Laborers' Local Union No. 525

National Labor Relations Board - Board DecisionsApr 16, 1976

223 N.L.R.B. 939 (N.L.R.B. 1976)

LABORERS ' LOCAL UNION NO. 525 939 Construction and General Laborers' Local Union No. 525 of the Laborers' International Union of North America (Pascal P. Paddock, Inc.) and Thomas Franklin McIntyre . Case 38-CB-734 April 16, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On December 22, 1975, Administrative Law Judge Phil Saunders issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order as modified herein. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause, or attempt to cause, Pas- cal P. Paddock, Inc., or any other employer en- gaged in commerce, to deny employment to Thomas F. McIntyre, or to any other employee, because he had not, for union consideration, been referred or cleared by us for such employ- ment. WE WILL NOT threaten Thomas F. McIntyre or any other employee with reprisals because they engaged in internal union affairs. WE WILL NOT in any other manner restrain or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act, except in a manner permitted by Section 8(a)(3) of the Act. WE WILL make whole Thomas F. McIntyre for any loss of earnings he may have suffered as a result of the discrimination against him. CONSTRUCTION AND GENERAL LABORERS' LOCAL UNION No. 525 OF THE LABORERS' INTERNATIONAL UNION OF NORTH AMERICA DECISION STATEMENT OF THE CASE ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that Construction and Gen- eral Laborers' Local Union No. 525 of the Laborers' International Union of North America, Burlington, Iowa, its officers, agents, and representatives, shall take the action set forth in said recommended Order, as modified herein: 1. Substitute the following for paragraph 1(c): "(c) In any other manner restraining or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, except in a manner permitted by Section 8(a)(3) of the Act." 2. Substitute the attached notice for the Adminis- trative Law Judge's notice. PHIL SAUNDERS, Administrative Law Judge: Based on a charge filed by Thomas F. McIntyre, a complaint was is- sued against the Respondent Union, herein called the Union, Respondent, or Local 525, alleging violation of Sec- tion 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended. Respondent filed an answer to the com- plaint denying it had engaged in the alleged unfair labor practices. A hearing in this proceeding was held before me, and both the General Counsel and Union filed briefs.' Upon the entire record in this case, and from my obser- vation of the witnesses and their demeanor,2 I make the following: ' The initial charge was filed on May 8, 1975; the complaint is dated June 13, 1975; and the hearing before me was held in Burlington , Iowa, on July 29 and 30, 1975. 2 The facts found herein are based on the record as a whole and upon my observation of the witnesses . The credibility resolutions herein have been derived from a review of the entire testimonial record and exhibits, with due regard for the logic of probability, the demeanor of the witnesses, and the teachings of N.L.R.B. v. Walton Manufacturing Company & Loganville Pants Company, 369 U.S. 404; 408 (1962). As to those witnesses testifying in con- tradiction to the findings herein, their testimony has been discredited, either as having been in conflict with the testimony of credible witnesses or be- cause it was in and of itself incredible and unworthy of belief. All testimony has been reviewed and weighed in the light of the entire record. 223 NLRB No. 135 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUINESS OF THE COMPANY Pascal P. Paddock, Inc., is an Oklahoma corporation with office and place of business located in Burlington, Iowa. It is engaged in the business of construction of swim- ming pool developments, and during the past year, in the course and conduct of its business operations, has per- formed services valued in excess of $50 ,000 in States other than the State of Oklahoma, and has also purchased goods, the value of which exceeded $50,000 from States other than the State of Oklahoma. Paddock is, and has been at all times material herein, an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The Respondent is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE UNFAIR LABOR PRACTICES It is alleged in the complaint that since on or about No- vember 8, 1974, Respondent , by its agent Frank E. Rans- ford , has refused, and continues to refuse , to refer Thomas F. McIntyre from its exclusive hiring hall facilities to em- ployers including Paddock for discriminatory reasons not related to his failure to pay dues or fees to the Union, but because he has engaged in protected internal union activi- ties . It is further alleged that the Respondent also threat- ened an employee with reprisals because said employee, a member of Respondent 's Local , engaged in legitimate in- ternal union affairs. The Union is party to a collective-bargaining contract with the Burlington Builders' Association , and has entered into the same contract with individual employers in the general area of Burlington , Iowa. As pertinent hereto, the contract provides hiring hall procedures as follows: Article 1, Section 2(j)1. The contractor recognizes the Union as the major source of recruiting employees and shall first contact the Union Representative when he wishes to employ men. The Union agrees that its selection of applicants for referral shall be on a non- discriminatory basis, not based on or affected by union membership , by-laws, rules, regulations , consti- tution , or any other aspect of union membership, poli- cies, or requirements. Article 1, Section 2(j) 2. In selecting applicants, the Union shall refer applicants according to the follow- ing priority. 1) Those requested by name who have previously worked in the area described in this contract in the past year. 2) Those having special skills may be requested by their specific categories. 3) Those having four (4) years experience in con- truction and who have resided two (2) years in the same area. 4) Those having two (2) years experience and one (1) year residency in the same area; and 5) All others. The Union shall maintain lists of men in each group and refer from the top of the list as the Contractor may require. If the Contractor requests a man possess- ing particular skills, the Union shall refer the man highest on the list possessing such skills. If an applicant refuses referrals, his name goes to the bottom of the appropriate list; if he accepts referral and is rejected by the Contractor, his name goes back to the place previously held, and the Contractor shall pay the applicant (2) hours pay provided the Contrac- tor has not notified the Union that he does not want that particular applicant. For background purposes it appears from this record that in April 1974, Thomas F. McIntyre, herein called Mc- Intyre, became a member of Local 525, and has remained a member of the Union ever since. He has no special skills and works as a laborer. In early June 1974, McIntyre was at the union office in Burlington waiting for a job to come in, and while talking to the secretary working in the office, Ruth Nichols, he complained about receiving only short- term jobs of only 2 or 3 days. During their conversation something came up relative to the recent election of Frank Ransford as the Union's business agent, and Ruth Nichols then told McIntyre that she did not think Ransford had followed the proper procedures and she felt his election was illegal. McIntyre then asked Nichols if there was any- thing that could be done about it, and Nichols gave Mc- Intyre a copy of the constitution of the Union and showed him the name of the Union's midwest regional representa- tive, Warren Miller, and also gave him an address of the International office in Washington, D.C.3 McIntyre took information supplied to him by Ruth Ni- chols, and on the same day placed a long distance call to the Respondent's midwest regional representative, Warren Miller. McIntyre gave Miller his name and the number of his Local (No. 525), and then told Miller he had informa- tion that the recent election for the business agent of Local 525 was held illegally, and asked him if there was anything he could do about it and suggested that Miller come to Burlington and help the membership out. Miller informed McIntyre that he had his own office to run and had no time to make a trip to Burlington. After talking with Miller, McIntyre then also drafted a letter and sent it to the Union's International office in Washington, D.C. On either the same day or the next day, Ruth Nichols, at the Union's office in Burlington, received a call from War- ren Miller and he wanted to talk to Frank Ransford. Ni- chols informed Miller that Ransford was not in the office 3It appears that the Union 's former business agent, Rolland Whitten. passed away in April 1974, and that after certain temporary steps were taken Ransford was elected business agent of Local 525 on May 8, 1974. Ruth Nichols maintained that the Union was supposed to send out special notices for nominations of a new business agent, and this procedure was not followed . Nichols suddenly left her employment as secretary in the Union's office on June 28 , 1974, without notice , and in her testimony admitted that she could not work for Ransford. LABORERS ' LOCAL UNION NO. 525 but would return prior to lunchtime. Before the noon hour a second call from Miller came in and Nichols then told Ransford that Miller was on the line. Nichols testified that on this occasion she heard Ransford's side of the telephone call. That after Ransford had identified himself, he said, "Hi, Warren, how are you?" Ransford then asked, "Who made a complaint?" Another pause, and then the name "Tom McIntyre" in a questioning tone , followed by the statement, "I'll starve that son-of-a-bitch." Nichols testi- fied that there was a further pause, and Ransford then said, "Well, I really wouldn't do that." Later on the same day McIntyre again talked with Ruth Nichols at the union of- fice, and Nichols then told him that Ransford was "really steaming" over what he had done, and she had overheard Ransford tell Miller that he was going to starve him (Mc- Intyre) out. Nichols also told McIntyre that it might be best if he did not show up for a few days until Ransford "cools off." A few days later (still in early June 1974), McIntyre re- turned to the union hall along with his brother David and talked with Ransford. Tom McIntyre testified that he then confronted Business Agent Ransford about his prior state- ment to the effect that he was going to "starve him out," and also asked Ransford if he was going to continue giving him part-time jobs. He testified that Ransford's response was a nodding of his head in the affirmative. Several days later McIntyre again returned to the union hall in his efforts to get work, and was told by Ruth Ni- chols about the possibility of a job coming up at the Tymar Construction Company. Nichols said that on or about June 3, the superintendent for Tymar Construction Company called into the Union requesting laborers for the following Monday, which would be on or about June 11, 1974, and that later the superintendent called back and requested Tom McIntyre by name. Nichols notified McIntyre that he had been requested, and that he was to report to the Tymar Construction Company site. Nichols then talked with Ransford and told him she had referred McIntyre to the Tymar job, and that the superintendent had called and requested McIntyre by name. Ransford responded to Ni- chols by saying if he had been in the office, the "son-of-a- bitch" wouldn't have gone. This record shows that several days after McIntyre re- ported to work for Tymar, Ransford went out to the con- struction site and called all the union laborers together to have a talk with them. First of all he asked to see Mc- Intyre's union card, and after producing it Ransford then asked McIntyre why he had turned him in to Midwest Re- gional Representative Miller. McIntyre responded that he deserved it because he was doing things wrong at the of- fice. Ransford then told the laborers that from now on he would be the only one to make referrals to jobs, that they were prohibited from going out and soliciting their own jobs, and he was not going to allow contractors to call in and request individuals by name any longer. It appears that McIntyre continued to work at the Tymar job until the cement work was completed, or until about mid-August 1974. Following the job as a laborer with Tymar Construction Company, McIntyre went to work for the First Mississippi Company. This job was in late August 1974, and he 941 worked there for about 4 days. McIntyre was then referred by the Union and went to work for the Best Company in Keobuck, Iowa, early in September 1974, but worked on this job for only one-half day. On about September 9, 1974, he went to work for the Fruin-Colon Company and worked for them until November 1974, when he was laid off. In late November 1974, he returned to the union hall to seek further employment and was placed number 17 on the re- ferral list. On May 8, 1975, McIntyre filed his initial charge against the Union for failing to refer him to jobs even though he occupied number 2 position on the referral list. On May 9, 1975, after receiving the charge from the National Labor Relations Board, there was a general membership meeting of the Union followed by a meeting of their executive board. Ransford testified that he explained the charges to the Union's Executive board members and told them that he had a job available for Monday, May 12, and in order to demonstrate his fairness to all laborers, he placed a call to McIntyre's home while the executive board was in ses- sion . McIntyre admitted that in May 1975, his wife had received a call from Ransford one evening and the next morning he returned the call, but Ransford then informed him the job he had in mind was only for 2 or 3 days and he had already referred it to someone else. On June 11, 1975, Ransford again called McIntyre, but on this occasion Ransford told him that he was going to court over the charges filed by McIntyre, that the Union was also going to try and make McIntyre pay back all of the unemployment that he had received, and further told McIntyre that he had six or seven witnesses who would testify that he (Ransford) had called McIntyre, and they were there when he called about jobs. McIntyre replied, "There's no way, you'd never call me up for a job." d This record shows that after working the Fruin-Colon job until November 1974, McIntyre did not receive any other work through the Union's referral system until late June 1975, when he was referred by Ransford to a job working for Highway Contractors, Inc., in the shopping mall in downtown Burlington. McIntyre accepted the job and began work on June 25. He worked June 25, 29, and 30, and then was laid off. While working on this job Mc- Intyre assisted another laborer named Carl Weaver with laying pipe for a new sanitary service . McIntyre testified that when they laid him off he was told that Highway Con- tractors needed an experienced pipefitter for the job, and that is what they requested from the Union. McIntyre had never worked as a pipefitter prior to this job, and Ransford did not mention anything to him about Highway Contrac- tors requesting an experienced pipefitter when Ransford Ransford admitted calling McIntyre on the morning of June 11, 1975, regarding the payback of unemployment benefits and the fact that they would go to court , but said that later on he received a call from an employer who needed a man to go to work, so that afternoon he had his secretary, Linda Dutton, call McIntyre to offer him this job. Ransford and Dutton testified that on this occasion when Dutton called McIntyre and stated that she was from the union hall, McIntyre immediately hung up the phone, and that they further tried to get him a second time, but no one answered the telephone. McIntyre admitted receiving the first call regarding unemploy- ment benefits, as aforestated, but denied he received a call from the Union regarding a job. 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD referred McIntyre to the job. After being laid off on his job McIntyre went back to the union hall and was placed num- ber 20 on the referral list. On July 24, 1975, McIntyre returned to the union hall to check the referral list and discovered that he was number 21 on the referral list. He then spoke to Linda Dutton, the secretary for the Union about this matter, and told her that he had only worked for Highway Contractors at the shop- ping mall for 3 days and, therefore, he should have been placed back in the position on the referral list that he occu- pied prior to being referred to the mall job. A little later that same morning McIntyre received a call from Linda Dutton informing him that the instructions from Ransford were that McIntyre should go to the bottom of the list since the job he was referred to lasted more than 3 days, and, therefore, McIntyre could not go to the top of the list and would stay as number 20 or 21 on the referral list. Further events and circumstances in this record show that during the week of July 28, 1975, Chris Johnson, struc- tural superintendent for Pascal P. Paddock , Inc., called the Union and requested two laborers . The Union then made referrals to the Paddock construction site of two laborers, but McIntyre was not one of them . Moreover, a few weeks previous to the above date, Johnson had also called the Union for laborers on two or three occasions , but at no time had McIntyre been referred and Superintendent Johnson had no knowledge of him. The Union argues that the best evidence to refute the alleged animus of Ransford toward McIntyre is the consis- tent referrals of McIntyre to jobs from the time of the Ty- mar job in June 1974, until he completed his work with Fruin-Colon Company in November 1974. The Union also points out that during the winter shutdowns in January, February, and March 1975, many of the Union's members were not working-approximately 70 to 80 out of about 200 members . It is further contended that McIntyre's right must also be assessed under the specific contract language and that under the five categories in the contract , as previ- ously set forth herein, McIntyre obviously was not entitled to a referral until the first four categories were either ex- hausted or not involved, and that the General Counsel failed to show that any member in McIntyre's number five category, and under him in the list, was referred out ahead of McIntyre. Finally, the Union argues, there is substantial corroborated evidence that McIntyre was called for jobs he did not accept, and which refusals, under the provisions of the contract, would put him at the bottom of the list in category five. Final Conclusions The Board, in International Union of Operating Engi- neers, Local 18 (William F. Murphy), 204 NLRB 681 (1974), stated in part as follows: When a union prevents an employee from being hired or causes an employee 's discharge , it has demon- strated its influence over the employee and its power to affect his livelihood in so dramatic a way that we will infer-or, if you please, adopt a presumption that-the effect of its action is to encourage union membership on the part of all employees who had per- ceived that exercise of power. [Citing Radio Officers' Union v . N.L.R.B., 347 U.S. 17 (1954).] But the infer- ence may be overcome , or the presumption rebutted, not only when the interference with employment was pursuant to a union -security clause , but also in in- stances where the facts show that the union action was necessary to the effective performance of its function of representing its constituency. In Murphy, supra, Respondent asserted that it had been denied an opportunity "to establish that its purpose in de- nying Murphy his normal seniority on the referral list was not unlawful , by proving that he had engaged in offensive conduct at the hiring hall and also had engaged in conduct disruptive of an internal union election ...." The Board concluded that such proof would not overcome the infer- ence or rebut the presumption "that respondent's interfer- ence with the employee 's employment operated unlawfully to discourage membership ." The Board reasoned: While it might well be convenient for the Union, in enforcing its own internal rules of conduct , to have available an employment-related sanction , it can hard- ly be said that such severe sanctions are necessary to that end. Internal union discipline -fines, suspension, expulsion from membership , and the like-ought sure- ly to be adequate for this purpose . Thus , while the evidence proffered here might indeed show that the Union had no intent to encourage union membership by interfering with Murphy's employment , yet the dis- play of union power exhibited by an exercise of con- trol over employment opportunity solely for reasons relating to the conduct of an employee as a union member would necessarily have that effect. Accordingly , the Board concluded that Respondent had violated Section 8 (bXl)(A) and 8(b)(2) of the Act. As pointed out, it is clear from this record that the Union , through Ransford, misused and abused the power afforded it by the hiring hall arrangement to detrimentally affect the livelihood of McIntyre, and I agree that the en- tire sequence of events began when McIntyre called the Respondent 's International Representative Warren Miller to protest the misuse of the Union 's internal procedure in electing Business Agent Ransford . As suggested by the General Counsel , there is no question as to the time and contents of the telephone call placed to Miller by McIn- tyre. In his testimony Miller confirmed that McIntyre iden- tified himself and the local to which he was affiliated, and that he complained about a problem within the Local. Moreover, there is also no question that Miller then imme- diately called Ransford after McIntyre 's telephone call and reported to him that he had received a call from a member of Ransford's Local, and that a complaint had been made. The only question is whether the subject of starvation of McIntyre was threatened during the telephone conversa- tion between Ransford and Miller . Ruth Nichols, the union secretary, testified that during their conversation Ransford stated that "he would starve the son-of-a-bitch out," meaning McIntyre , but both Miller and Ransford testified that the subject of starvation never came up. How- LABORERS ' LOCAL UNION NO. 525 ever, on direct examination Ransford said that he told Miller, "I wasn't going to starve nobody out." During cross-examination Ransford not only denied he made such a statement to Miller, but also denied he had made the statement on his direct examination. I have credited the testimony of Ruth Nichols, and have concluded that dur- ing the phone call between Miller and Ransford, Ransford did threaten to starve McIntyre out. General Counsel's Exhibit 5 is the Union's referral list or record from late January to mid-May 1975. As pointed out, this exhibit shows that on January 28, 1975, Tom McIntyre was number 2 on this referral list out of a total of about 72 workers, but McIntyre was not called at all in January 1975, even though at least four jobs came into the Union, and Ransford selected workers occupying the very lowest positions on the referral list.5 Moreover, there is no evi- dence that these four workers referred in January pos- sessed special skills or had worked for the contractors be- fore and/or were requested personally by the employer. As the General Counsel points out, this fact, in itself, reveals Ransford's disregard of the referral system, and also shows his propensity to operate the system "arbitrarily" and "ca- priciously" and in any fashion he so chooses. Ransford testified that he called McIntyre for jobs on February 3, 1975, and March 17, 1975, but on both occa- sions he refused the work. However, McIntyre credibly de- nied he was called or that he refused any jobs .6 Further- more, the above exhibit shows that there were approximately 29 jobs referred during February and March 1975, and all were filled by workers further down on the Union's referral list than McIntyre, and again no evidence that Ransford was sending out these workers ac- cording to their skill, past experience, or by specific re- quest. At one stage in his testimony Ransford did suggest that "to the best of his ability" he referred workers accord- ing to the five categories of his contract, and he also stated that when a laborer is requested he ascertains what particu- lar type of work they will be doing before making his refer- ral. In other words Ransford is contending that he can and does exercise discretion in most every referral and even when a laborer is requested. However, the credited evi- dence produced through witnesses for the General Counsel established that the first name on the referral list always goes out to the job unless another man is specifically called for, or unless special skills are a requirement, and the latter is usually restricted to bricktenders. Additional factors revealed by the referral list show, in fact, that during the first 6 months in 1975 a large percent- age of the 77 or 78 members were referred by Ransford to jobs before McIntyre, and even though he was number 2 on the list McIntyre did not receive his first referral in 1975 until late June, as aforestated, and some of the members even received three of four job referrals prior to McIntyre getting his referral to the downtown mall. On cross-exami- nation Martin Brockett, a laborer, admitted that since the first of the year he had been referred to and worked on 5 Mahoney, Freetly, Torrence, and Broadwell. 6 In several instances in this record the testimony by Ransford is contra- dictive and vague, and in a few other respects his testimony is totally unbe- lievable. 943 four different jobs even though he occupied the number 6 spot on the referral list on January 28, 1975. The General Counsel also attacks the Union's conten- tion that between January and May 1975, McIntyre was contacted several times but either refused work or was not at home, by reference to General Counsel's Exhibit 3. It is argued that during the January-May interval, this exhibit and record by the Union shows that McIntyre was only called five times, and on each occasion, he is listed as re- fused. The General Counsel points out that this exhibit or list in itself is very suspect in that it clearly appears it was prepared in response to the charges filed on May 8, 1975, and that a clear indication this is not a spontaneously kept regular business record, is the fact that the April 21 date precedes the April 16 date, when allegedly the Union called McIntyre to offer him a job. Secondly, it is also pointed out that the list does not even agree with the record testimony of Ransford and two of his executive board members who claimed that on May 9, 1975, after receiving the charges from the Labor Board, they placed two calls to the McIntyre house on the same evening and McIntyre did not respond to either call, but there is no indication on the purported referral record (G.C Exh. 3) that anyone called McIntyre on May 9.1 Based upon demeanor of the witnesses and the other facts and circumstances detailed herein, I am also in agree- ment that the calls placed to McIntyre's resident on May 9 and June 11, 1975, as aforestated, were placed in order to give the Union some defenses for not referring McIntyre sooner. Up to and including May 9, 1975, the Union had received numerous requests for workers or laborers which had been filed before McIntyre received the May 9 tele- phone call, and, as pointed out, by the time the second call was made on June 11 just about everybody on the referral list had already gone to work. Moreover, on June 11 Rans- ford merely called McIntyre to tell him that the Union intended to go to court over the charges involved herein, and that he intended to see that McIntyre paid back all of the unemployment insurance he had been drawing. Mc- Intyre did not deny that after receiving this call from Rans- ford, he hung up the telephone. There is also some testimony in this record that Mc- Intyre was an unsatisfactory worker and, therefore, not worthy of referral. However, even assuming that McIntyre had encountered some job-related problems, there were other members of Local 525 who also had problems on their jobs, but such factors and circumstances did not keep Ransford from referring these people. Martin Brockett had some "Union difficulty" when he worked for Fruin-Colon and was terminated, yet he was able to get other job refer- The General Counsel further points out that after the charges on May 8, 1975, were filed, Ransford sent a memorandum to the Board's Regional Office outlining the jobs that McIntyre had been called for, and that list indicates in handwriting that on April 28 and May 5 and 12, 1975, that McIntyre was called for a referral to Bush Track Work, Inc. and/ or Pascal P. Paddock, Inc., and the union business agent did not receive an answer to his telphone call. The General Counsel argues that these alleged calls are not listed on G.C Exh. 3 in the regular lineup of dates on which McIntyre was called, but are listed on the bottom of that alleged record, and are clearly an attempt to coordinate the two fabrications. The General Counsel also points out that they are not listed in chronological order, and which makes it suspect that they were written all on the same day and at the same time and not recorded as they allegedly occurred. 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rals through the Union. Howard Smith, the president of Local 525, was fired for fighting on the job, yet Ransford sent him back to work the next day. John Nichols, who was the laborer foreman when McIntyre worked on the Tymar job, testified that while McIntyre needed supervision, he was a "willing worker" and a "good worker ." Even the Union's own witness , Joseph Gehringer, admitted McIn- tyre did as good a job as anybody else on the Tymar job.8 The Union argues that the animus toward McIntyre is also refuted by its referrals of McIntyre to jobs immedi- ately after his complaints about Ransford to Warren Miller and to the Union 's International office in Washington, as aforestated . McIntyre's first referral, after his complaint about Ransford in early June 1974, was to the Tymar job, but it is clear from this record that the Union's former secretary, Ruth Nichols, was the individual who informed McIntyre of this job, and that Nichols was the one who actually referred him to the Tymar job and not Ransford. In fact, when Ransford heard about it, he made a visit to the Tymar jobsite and specifically informed the laborers that in the future he (Ransford), would be the only one to make referrals , and that he would not permit contractors to any longer request workers by name. In August 1974, following the Tymar job, McIntyre worked only 4 days for First Mississippi on their job, and then was referred to a job with Best Company, which last- ed only one-half day. During certain weeks in September, October, and November 1974, McIntyre then worked for Fruin-Colon Company. However, I agreed with the Gener- al Counsel that the reason McIntyre worked during these latter months in 1974 grew out of necessity, since it is clear from the testimony of Linda Dutton that during the period mentioned above the Union's referral list was "very low" and there were many jobs to fill. When McIntyre went back on the referral list in November of 1974, there were only 16 workers on the list out of work. The General Counsel further points out that Ransford also showed his intent to frustrate the employment efforts of McIntyre by refusing to return him to the position he occupied on the referral list prior to his being referred to the Highway Contractors Company job in the Burlington Mall. Indeed, I have concluded that there is credited testi- mony in this record by Tim Jackson and John Nichols showing that the system in practice, before McIntyre came along, was to the effect that if a man worked less than a week or 5 days regardless of how long the job lasted, he went back to the position on the referral list that he occu- pied before he was referred out. In McIntyre 's case Rans- ford changed the rules by stating that it was immaterial how long the employee stayed on the job, but what really 8 General Foreman Ronnie Harrison testified that from his observation on the Fruin-Colon job , McIntyre was not a good employee and was termi- nated, and that "ninety percent of it was on account of the way he was working." Harrison said that on three of four occasions he had informed the Union he would not take McIntyre if he was referred to him. It appears that Harrison has some 40 to 45 laborers to oversee , and at one point in his testimony stated he had never seen McIntyre before in his life. Further, Harrison was reluctant on the stand to admit that Ransford had asked him to testify . Since Harrison 's testimony leaves considerable doubt as to the authenticity or scope of his conversation , I have credited John Nichols since it is undisputed that he did observe and supervise McIntyre's work. mattered was how long the job itself lasted. However, this record shows that Howard Smith, president of Local 525, was discharged from a job and did not go back to the bottom of the list, nor did Martin Brockett who admittedly had problems on jobs, and yet was referred out several times before McIntyre was sent out. The Respondent also pleads an affirmative defense to the complaint on the grounds that McIntyre failed to ex- haust either contract grievance procedures or internal rem- edies within the Union. In support of this defense several members of Respondent's executive board testified that they bore no animosity towards McIntyre, and had he filed a grievance over Ransford's refusal to refer him to jobs, they would have handled the grievance fairly and impar- tially. As pointed out, it is well-established Board law that the failure by a charging party to seek and exhaust internal remedies before filing an ULP is no defense, and that a refusal to refer charge is more than an internal union prob- lem to be dealt with behind closed doors and exclusively by the Union. Such a charge involves and relates to a union, the charging party as a member of a union, and also any and all employers to whom the member should have been referred for employment and "it thus raises a whole com- plex of public policy issues relating to employment which touch a part of the public domain and which cannot be fully explored in an internal union proceeding." Laborers International Union of North America, Local No. 301 (Wil- liam E. Arnold Construction Co., et al.), 201 NLRB 279 (1973).9 In the final analysis, from January to July 1975, there is no question that Ransford implemented his plan to "starve out" McIntyre, and it was only after McIntyre filed his initial charge with the Board on May 8, 1975, that he was referred to a job. And I agree that even this job with High- way Contractors was a further indication that Ransford had plotted to get even with McIntyre since Ransford knew that the superintendent on the mall job wanted an experienced pipefitter, which McIntyre was not, but never- theless, Ransford referred McIntyre to this job knowing full well that he did not have the required experience and was destined to fail and lose the job. It is clear from this record that the superintendent on the Highway Contrac- tors job had requested an experienced pipefitter. In accordance with the above, it has been found that the Respondent is in violation of Section 8(b)(1)(A) and (2) of the Act. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I shall recommend that the Union cease and desist therefrom and take certain affirma- tive actions designed to effectuate the policies and purpos- es of the Act. I shall also recommend that Respondent make Thomas F. McIntyre whole for any loss of earning suffered by rea- 9 Respondent also objected to all testimony regarding conduct which pre- dated the 10(b) period. It is not the contention of General Counsel that any acts which occurred outside the 10(b) period are violative of the Act; how- ever, it is established Board law that such conduct may be used as back- ground evidence of similar conduct. LABORERS ' LOCAL UNION NO. 525 945 son of the discrimination against him . Respondent's liabili- ty for backpay shall commence on January 1, 1975,10 and run thereafter until the date that the Respondent has com- menced the nondiscriminatory referral of Thomas F. Mc- Intyre. Loss of earnings shall be computed in accordance with the formula approved in F. W. Woolworth Company, 90 NLRB 289 (1950), and in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). CONCLUSIONS OF LAW 1. The Respondent herein is a labor organization within the meaning of Section 2(6) and (7) of the Act. 2. Pascal P. Paddock, Inc., is an employer engaged in commerce within the meaning of the Act. 3. By causing, or attempting to cause, Paddock and other employers, in violation of Section 8(a)(3) of the Act, to deny employment to McIntyre because he has engaged in protected internal union activities and thereby refusing to make job referrals on his behalf, the Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(2) of the Act. 4. By threatening McIntyre with reprisals because he en- gaged in legitimate internal union affairs, the Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the above findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 11 The Respondent Union named herein, its officers, 10 During December 1974, McIntyre took a trip to the East Coast and notified the Union of his unavailability during December. 11 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions , and recommended Order herein shall , as provided in Sec. 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. agents, and assigns, shall: 1. Cease and desist from: (a) Causing, or attempting to cause, Paddock and other employers, in violation of Section 8(a)(3) of the Act, to deny employment to Thomas F. McIntyre, or any other employee, because he has, for union consideration, not been cleared or referred by the Respondent for such em- ployment. (b) Threatening Thomas F. McIntyre or any other em- ployees with reprisals because they engage in internal union affairs. (c) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act, except in a manner permitted by Section 8(a)(3) of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Make Thomas F. McIntyre whole for any loss of earnings suffered by him by reason of the discrimination against him as set forth in "The Remedy." (b) Post at its office and meeting hall copies of the at- tached notice marked "Appendix." 12 Copies of said notice, on forms provided by the Officer-in-Charge of Subregion 38, after being duly signed by Respondent's representative, shall be posted by Respondent Union immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent Union to in- sure that said notices are not altered, defaced, or covered by any other material. (c) Additional copies of the attached notice marked "Appendix" shall be forewith returned to the Officer-in- Charge of Subregion 38 for posting.by Paddock, if willing, at their business office where notices to its employees are customarily posted. (d) Notify the Officer-in-Charge of Subregion 38, in writing, within (20) days from the date of this Order, what steps it has taken to comply herewith. 12 In the event that the Board's 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."