meeting in the Spring of 2017, Palladino warned members that “anyone going to the NLRB . . . has got another thing coming,” “we’re coming back after you,” and “you better think twice about going to the NLRB before you bring us up on charges.” Palladino denied that he made those statements. Given my resolution of the case, I do not resolve that credi- bility dispute. 10 I note that the General Counsel also analogizes this case to a refusal- to-hire case. Thus, in contesting the Union’s 10(b) defense (GC Br. at 26), the General Counsel relies (solely) on a refusal-to-hire case (La-Z- LABORERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL UNION NO. 91 (SCRUFARI CONSTRUCTION CO) 11 A further complication in this matter is added by the statute of limitations defense raised by the Respondent. The General Counsel alleges that the discriminatory refusal to refer began af- ter Mantell’s last referral in November 2015 and continued there- after. The charge was filed in April 2017. The General Counsel concedes (Tr. 192) that the 10(b) period and any violation found would begin October 2016. While I do agree with the General Counsel that each discriminatory failure to refer is a new viola- tion—and hence, I disagree with the Respondent’s argument at trial that under the General Counsel’s theory the entire alleged violation is time-barred—the 10(b) issue adds to the uncertainty surrounding the General Counsel’s generalized every-referral-is- a-presumptively-discriminatory referral theory. Thus, the Gen- eral Counsel’s claim is that long after Mantell’s brother engaged in his protected activity—nearly one year after he filed his charge and 11 months after the Local allegedly began discrimi- nating against Mantell—all of the referrals from October 2016 forward—of which we know almost nothing—have been shown to have continued to be discriminatorily denied to Mantell. It could be true, but we do not know enough to conclude that it more than likely is. It is unproven. Thus, in order to meet its initial burden, the General Counsel must show more than merely that referrals were made and Man- tell did not get called for them. The burden must be on the Gen- eral Counsel to demonstrate, at least, that an inference of dis- crimination is warranted because under an application of non- discriminatory rules Mantell would have or should have been chosen for the referrals. The General Counsel must show, at least with a representative sample of referrals during the period it alleges that Mantell was not referred out for discriminatory reasons, that Mantell had the qualifications for the work, that he was on the out-of-work list, and that the employees chosen for the work instead of Mantell were chosen although Mantell was entitled to be chosen under the Local referral rules. The General Counsel has not demonstrated this to be the case in even one in- stance. Under a refusal-to-hire Wright Line standard, the case here fails. Much like in Allstate Power VAC, Inc., 354 NLRB 980 (2009), an employer refusal-to-hire case where the record did not establish when or on what basis employees other than the dis- criminatees were hired, “[t]here is simply too much left un- proved to find that the General Counsel has established that, at the time in question, the Respondent was hiring for a field tech- nician position for which the seven overt salts may have had the necessary experience or training.” Id. at 981. The Board con- cluded: “In these circumstances, we find that the General Coun- sel has failed to meet his initial burden under FES.” Id. I think the same must be concluded here. I recognize that it is suspicious that Mantell stopped receiving referrals after Novem- ber 2015. Yet we know little—nothing really—about how many referred jobs one could reasonably expect for him to have Boy Tennessee, 233 NLRB 1255, 1255 fn. 1, 1257–1258 (1977)) as the basis to argue that the instant refusal-to-refer violation, which arguably arose 17 months before a charge was filed, is a continuing violation, and thus, not entirely time-barred. 11 Mantell testified that he called an International Union official in Washington, D.C. to tell him about the conversation he had with received in 2016 and 2017 because we know nothing about the jobs, length of employment, qualifications, foremen jobs, stew- ard jobs, adherence to sign-in procedures, requests by employers for particular employees, other employees, or much else. Basi- cally, the nub of the General Counsel’s case comes down to the fact that beginning during a time of proven animus towards Man- tell’s brother, Mantell was among the 15 employees referred out repeatedly in 2015, but he was not referred out in 2016 or 2017. We know that a total of only 13 different employees were re- ferred out during—on some basis—by the Local in 2016. See GC Exh. 16. We know that a total of 14 different employees— were referred out—on some basis—in 2017 (through October 1). This compares with 15 different employees (including Mantell) who were referred out—on some basis—in 2015. See GC Exh. 16. For each of these years, we do not know how many of these were referred out in order from the out-of-work list, how many were stewards, how many were requested by the employers, or what type of work was at issue. These are not compelling num- bers in a local union of 240 members where 150–160 members go to work on their own, and never rely on the out-of-work list. Given the vagaries and uncertainties of the referral system, I conclude that that the evidence is inadequate to satisfy the Gen- eral Counsel’s Wright Line burden if, as I believe appropriate, a refusal-to-hire Wright Line analysis is utilized. As in Allstate Power VAC, Inc., “[t]here is simply too much left unproved.” I recognize, as with any case in which the alleged violation is un- proven, rather than disproven, there is the risk of the culpable being let go without sanction. This is a necessary byproduct of the rule of law. In my view that risk must be countenanced based on the record evidence here. I recommend dismissal of the re- fusal-to-refer allegations. B. The threat to file internal union charges if Mantell contacted the NLRB Mantell testified to a conversation he had with Palladino at the union hall in early November 2016. Mantell went to the hall and learned from the secretary that he needed to work with a union contractor again in order to be eligible for supplemental unem- ployment benefits through the labor agreement. Mantell then went and spoke to Palladino. Mantell complained to Palladino that he had not received a call for work all year and that “I needed work. I wasn’t even eligible to get sub pay. I haven’t had any work.” Mantell told Palladino that he was second on the out-of- work list. Palladino “began to ridicule me about my Brother Frankie.” Mantell told Palladino, “I’m Ron Mantell, Not Frank Mantell. I’m coming here to ask you for a job.” According to Mantell, Palladino said “that no contractors have been calling for me” and that “I was allowed to find my own work.” Palladino said that “[i]t wasn’t his job to find me a job because no contrac- tors were calling.” Mantell testified that Palladino said that “he knew that I was planning on calling the National Labor Relations Board and if I did that he would bring me up on charges.”11 Palladino. Mantell testified that a few days after their conversation, Sa- batoni called Mantell back and told Mantell that he had talked to Palla- dino, and that Palladino “said he hasn’t been able to place me on a job” and that “his advice to me is that I can go and find my own work.” I credit that Mantell was told this by Sabatoni, but the contention that Pal- ladino said it is hearsay. Sabatoni did not testify and he has not been DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 Mantell testified that Matthew Chavi, at that time an employee and member of the Local Union, was present but did not partici- pate in the conversation. Chavi testified and described the con- versation between Mantell and Palladino. Initially his account of the conversation was consistent with but fuller than Mantell’s account. He testified that Mantell “came back and said that he needed to go to work and wanted to know if Dick would send him out to work, that he needed to go to work.” Palladino told him that there were “lots of guys wanting to go to work at the time” and that “if something come up, he’d see what he could do.” Chavi also testified that Palladino told Mantell that “he has the option of going out and finding his own work . . . his old contacts or callbacks or if he could find someone if he needed to go to work. . . . But he said he’d see if he could do something.” Chavi described Mantell as “getting a little hot” as the conversa- tion turned to Mantell’s belief that Palladino was not providing him work because of his family. Chavi testified that Mantell brought up his family—“which is his uncle and his father and his brother, Frank”—and complained that the family members’ “stock had gone down and that he thought Dick wasn’t putting him out to work.” Although the product of leading questioning (“And did you hear Ron threaten Dick about going to the NLRB”), Chavi testified that Mantell raised the issue of the NLRB, stating that Mantell said that “If Dick wasn’t going to send him to work, he was going to the NLRB.” According to Chavi, Palladino told Mantell “go ahead and do what you have to do.” Chavi said nothing in his testimony about Palladino say- ing anything about bringing Mantell up on charges. Palladino testified briefly. He was asked, in leading fashion: “did you threaten Ron Mantell that if he went and filed charges with the board that you would file internal Union charges against him?” Palladino answered “no” to this question. In terms of demeanor, both Mantell and Chavi testified with credible demeanor. Chavi’s account is plausible and in many ways fuller than Mantell’s. This conversation occurred approx- imately a month after the administrative law judge had ruled against the Local in Frank Mantell’s unfair labor practice case— something both Mantell and Palladino would have been attuned to—so it does not surprise me that the NLRB was mentioned in this conversation. Regardless of whether Mantell (his account) or Palladino (Chavi’s account) first raised the NLRB, the critical question is whether Palladino made a reference to bringing charges against Mantell if an NLRB unfair labor practice charge was filed. Mantell’s account of this was credible in demeanor. Chavi did not specifically address it. His account of what Palla- dino said in response to his claim that Mantell raised the possi- bility of going to the NLRB did not include the threat, but Chavi’s answer was short and offered tenuously (“If I remember correctly, Dick looked at him and said go ahead and do what you shown to be an agent of the Respondent Local Union. In any event, the testimony about the conversation with Sabatoni neither corroborates nor undercuts the alleged threat by Palladino. 12 I note that given my analysis, it is not necessary to consider former Local Business Manager Robert Connolly’s testimony that in the spring of 2017—approximately six months after the incident between Palladino and Mantell—Palladino announced at a Local membership meeting that, essentially, there would be retaliation against anyone who filed an NLRB charge against the Local Union. This statement was not alleged by the have to do”). Chavi did not affirmatively deny that the threat of retaliatory charges was made. Palladino did deny it, as noted. But his one-word denial of a fully leading and conclusory ques- tion was not convincing. Indeed, in his testimony, Palladino did not even offer an account of the conversation, but simply an- swered a single leading and conclusory question about whether he threatened Mantell. My view is that more likely than not, Palladino told Mantell that if he (Mantell) filed an NLRB charge, that Palladino would bring him up on internal union charges. I find that, as Mantell testified, Palladino told Mantell that.12 Analysis The threat that I have found that Palladino made to Mantell is obviously unlawful. Teamsters Local 391 (UPS), 357 NLRB 2330, 2330–2331 (2012). It would have a reasonable tendency to “impair[ ] access to the Board’s processes.” Office of Employ- ees Local 251 (Sandia National Laboratories), 331 NLRB 1417, 1418–1419 (2001).13 B. The Internal Union Charges Brought Against Mantell In March 2017, Palladino charged Mantell with violating the Union-Building Industry Employer’s Association labor agree- ment and the Union’s constitution by working in February 2017 for a signatory-contractor (Scrufari) on a job where no union steward had been hired or appointed. The Local Union’s agreements provide that a union steward must be on every job worked by an employee working under the labor agreement, and the Union’s constitution requires that mem- bers comply with such rules. Palladino testified credibly that first year apprentices go through a “Steward Preparedness” class to learn about the importance to the union that there be a steward for each job so that the Union can protect working standards. The Local learned about Mantell’s work for Scrufari when Mantell brought his check stub into the Local’s benefits office seeking credit for the work. The Union had been unaware of this work and believed that a steward should have been on this job. Mantell argued that the caulking work he was involved with was not covered by the agreement. Palladino filed internal union charges against Mantell soon thereafter. After a trial conducted April 8, 2017, Mantell was found guilty as charged by the Un- ion’s executive board. The board assessed a fine of $500 and suspended Mantell from union membership for six months. Lo- cal Union President William Grace testified that the $500 fine amounted to approximately two days’ pay, and that the six- month suspension of membership in good standing only pre- vented Mantell from attending union meetings but did not impair his ability to work. There is no evidence countering this expla- nation of the penalties offered by the local union president. The penalties were held in abeyance pending the resolution of General Counsel to be an unfair labor practice. In reaching my conclu- sion in the text regarding the statement by Palladino to Mantell in No- vember 2016, I have assumed without deciding that the Spring 2017 statement testified to by Connolly did not happen. 13 In addition to alleging that this threat violated Sec. 8(b)(1)(A) of the Act, the complaint alleges that Palladino’s threat was motivated by Man- tell’s brother’s protected activity. I do not reach that allegation. Findings as to the motivation for this threat would not materially affect the remedy or, indeed, the violation found. LABORERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL UNION NO. 91 (SCRUFARI CONSTRUCTION CO) 13 Mantell’s appeal to the International Union, which was pending at the time of the unfair labor practice hearing. Analysis The complaint alleges that the internal union charges and the suspension of membership were motivated by retaliation for Mantell’s brother’s protected and concerted activity, and there- fore violative of Section 8(b)(1)(A) of the Act. The General Counsel’s brief focuses on marshaling evidence to prove the discriminatory motivation for the internal union dis- cipline. However, a threshold problem with the General Coun- sel’s allegations is that the internal union discipline meted out against Mantell does not fall within the ambit of union conduct regulated by Section 8(b)(1)(A). While Section 8(b)(1)(A) of the Act makes it an unfair labor practice for a labor organization or its agents “to restrain or co- erce . . . employees in the exercise of the rights guaranteed in section 7” (29 U.S.C. § 158(b)(1)), the Supreme Court has re- jected a “literal reading” of Section 8(b)(1)(A) that would find that that the mere fact that a union acts in response to the exercise of a Section 7 right constitutes “restraint” or “coercion” within the meaning of Section 8(b)(1)(A). NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 178–179 (1967). The Act does not broadly deputize the Board to adjudicate internal disputes be- tween labor organizations’ officers and members. As the Board as explained: “Simply put, we will not scrutinize a union's internal discipline of its members, even for allegedly discriminatory reasons, so long as the action does not restrict access to the Board's processes or invoke any aspect of the em- ployment relationship.” In re Textile Processors, 332 NLRB 1352, 1354 (2000) (emphasis added). Where, as here, the inter- nal union discipline “was restricted to the status of a member, as a member, rather than as an employee” there is no violation of 8(b)(1)(A). Office Employees Local 251 (Sandia National La- boratories), 331 NLRB 1417, 1420 (2000). In Sandia, the Board overruled cases “in which the Board has found violations of Section 8(b)(1)(A) even in the absence of any meaningful correlation to the employment relationship and the policies of the Act.” Sandia, 331 NLRB at 1419. In Sandia, the Board returned to its longstanding standard in which it “consist- ently distinguished between, on the one hand, internal union en- forcement and, on the other, external enforcement, impacting the employment relationship. Indeed, the Board viewed this distinc- tion as a central tenet of Section 8(b)(1)(A) and its proviso.” Sandia, supra at 1420. As the Board put it, Section 8(b)(1)(A) “was not enacted to regulate the relationship between unions and their members unless there was some nexus with the employer- employee relationship and a violation of the rights and obliga- tions of employees under the Act.” Sandia, supra at 1424. In dismissing an 8(b)(1)(A) complaint over internal union disci- pline, the Board in Sandia stated: What is of critical significance in our judgment is that the only sanctions visited on the Charging Parties by the victorious in- traunion faction were internal union sanctions, such as removal from union office and suspension or expulsion from union 14 See Electrical Workers Local 2321 (Verizon), 350 NLRB 258, 262 (2007) (“While Respondent may discipline employees for circulating or membership. The relationship between the Charging Parties and their Employer, Sandia, was wholly unaffected by the dis- cipline. Nor are any policies specific to the National Labor Re- lations Act implicated by the union discipline at issue. . . . [W]e find that Section 8(b)(1)(A)’s proper scope, in union discipline cases, is to proscribe union conduct against union members that impacts on the employment relationship, impairs access to the Board’s processes, pertains to unacceptable methods of union coercion, such as physical violence in organizational or strike contexts, or otherwise impairs policies imbedded in the Act. 331 NLRB at 1418–1419. Here, the internal union actions taken against Mantell do not affect his employment relationships, impair access to Board pro- cesses, or pertain to unacceptable methods of union coercion, such as physical violation. The General Counsel does not con- tend otherwise. Rather, in an effort to will this square peg into the round hole of Section 8(b)(1)(A), the General Counsel baldly asserts that the union’s internal discipline “impairs policies imbedded in the Act.” But absolutely no case is cited and no argument made for this misreading of the Act’s framework. In Sandia, the Board cited to examples of the types of situa- tions “when intraunion discipline clashes directly with statutory policy interests and prohibitions incorporated in the Act.” 331 NLRB at 1424. These included instances where unions fined employees to compel conduct in violation of a collective-bar- gaining agreement (Mine Workers Local 12419 (National Grind- ing Wheel Co.), 176 NLRB 628 (1969)), or punitively fined a member seeking access to the Board’s processes to file a decer- tification campaign (Molders Local 125 (Blackhawk Tanning Co.), 178 NLRB 208, 209 (1969)), or fined members for refusing to take action in violation of Section 8(b)(4)(B). Plumbers (Han- son Plumbing), 277 NLRB 1231 (1985). In this case, there is nothing remotely similar at issue. In di- rect contravention of Sandia, the General Counsel appears to presume that union discipline motivated by Section 7 activity ipso facto “impairs policies embedded in the Act” in violation of Section 8(b)(1)(A). However, this argument was explicitly re- jected by the Board majority in Sandia, which dismissed the dis- sent’s view that union discipline “contravenes a policy of the Act” just because the discipline punished “the Section 7 right to concertedly oppose the policies of union officials.” 331 NLRB at 1424. The Board majority in Sandia explained that while “we reaffirm the principle that Section 7 encompasses the right of employees to concertedly oppose the policies of their union, we reject our dissenting colleague’s insistence that Section 8(b)(1)(A) will proscribe virtually each and every form of in- traunion discipline pertaining to virtually any form of intraunion dispute without regard to the employment context or the policies of this Act.” 331 NLRB at 1425. Simply put, the Board will not find an 8(b)(1)(A) violation in every case where internal union discipline was a response to Section 7 activity. There must be an actual and not a “speculative” and “attenuated” effect on the member as an employee. Sandia, 331 NLRB at 1425.14 supporting a decertification petition, it may not threaten to take any ac- tion to affect their employment”), quoting Service Employees Local 399 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14 Here, I recognize that Frank Mantell’s criticisms of the Local Union’s leadership necessarily—to have even been protected by Section 7,15—must “bear[ ] some relation to the employees’ in- terests as employees.” Sandia, 331 NLRB at 1424. However, the essence of Frank Mantell’s criticisms was an argument over the conduct and principles and judgment of the union leadership. It was a criticism of Palladino’s alleged failure to apply union policies and an effort to “press the union to change its policies.” 365 NLRB No. 28, slip op. at 2. It was not an effort to change the union’s collective-bargaining posture, or its relationship with employers, or to convince the union to alter the terms and condi- tions of employment with employers. The only sense in which Frank Mantell’s criticisms related to employment was that he criticized Palladino’s granting of a journeyman’s book to a local candidate, thereby increasing by one the number of individuals eligible to vie for journeyman jobs in the area. This may, as the Board found, help establish that Frank Mantell was engaged in Section 7 activity. But finding an 8(b)(1)(A) violation based on wholly internal union discipline motivated by such comments would be precisely the type of “quantum leap” based only on a “potential” and “attenuated” “speculative impact” on the em- ployer-employee relationship that the Board has rejected. San- dia, 331 NLRB at 1425. In this case, the Local’s discipline of Mantell, even if “for allegedly discriminatory reasons,” (In re Textile Processors, 332 NLRB at 1354), had no effect on the un- ion’s collective-bargaining posture or the employees’ employ- ment terms and conditions. Finding a violation in these circum- stances would be at odds with the Supreme Court’s “essential accept[ance]” of “the Board’s longstanding position . . . that Sec- tion 8(b)(1)(A) is to be narrowly construed so as not to reach internal union discipline unless such discipline affects a mem- ber's employment status.” Sandia, supra at 1421. I dismiss this allegation. C. The out-of-work list allegations Mantell testified that since November 2015, he regularly—on average twice a week—would go to or call into the local union hall to check the out-of-work list maintained by the Local Union. This list was updated as frequently as daily, although if no one had been sent to work the list would not be updated or changed. (City of Hope), 333 NLRB 1399, 1401–1402 (2001) (“While Respondent may discipline employees for circulating or supporting a decertification petition, it may not threaten to take any action to affect their employ- ment”); Sandia, 331 NLRB at 1424 (“union restraint and coercion of Section 7 rights is regulated under Section 8(b)(1)(A), and . . . the central them of both the Supreme Court’s 8(b)(1)(A) decisions and of Board’s 8(b)(1)(A) cases prior to [Carpenters Local 22 (Graziano Construction Co.), 195 NLRB 1 (1972) (overruled by Sandia)] is that section was not enacted to regulate the relationship between unions and their members unless there was some nexus with the employer-employee relationship and a violation of the rights and obligations of employees under the Act”); Teamsters Local No. 170 (Leaseway Motor Car Transport Co.), 333 NLRB 1290 (2001) (internal union discipline including $26,000 fine and removal from office in reprisal for members’ protected dissident ac- tivity in support of union presidential candidate does not interfere with his employment or contravene other policy interests arising under Act and therefore does not violate Section 8(b)(1)(A)); In re Textile Proces- sors, 332 NLRB 1352 (2000) (applying Sandia and dismissing 8(b)(1)(A) case, even assuming union discriminatorily enforced rule in Neri testified that how often the list was updated “depends on how many people sign in, how many people we send out to work. It could be updated once a week, twice a week, three times a week.” When Mantell went in personally, he would ask to see the list which was kept inside the sliding glass window behind the inter- nal office counter. The administrative office was behind the win- dow counter. Neri or one of the other employees would then show him the list. He regularly viewed the out-of-work list dur- ing this period and there were no problems encountered with him being allowed to view it.16 Neri confirmed that for the past 3 or 4 years, the out-of-work list has been kept inside the office on the ledge inside the glass office window. He testified that before that it had been kept on the bulletin board in the open area of the hall, but people would take it and the Local employees would not even realize it was missing. So, the decision was made to keep the list inside the glass window. The Local employees would show the list to an- yone who came in and asked to see it. However, Neri testified that “most guys didn’t even want to see it. They just ask us where am I on the list.”17 On June 26, 2017, Mantell went to the Local Union and asked to view the out-of-work list. Neri said that the list was being updated but he showed Mantell the most recent list and pointed out two individuals who had been sent out as stewards. Each was lower on the list than Mantell. Mantell decided to go down to the job site where they had been sent to see the type of work they were performing and whether they were serving as stew- ards. He did this, without incident, and spoke to two laborers there with whom he had worked in the past. Based on what Man- tell was told by them he believed that the two referrals were not serving as stewards. The next day, June 27, Mantell returned to the Local Union hall to review the out-of-work list again and to obtain copies of certain contracts. According to Mantell, Neri told him that “I wasn’t allowed, that Richard Palladino told him that I’m not al- lowed to view the out-of-work list . . . “[b]ecause of what hap- pened yesterday.” Mantell assumed that by “what happened yes- terday,” Neri was referring to Mantell’s “policing activity by me going to the job and asking questions and stuff of that nature.” order to retaliate against employee for engaging in internal union activi- ties, as internal union discipline “even for allegedly discriminatory rea- sons” does not violate Act “so long as the action does not restrict access to the Board’s processes or invoke any aspect of the employment rela- tionship”). 15 In Laborers Local 91, 365 NLRB No. 28, the Board reiterated that it is “’elementary’” that Section 7 protects “’an employee’s right to en- gage in intraunion activities in opposition to the incumbent leadership of his union.’” Id. at slip op. 1, quoting Steelworkers Local 397 (U.S. Steel Corp.), 240 NLRB 848, 849 (1979). 16 In his testimony Mantell made reference to a time in November 2015, when he contacted an International union representative, Chris Sa- batoni, regarding a problem he was having viewing the list at the Local Union. Since that time, Mantell regularly reviewed the list without inci- dent. 17 Neri worked at the Local every morning and left at about 12:30 p.m. His office area was shared with a full-time secretary, identified as Diana. In addition, a secretary identified as Nancy Simms works 1 day a week. LABORERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL UNION NO. 91 (SCRUFARI CONSTRUCTION CO) 15 Mantell protested that in 2015 he had once had to call an Inter- national union representative in order to obtain access to the list, but Neri told Mantell that he was “just doing what he’s told” and that “Richard told [him] I’m not allowed to see the list.” Mantell was also denied access to the contracts. Neri told him that to see the contracts he would have to contact the Department of La- bor.18 Mantell went home and called the International Representa- tive he had spoken to in 2015. Sometime after that, when Man- tell returned to the Local Union, later in June or in early July, the Local had begun posting the out-of-work list behind the glass office window, taping it up so it was visible to anyone standing in front of the sliding glass window. This had the advantage for Mantell (and others) that they no longer had to ask to see the list—it was posted in plain view. However, with this change the posted list was only updated weekly. Neri testified that he followed the same procedure as always in updating the list, as frequently as daily if necessary, but that since approximately June it is only posted weekly. The result is that members could not see the list as it evolved during the week but were only able to see the revised list weekly. Neri testified that this change was one permitted by the referral rules: “In the referral rules, it says it has to be posted once a week for the members to look at it.”19 Neri explained that the change in procedure was made because “recently, there’s been all this bar- rage of taking pictures of it, being a little abnormal from the nor- mal practice.” Neri described an uptick in requests to see the list which burdened the secretary and became “an aggravation.” Posting the list ended the problem. Mantell testified that the list being updated weekly made it less easy for him to “police” it, “as far as seeing who disappears off the list . . . now if they’re updating the list once a week, I can’t view the list and see who comes off the list during the week.” Analysis The General Counsel alleges that the Respondent violated Section 8(b)(1)(A) by refusing to allow Mantell to view the out- of-work list on or about June 27, 2017, and then again by chang- ing its practice of updating the out-of-work list daily and moving to a practice of posting the out-of-work list weekly. The General Counsel alleges that both of these actions were in response to Mantell’s investigation of the referral of two individuals below him on the out-of-work list. This is a nonexclusive hiring hall, hence, as noted above, the duty of fair representation does not apply, as that duty is derived from and coextensive with the union's authority under the Act to 18 Neri disputed Mantell’s characterization of this conversation but admitted he only “kind of remember[ed]” the conversation. Neri said that it was a “passing conversation” and that when Mantell asked for the list Neri told him “it was the same list that you saw yesterday. And he says something to the effect, he has a right to see the list. And I said, you just saw the list. I don’t know, I don’t remember the whole conversa- tion.” Neri testified that he could not remember if he gave Mantell the list or not. I credit Mantell’s surer, less vague, and more credibly offered account. 19 Art. 7.B. of the Local Union job referral rules states: Lists containing the information described in § 6(A) and (B) [i.e., act as the exclusive representative for the members of its collec- tive-bargaining unit. See Schneider Moving & Storage Co. v. Robbins, 466 U.S. 364, 376 fn. 22 (1984). However, as with an alleged refusal to refer, it violates Section 8(b)(1)(A), even at a nonexclusive hiring hall, to refuse members access to an out-of- work list as retaliation for protected activity. Just as a discrimi- natory refusal to refer would violate 8(b)(1)(A), a discriminatory refusal to thwart member efforts to investigate whether their re- ferral—i.e., their right to employment—is being protected, would run afoul of Section 8(b)(1)(A). Mantell, by his own testimony, frequently, and without inci- dent, reviewed the out-of-work lists during 2016 and 2017. However, as found, above, on June 27, Mantell’s request to view the out-of-work list was denied. This was done (according to Mantell’s credited testimony of what Neri told him Palladino had said), on the order of Palladino.20 In confronting Mantell, Neri attributed it to “what happened yesterday.” Mantell “assumed” that this was a reference to his policing activities when, after viewing the list on June 26, he went down to a worksite to investigate whether the two employ- ees referred out were acting as stewards. However, as the Re- spondent points out, there is zero evidence that any local union official knew of Mantell’s actions. Mantell described walking around the construction site without incident, agreed that he was “incognito” in a hard hat and safety glasses, and he talked only to two co-employees he had worked with in the past. But if there is no direct evidence of a local union official see- ing Mantell at the workplace, or learning of Mantell being there, to what was Neri referring when he told Mantell on June 27 that he could not view the out-of-work list because of “what hap- pened yesterday?” The Respondent’s witnesses supplied no an- swer at all. Neri, who could not remember “the whole conversa- tion,” and could not remember if he showed the list to Mantell, did recall that he told Mantell that “it was the same list that you saw yesterday.” Palladino did not address the matter in his short testimony. He did not deny having told Neri not to show the out- of-work list to Mantell. Particularly in the absence of any other explanation, the comment and its timing are very suspect. As referenced above, the Board has long recognized that in discrimination cases unexplained timing can be indicative of an- imus. Electronic Data Systems, 305 NLRB at 220; North Caro- lina Prisoner Legal Services, 351 NLRB at 468. Moreover, an inference of a respondent’s knowledge of protected activity may be drawn in appropriate circumstances based on the timing of the respondent’s actions. Montgomery Ward & Co., 316 NLRB 1248, 1253–1254 (1995), enfd. 97 F.3d 1448 (4th Cir. 1996); La Gloria Oil & Gas Co. 337 NLRB 1120, 1123 (2002) (“the timing current out-of-work list] shall be conspicuously posted, or otherwise immediately available for inspection, at the offices of Local 91 on a weekly basis, so that the previous week is posted or immediately avail- able by the close of business on the following Monday. The infor- mation shall remain posted or immediately available for at least two weeks. 20 There is no hearsay problem attached to this unrebutted testimony. Both Neri and Palladino’s statements are non-hearsay admissions pursu- ant to Federal Rule of Evidence 801(d)(2). U.S. Ecology Corp., 331 NLRB 223, 225 (2000), enfd. 26 Fed.Appx. 435 (6th Cir. 2001). In any event, any objection to this evidence would be waived at this point. Id. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16 of the discharge in relation to [the supervisor] learning of the ac- tivity supports a finding that [the supervisor] knew of the activity and knew who had been involved”); see also Metro Networks, Inc., 336 NLRB 63 (2001) (Board can infer knowledge from the timing of the discharge); Medtech Security, Inc., 329 NLRB 926, 929–930 (1999). Here, by all evidence, Mantell had been routinely and fre- quently phoning and coming into the Local Union to view the out-of-work list for at least a year and a half. As far as the record shows, this occurred without incident. While this might be said to temper the gravity of the violation—at the same time, it adds to the probative weight of the timing of the Union’s sudden re- fusal to allow Mantell to view the out-of-work list on June 27, based on something “that happened yesterday.” Only after—the day after—Mantell took affirmative steps to investigate the job referrals by heading down to a job site to scrutinize the employ- ment situation, the Local Union denied him access to the out-of- work list based on something that “happened yesterday.” As Mantell assumed, his trek down to the workplace to police the referrals is the more than likely explanation. The Respondent would argue that it was a coincidence, but I find that unlikely and unbelievable. In terms of Wright-Line, I believe that a violation has been proven. Mantell’s investigation into compliance with referral rules (and contract terms) is classic protected activity. As I have found, the timing of the sudden denial of Mantell’s request to review the out-of-work list raises an inference that the Respond- ent knew of Mantell’s policing of the referral system and sug- gests animus as the motive for the denial of his request. Neither the evidence generally, nor the Respondent specifically, offers any alternative explanation for the denial, much less one estab- lishing that the Respondent would have denied Mantell access to the out-of-work list on June 27, in the absence of his protected activity. I find the violation as alleged. The General Counsel also alleges that the Local Union’s change in posting frequency of the out-of-work list, beginning sometime in late June or early July, was motivated by Mantell’s policing activity on June 26, and on that basis also violated Sec- tion 8(b)(1)(A) of the Act. In short, the General Counsel alleges that the Respondent’s move to post the out-of-work list on a weekly basis—instead of members having to ask at the desk to see it but being able to see updates daily—violated the Act. I do not agree. First, while the timing of the change to weekly posting came after Mantell’s June 26 policing activity, unlike the June 27 in- cident denying Mantell the out-of-work list, the change in post- ing policy is otherwise credibly explained by the Respondent. Neri explained that the change was made because of an uptick in members viewing and photographing the list. Having them have to involve a union secretary or Neri every time someone wanted to see the list was disruptive and “an aggravation.” So the Union began posting the updated list weekly and members could view, take notes, or photograph the list without requiring a union sec- retary to stop what he or she was doing and provide them the list. This is plausible, and, in my view, a credible explanation. And, 21 Carpenters Local Union 370 (Eastern Contractors Assn.), 332 NLRB 174, 174–175 (2000). of course, it benefitted members because with the list posted they did not have to have assistance (i.e., consent) of the Local Union to view the list—so the change was not entirely adverse. The “adverse” part of the change was that members could now see the changes in the list only weekly. The nexus between Man- tell’s June 26 policing of the out-of-work list and this reasonable policy change is quite thin. Notably, this change did not apply just to Mantell. Indeed, even assuming, arguendo, that the Gen- eral Counsel has met his initial Wright Line burden to show that the Respondent was motivated to make this change in overall policy based on Mantell’s protected activities, I find that with Neri’s explanation the Respondent has demonstrated that it would have made the change even absent Mantell’s going down to the construction site to police the referral list on June 26. I note that it is to be remembered that the General Counsel is not alleging that the Union’s change in posting policy was a breach of the duty of fair representation. He is also not alleging that the change in policy was discriminatorily motivated by Man- tell or other employees’ repeated requests to view the out-of- work list. Nor could the General Counsel successfully maintain such claims. Particularly in a nonexclusive hiring hall, where the duty-of-fair representation does not apply,21 but even in an ex- clusive hiring hall, there is no general “right” of members to view the out-of-work list at any time, without regard to the Union’s legitimate concerns and rationales. The Local Union’s effort to avoid the disruption to staff of many requests to see the out-of- work list by posting a weekly list is a good-faith, non-arbitrary, non-discriminatory basis for its actions. See Operating Engi- neers Local 181 (Maxim Crane Works), 365 NLRB No. 6, slip op. at 5 & fn. 5 (2017) (in exclusive hiring hall, duty of fair rep- resentation is violated only when access to out-of-work list de- nied on arbitrary, discriminatory, bad-faith basis). In any event, the General Counsel does not allege a breach of the duty of fair representation or that the Union’s change in policy was moti- vated by Mantell or employees’ over-requesting of the out-of- work list. I will recommend dismissal of this allegation. CONCLUSIONS OF LAW 1. The Respondent Laborers’ International Union of North America, Local Union No. 91 is a labor union within the mean- ing of Section 2(5) of the Act. 2. The Respondent violated Section 8(b)(1)(A) of the Act, in or about early November 2016, by threatening Charging Party Ronald Mantell with internal union charges if he contacted the National Labor Relations Board. 3. The Respondent violated Section 8(b)(1)(A) of the Act, on or about June 27, 2017, by refusing to show Charging Party Ronald Mantell the Local’s out-of-work list in retaliation for his protected and concerted activity. 4. The unfair labor practices committed by Respondent affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist therefrom and to take certain affirmative action designed LABORERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL UNION NO. 91 (SCRUFARI CONSTRUCTION CO) 17 to effectuate the policies of the Act. The Respondent, having unlawfully refused to show Ronald Mantell the out-of-work list on June 27, 2017, must grant Ronald Mantell’s request to examine the out-of-work referral list. If a version of the out-of-work list as it existed on June 27, 2017, when Mantell was denied his request to see the list, is saved or retrievable, the Respondent must permit him to examine the list as it existed on June 27, 2017. The Respondent shall post an appropriate informational no- tice, as described in the attached Appendix. This notice shall be posted in the Respondent's offices or wherever the notices to members are regularly posted for 60 days without anything cov- ering it up or defacing its contents. In addition to physical post- ing of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communi- cates with its members by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. When the no- tice is issued to the Respondent, it shall sign it or otherwise notify Region 3 of the Board what action it will take with respect to this decision. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended22 ORDER The Respondent, Laborers’ International Union of North America, Local Union No. 91, Niagara Falls, New York, its of- ficers, agents, and representatives, shall 1. Cease and desist from (a) Threatening Ronald Mantell or any employee with repris- als if he or she contacts the National Labor Relations Board. (b) Refusing requests of Ronald Mantell or any members to examine the out-of-work referral list in retaliation for protected and concerted activity. (c) In any like or related manner restraining or coercing em- ployees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectu- ate the policies of the Act: (a) Grant Ronald Mantell’s request to examine the out-of- work referral list. If a version of the out-of-work list as it existed on June 27, 2017, when Mantell was denied in his request to see the list, is saved or retrievable, permit him to examine the list as it existed on June 27, 2017. (b) Within 14 days after service by the Region, post at its Ni- agara Falls, New York facility copies of the attached notice marked “Appendix.”23 Copies of the notice, on forms provided by the Regional Director for Region 3, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspic- uous places, including all places where notices to members are customarily posted. In addition to physical posting of paper 22 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Or- der 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 purposes. notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other elec- tronic means, if the Respondent customarily communicates with its members by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Within 21 days after service by the Region, file with the Regional Director for Region 3 a sworn certification of a respon- sible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. Dated, Washington, D.C. December 11, 2017 APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain on your behalf with your employer Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT threaten you with reprisals for contacting the National Labor Relations Board. WE WILL NOT refuse to show you the out-of-work list in retal- iation for your protected and concerted activities. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights listed above. WE WILL grant Ronald Mantell’s request to examine the out- of-work referral list and WE WILL, if a version of the out-of-work list as it existed on June 27, 2017, when Mantell was denied in his request to see the list, is saved or retrievable, permit him to examine the list as it existed on June 27, 2017. LABORERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL UNION NO.91 Administrative Law Judge’s decision can be found at www.nlrb.gov/case/03–CB–196682 by using the QR code be- low. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940. 23 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 National 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.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 18