Local 889, Laborers Union

National Labor Relations Board - Board DecisionsAug 27, 1980

251 N.L.R.B. 1579 (N.L.R.B. 1980)

LOCAL 889, LABORERS UNION 1579 Local 889, Laborers' International Union of North America, AFL-CIO (Anthony Ferrante & Sons, Inc.) and Leroy Hay Local 889, Laborers' International Union of North America, AFL-CIO and Henry Little and New Jersey Asphalt Pavement Association and its Employer Members, and Associated General Contractors of New Jersey and its Employer- Members, Parties in Interest. Cases 22-CB- 3912, 22-CB-3913, and 22-CB-3935 August 27, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On May 28, 1980, Administrative Law Judge Julius Cohn issued the attached Decision in this proceeding. Thereafter, Respondent and the Gener- al Counsel filed exceptions and supporting briefs, and Respondent and the General Counsel each filed briefs in response to the other's exceptions. 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, find- ings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order. 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 and hereby orders that the Respondent, Local 889, La- borers' International Union of North America, AFL-CIO, Newark, New Jersey, its officers, I The General Counsel and Respondent have excepted to certain credi- bility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an administrative law judge's resolu- tions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. I Respondent excepts, inter alia, to the Administrative l.aw Judge's finding that it discriminated against Tyrone and Charles Little with regard to referrals for employment in violation of the Act, on grounds that no such violation was alleged in the complaint and the General Counsel disclaimed at the hearing that he was seeking backpay for anyone other than the two Charging Parties. Although this matter was not specifically alleged in the complaint, it is reasonably related to the complaint's other allegations, and it was litigated through the testimony of Henry and Tyrone Little, and Respondent's cross-examination of Tyrone Little We note also that the General Counsel's disclaimer on the record pertains to a separate allegation in the complaint We therefore find that the Administrative Law Judge properly made findings as to this issue. 251 NLRB No. 211 agents, and representatives, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR REATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT refuse to refer Henry Little, Tyrone Little, Charles Little, and Leroy Hay for employment because of their intraunion ac- tivities and their opposition to the leadership of our business manager. WE Willt. NOT cause, or attempt to cause, Anthony Ferrante & Sons, Inc., or any other employer, to discharge Leroy Hay or any other employee for his intraunion activity and opposition to our business manager. WE WILl. NOT in any like or related manner restrain or coerce employees in the exercise of rights guaranteed in Section 7 of the Act. WE wil.L. make Leroy Hay, Henry Little, Tyrone Little, and Charles Little whole for any loss of earnings suffered by them as a result of the discrimination against them, plus interest. WE WILI. notify employers who use our hiring hall that Leroy Hay, Henry Little, Tyrone Little, and Charles Little will have full use of our hiring hall facilities without discrim- ination for the purpose of referrals for employ- ment. LOCAL 889, LABORERS' INTERNA- TIONAL UNION OF NORTH AMERICA, AFL-CIO DECISION STATEMENT OF THE CASE JULIUS COHN, Administrative Law Judge: This case was heard at Newark, New Jersey, on February 26, 27, and 28, 1979. Upon charges filed on August 28, 29, and October 5, 1978, the Regional Director for Region 22 issued a complaint and order consolidating cases on Oc- tober 17, 1978, and an amended complaint and order consolidating cases on February 26, 1979. The amended complaint alleges that Local 889, Laborers' International LOCAL 889, LABORERS UNION 1580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union of North America, AFL-CIO, herein called Re- spondent or the Union, violated Section 8(b)(1)(A) and (b)(2) of the National Labor Relations Act, as amended, herein called the Act, by operating a hiring hall and an exclusive system of referral without objective criteria or standards, and by unlawfully referring employees who are members of Respondent before nonmembers. It is also alleged that Respondent unlawfully caused Anthony Ferrante and Sons, Inc., herein called Ferrante, to dis- charge Leroy Hay, because Hay had engaged in protect- ed-concerted activity on behalf of the Union. It further alleged that Respondent has refused to refer Henry Little to employment because of his internal political activities within the Union. Respondent filed an answer denying the commission of any unfair labor practices. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. The General Counsel and Respondent have submitted briefs which have been carefully considered. Upon the entire record in this case, and from my ob- servation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. JURISDICTION Ferrante, a New Jersey corporation, has a principal office at Bernardsville, New Jersey, and is engaged as a contractor in the construction industry, performing gen- eral paving, and construction work at jobsites in the State of New Jersey. During the year preceding the issu- ance of the complaint, Ferrante provided paving services valued in excess of $50,000, which were performed in States outside the State of New Jersey, and also pro- vided such services for government departments of the State of New Jersey itself and other enterprises, each of which purchased goods and materials in excess of $50,000 which had been transported to New Jersey from locations outside of that State. The complaint alleges, Respondent admits, and I find that Ferrante is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. Ii. THE LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR L.ABOR PRACTICES A. The Hiring Hall Operation 1. The facts Respondent has had a series of collective-bargaining agreements with New Jersey Asphalt Pavement Associ- ation and the Associated General Contractors of New Jersey, as well as with individual contractors and em- ployers. The most recent contract was effective March 1, 1978, for a period of 3 years, and contains the following provisions with respect to referral and hiring of employ- ees: (b) In the event that any Employer should use the services of the Union to secure or recruit em- ployees it is specifically understood and agreed that: (I) All referrals or selections or applicants for re- ferral to jobs shall be on a non-discriminatory basis and shall in no way be affected by Union member- ship, by-laws, rules, regulations, constitutional pro- visions, or any other aspect or obligation of Union membership, policies or requirements. (2) The Employer shall have the right to reject any applicant for employment referred by the Union, without discrimination as to union member- ship or as to race, color, religion, ancestry, national origin, or age. (3) The Union or its agent shall have the right to inquire of the Employer as to the number of hours' work which the Employer has available for the em- ployees requested on the day involved. If the Em- ployer offers less than eight hours' employment on any such day, it shall not be a violation of this Agreement for the Union to refer the available men to other Employers who offer a full day's employ- ment. The Employer shall, if the Union is unable to supply the necessary help, have the right to secure such help for the day in question, from other availa- ble sources. (c) The Union herewith agrees that where a man is the permanent employee of an employer hereun- der or works for an employer for substantial periods of time and is part of a gang, this employee shall not be taken from said employer in order to make up another gang for another employer. In short, there shall not be a disruption of this man's work where he is fairly consistently employed by a par- ticular employer. Testimony concerning the operations by Respondent of its hiring hall in Newark, New Jersey, was given by the present business manager, William Blackwell, and his predecessor, Edwards, who have been internal political rivals apparently for many years. The business manager, an elected official, is the only paid officer of the Union. Edwards, who was defeated for reelection in June 1976, is currently the administrator of Respondent's Welfare and Pension Fund. In addition, various other members and officials, most of whom have been members for many years, testified regarding the operation of the hall. Finally, one Employer-Contractor, Ferrante, also related his experience with Respondent's hiring hall. The asphalt paving industry is a seasonal one, running from spring until, weather permitting, December of the year. There are about 200 members in the Union as well as a much smaller number of nonmembers who come to the hall seeking jobs. A contractor using the hall will most often call at the beginning of the season for one or two crews, as needed, each crew consisting of six em- ployees. These will usually suffice a contractor, who thereafter may call the hall for a replacement in the event of absence for any reason of any of his crew- members. Frequently a contractor will request the same crew it used the year before, or, in the event of a layoff in season, will ask that the same crew be returned to LOCAL 889, LABORERS UNION 1581 him. Veteran union members who testified, as witnesses for both sides. uniformly stated that they used the hall as a source of employment. On occasion a contractor, for whom they may have worked previously, will call them directly, but, in such a situation, the employee will advise the hall and obtain routine clearance. There is agreement among all employee-members who testified, as well as Edwards and Blackwell, that union members were always referred in preference to nonunion applicants. This held true despite the policy of the busi- ness managers to mix crews so that they contain both ex- perienced and skillful employees and one or two who were relatively inexperienced. However, this practice was able to be carried out so that union members were preferred in referral to employment over nonmembers. This was possible because there were not enough union members to fill the requests of the contractor-employers at times of peak employment. Edwards testified that during his tenure from 1961 to June 1976, as business manager, it was his understanding that employers who were party to the agreements' were obligated to obtain employees from Respondent's hiring hall unless no one there was available for work. Al- though Edwards was asked as to what he would do when he found that contractors "were not abiding by their obligations to procure men through the Local 889 hall," a question obviously referring to contractors who were signatory to the agreement, Edwards replied that he would go out and make sure that they signed a con- tract with his Union. He then said that contractors he was able to sign up would obtain their employees from the Union's hiring hall." He responded negatively to a flagrantly leading question, concerning whether employ- ers using nonunion men, indicated to him that they had a right under the contract to get men without going through the Union. On the other hand, Blackwell, the current business manager, testified that it was his understanding that the contract did not bind employers to use men from the Union. He stated that they do so because the union men are skilled but nevertheless even contractors who are members of the association, and therefore bound to the collective-bargaining agreement, do use other employees who are not members of the Union. He stated that some contractors will use only the union members for the skilled jobs, such as screed men or rakers and use other sources for the more unskilled labor. Blackwell says he tries to convince such contractors to use men from the hiring hall. Both business managers are in agreement that, during their respective tenures in office, no written records are kept of applicants signing in for referral or of actual re- ferrals. Apparently both of them operated without the use of written notes or records and worked out of their heads. In addition to the allegation in the complaint concern- ing preference and referrals to members as against non- members, it is also alleged that the hiring hall was oper- ated in an arbitrary and capricious manner. I The hiring and referral provisions of the collective-hargaining agree- ments are the same in the current contract as in the prior agreement. The only Employer to testify with respect to the hiring hall was Constantine Ferrante, an officer of An- thony Ferrante & Sons, Inc., a member of the Associated General Contractors of New Jersey and party to the contract with the Union through its membership in the Association. Ferrante stated that in the last 2 years he had obtained a "majority" of his asphalt workers from Local 889 for jobs in its area, as he has never refused a job to anyone referred by that Union. He said that his Company employed steadily one six-man crew and a second crew as required. 2 Ferrante said that it was his understanding of the agreement that he was free to obtain his employees anywhere. Ferrante stated that, al- though he had not called in a crew from unions other than Local 889 in the past 2 years, he has had people in from other locals to work a day or two on a crew. 2. Conclusions as to the exclusivity of the hiring hall I find that the collective-bargaining agreement does not provide for an exclusive hiring hall. The language, relating to referral of employees by the Union to em- ployers, is clearly permissive, as certain provisions are made "in the event" an employer calls the Union for a referral of an employee. The issue herein, with respect to exclusivity, derives from the contention of the General Counsel that, by virtue of the policy and practice existing between the Union and employers using its hiring hall, an exclusive referral system has been created. I am not persuaded that the General Counsel has fulfilled his burden of proving that allegation by a preponderance of the evidence. A number of employees testified, both on behalf of the General Counsel and Respondent, to the effect that over the years they have obtained their employment entirely through the hall. Indeed, in some instances, where one of them has been called directly to work by an employer, that employee, also a member of Respondent, uniformly notified Respondent and obtained clearance. However, these employees were veteran members of the Union who had been in the habit of going to the union hall almost every day, even though not seeking employment, but used the hall as a rendezvous before departing for work. The question here is not whether employee members exclusively used the hiring hall, but rather whether em- ployers were actually bound or as a matter of practice exclusively used the hall. There is some question wheth- er the testimony of one Employer, Ferrante, would in and of itself be sufficient to establish a policy and prac- tice in a wide geographic area comprising Respondent's jurisdiction. But assuming that one employer's experience could be sufficient, the testimony of Ferrante on this 2 In his statement to the National Labor Relations Board. Ferrante had stated that in the past 3 or 4 years he had hired only people from Local 889. He corrected this to 2 years in his oral testimony. Prior to the last 2 years, there had been a period of some years when he did not hire people from Local 889 though still a party to the Association Contractor with that Union This was explained without contradiction by Edwards, the former business manager, who said that he refused to refer employees to Ferrante during that period because the Company was In default on wel- fare, pension, and health benefits LOCAL 889, LABORERS UNION 1582 I)FCISIONS OF NATIONAL LABOR RELATIONS BOARD record is not conclusive. The sum of his evidence is to the effect that in the past 2 years he obtained full crews, as needed, from Respondent. However, it is not all that clear, in fact the opposite may be true with respect to casual employees, replacement employees, or short time employees working on paving. Ferrante said he obtained a "majority," not all, of his employees from Respondent, and that he used fill-ins from other sources. I therefore find that the evidence has been insufficient to establish that Respondent, as a result of policy and past practice, has operated an exclusive hiring hall. Having found that Respondent's hiring hall is not ex- clusive either by contract or practice, there can be no violation found from the conceded fact that, in response to requests from employers, the Respondent uniformly prefers union members to nonmembers, as applicants are free to obtain employment from employers and sources outside of the Union.3 Moreover, absent an exclusive hall, the failure of Respondent to keep written records of openings and referrals and to refer applicants for em- ployment in a more orderly manner does not of itself violate the Act as alleged herein. 4 Accordingly, I shall dismiss those allegations of the complaint that derive from the alleged existence of an exclusive referral proce- dure maintained by Respondent.5 B. Henry Little The complaint alleges that since March 1, 1978, Re- spondent failed to refer Little for employment, to the same degree as others, because of the unlawful, arbitrary manner in which Respondent operated an exclusive hiring hall. It also alleges that the failure to refer Little was due to his protected concerted activities. Having found that the hiring hall maintained by Respondent was not exclusive, the latter allegation will be considered. Little was a member of Respondent since at least 1954 and regularly shaped at its hiring hall ever since. Through the years Little worked with a fair degree of regularity. In the 1976 election contest between Black- well and Edwards, Little was a supporter and campaign- er in behalf of Edwards and associated with the latter's friends. It is quite apparent from this record that the membership was split in its support of the two rival busi- ness managers. In 1978 through August, Little did not receive a great deal of employment from his shaping at the hiring hall under Blackwell. Although he was at the hall every day, he succeeded only in obtaining 1 or 2 days of work a week while most of the other members worked steadily. It is agreed, as noted above, that union members were routinely referred to employment in preference to non- members and that in season there was steady work for a Local 357. International Brotherhood of Teamsters. Chauffeurs, Ware- housemen and Helpers of .merica Los .ngeles-Seattle Motor Express] v. N.L.R.B., 365 U.S. 667 (1961). ' See Local 394. Laborers' International Union of North America. AFL- CIO (Building Contractors Associarion of New Jersey), 247 NLRB No 5 (1980), where the Board would not find the failure of union, even under an exclusive referral system, to keep written records, a per se violation of Sec. 8(bHI)(A) and (2) of the Act. ' This is not to preclude the finding of unlawful discriminatory failure to refer applicants for employment based on other theories under the Act. all members. His first job in 1978 was with a crew work- ing for a contractor named Bossert. The crew was em- ployed for 2 or 3 weeks and then laid off and informed that it would be called back in a week. Despite the fact that Little was at the hall when the crew was recalled, he was not referred by Blackwell, whose normal practice was to keep a team intact in the interest of teamwork. Similarly in June, he worked for about a week with a contractor, Mark Paving, and was laid off due to bad weather. Again he was in the hall when this crew was called back but Blackwell sent back the entire crew except Little. Eventually, in August 1978 Little was re- ferred to a job at Newark Engineering. In this instance, the contractor called for a man with a car and Little was the only one at the hall available with his own car. Moreover, Blackwell had stated that the job was only for a day or two, but according to Little the employer liked him and he was kept at work until Christmas. In early 1978 through August, the union pension fund records revealed that Little was employed for 152 hours in that period while others, such as friends of Blackwell, worked from 600 to 900 hours and two retirees who had returned for part time worked respectively 430 and 535 hours. During this period, Little on various occasions ap- proached Blackwell and complained about his failure to be referred to employment. According to Little, on one occasion Blackwell suggested that he talk to the man up- stairs, referring to Edwards, the former business man- ager. In late 1977, Little's son, Tyrone Little, a nonmember began shaping at the hiring hall. During that year, he ob- tained employment for about 3 months. It is the policy for nonmembers, when commencing employment, to make a deposit of $25 for a membership book and then pay the balance of the $250 initiation fee in installments as they work. Little testified that he inquired of his son as to whether he had been making payments towards his membership book and was told that he had. When Little asked his son for receipts, Tyrone replied that he did not have any receipts. Tyrone testified that he had indeed made a number of payments, but did not know how much or how many, to Blackwell and was not given any receipts. In 1978, Little, Sr., made a $25 payment in behalf of his son and was given a receipt dated June 7 by Blackwell. There ensued a confrontation between Little and Blackwell, when the former asked why his son had been paying money and not getting receipts. Blackwell denied receiving money from Tyrone without issuing re- ceipts. Carson, currently president of the Union, and an- other member, Ramsey, were present at the time and they looked through the receipt book to see whether any receipts had been issued to Tyrone Little. The only thing they could come up with was a receipt for $10, which Blackwell said had been given to Tyrone for money do- nated to the Union toward purchase of an automobile. Respondent submitted a list of donors including Tyrone which had been posted at Respondent's hall. Blackwell explained his request of Tyrone for a dona- tion by the fact that Tyrone had begun shaping in 1977, rather late in the year, and he suggested that he make LOCAL 98R9, LABO(RERS UNION 158.3 this donation, rather than commence paying installments on a union book. The General Counsel has contended that the failure to account for payments allegedly made by Tyrone Little toward his initiation fees is another example of the arbi- trary and capricious manner in which Respondent oper- ated an exclusive hiring hall. However, since I have found this hiring hall not to be exclusive, I make no find- ing concerning the alleged incident regarding payments of dues. In any case, the evidence is insufficient to deter- mine that Blackwell had actually received payments from Tyrone Little as alleged. Mr. Little, Sr., did not see these payments made by Tyrone, nor were there any other witnesses to them. Moreover, Tyrone's testimony was not clear on these matters and he seemed somewhat confused. The only tangible evidence is the receipt for the payment made by Little, Sr., and the receipt for a donation toward the purchase of the automobile. I would find, therefore, that the General Counsel has not shown by any preponderance of evidence that funds were mis- handled by Blackwell with regard to Tyrone Little's al- leged payments towards his initiation fees. In addition to the referral experience encountered by Little in 1978, his sons, Tyrone and Charles, received no referrals for employment subsequent to the July 7 con- frontation between Little and Blackwell. I find that Respondent through Blackwell discriminat- ed against Henry Little, with respect to referrals during 1978 because of the internal union activities in which he was engaged, such as his outward and obvious support of Blackwell's rival for the post of business manager, his dispute over the dues, and his letter of complaint to the executive board which resulted in a hearing. It appears obvious in this small local, based on the testimony of all witnesses, that during the season, particularly late spring and summer, there was more than enough work for its members who were referred in preference to non- members. When this is viewed in connection with the great disparity in hours worked during that period be- tween Little and those of other members, notably friends and supporters of Blackwell, the inescapable conclusion is that Blackwell for political or personal reasons was failing to refer Little to employment. This is especially noticable in the two instances of Little, having been as- signed to crews which were laid off, not being included when the crews were recalled by the employers, despite Blackwell's testimony that it was the practice to keep a crew intact because it was desirable that they work to- gether. As to the confrontation with Blackwell concerning the alleged dues payments by his son, only the incident itself is important and not the question whether the dues pay- ments were actually received by Blackwell. Thereafter, the only referral received by Henry Little was to an em- ployer who needed someone with a car, and even then Blackwell assumed that was a job for only a day or two. In addition, Little had addressed a letter of complaint concerning the dues matter to the Union's executive board which resulted in a hearing exonerating Blackwell. Nevertheless, Blackwell did stand accused by Little. In sum, I find that Respondent discriminated against Henry Little with regard to referrals in 1978 in violation of Sec- tion 8(b)(1)(A) of the Act. This violation attains despite the fact that I have found that Respondent does not op- erate an exclusive hiring hall. 6 As Tyrone and Charles Little had been shaping the hall for a period of time as nonmembers and received no referrals subsequent to the July 7 incident, I find further that Respondent discrimi- nated against them with regard to referrals for employ- ment during the period subsequent to July 7, 1978, until the end of that season. C. Leroy Hay Hay had been shaping at the union hall since 1972 and normally was referred to a job in the spring, which he held until the end of the season. In early 1978, Hay was referred by the hall as part of a paving crew at Ferrante. The head raker and leader of that crew was Bryant Allen, a close friend of Blackwell. He and the crew worked steadily until August 24, when Hay was dis- charged by Ferrante. Constantine Ferrante, an officer of the Company, testi- fied that, shortly before the incident leading to Hay's dis- charge, he had a conversation with Blackwell concern- ing another employee, George Allen, the son of Bryant Allen. who was frequently referred to him by Blackwell to work in a crew with his father. Blackwell's purpose ,,as to request another chance for Allen from Ferrante who was about to discharge George for attendance prob- lems. Ferrante assented but discharged George Allen ap- proximately 10 days later for failing to show up for work. Ferrante stated that, on August 24, he received a call from his foreman, Fox, who informed him there had been a problem for several days because Hay, Bryant Allen, and Williams, a paver operator, were arguing. Ferrante said he called the hiring hall, spoke to Black- well, and told him he thought Allen was the problem. Blackwell contradicted stating it was Hay who was caus- ing the trouble and, if Ferrante wanted a good crew, Hay had to be replaced. Accordingly, Ferrante immedi- ately discharged Hay. Finally, Ferrante testified that based upon the information he had received from his foreman, Fox, he had been of the opinion that Allen was the troublemaker in this instance, but he acceded to Blackwell's request. Ferrante said he believed that, in order to retain a good crew, he should follow Black- well's suggestion in this instance and further, if Black- well had suggested that Allen was the cause of the trou- ble, he would have let Allen go. It is noteworthy that Ferrante called Hay at home on Saturday, 2 days later, and asked if he would like employment at another posi- tion, outside of Respondent's unit, which Hay accepted and went back to work for Ferrante the following Monday. Actually, there had been a dispute on August 24. In fact, according to Hay, there was a dispute the day Piplinl Loc.al Lnion .Vo. 38, affiliated with the Laborers' Internatuinal U:non i, /%'ort h imertca, .4F1.-C1O (Hancoc-.i-,rrhwr,. J IV . 247 NlRB N, 150 (1 98)) ChaufJiurs LUnion lofal 923. Interniurlna Broherhrxd of reamsers. Chatfteur. Warehousemen and Helper of America Ye/'llo Cab Company, Yello. Cab Company of Alameda Couniv and .4irporTransrl, 172 NI.RH 2137 i196R) LOCAL R59, LAI3ORFRS UNION I 10 1584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD before between Allen and Williams, the paver operator, which Hay broke up. The following day Allen accused Hay of hitting him on the wrist with his shovel, an action which Hay denied. In any case there were words between them. However, the issue is not really whether Hay struck Allen with a shovel, but rather the method by which Hay was discharged and it is clear that this was done at the suggestion and urging of Blackwell. It is clear that Blackwell was a close friend of Allen and apparently Hay had fallen in disfavor by reason of his endorsement of Little's August 7 letter of complaint. Also clear is that Blackwell, having appointed Allen as head raker for the crew, had interceded for his son who, while apparently a good worker, was possessed of a very poor attendance record. While Respondent contended and offered some evi- dence to the effect that Hay had caused trouble at other jobsites in prior years, it is equally apparent that Allen had a similar record. Ferrante credibly testified that he discharged Hay at the insistance of Blackwell. I find that the latter acted because of Hay's involvement in protect- ed internal union activity including his support of Little as well as a desire on the part of Blackwell to protect Allen, his supporter. By Blackwell's conduct, Respond- ent thereby violated Section 8(b)(1)(A) and (2) of the Act. 7 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of the Employer described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discriminatorily denied Henry Little, Tyrone Little, and Charles Little, referral to jobs from its hiring hall in violation of Section 8(b)(l)(A) of the Act, and further that Respondent vio- lated Section 8(b)(2) by causing Anthony Ferrante & Sons to discharge Leroy Hay, it is therefore recommend- ed that Respondent make whole Leroy Hay, Henry Little, Tyrone Little, and Charles Little for their loss of earnings and benefits which resulted from the discharge of Hay, and the failure to refer Henry, Tyrone, and Charles Little from the hiring hall. The amounts of back- pay shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon to be computed in the manner prescribed in Flor- ida Steel Corporation, 231 NLRB 651 (1977).8 ? Pipeline Local Union No. 38, affiliated with the Laborers' International Union of North America. AFL-CIO (Hancock-Northwest. J. V), supra. 8 See, generally, Isis Plumbing Heating Co., 138 NLRB 716 (1962). CONCLUSIONS OF LAW I. Anthony Ferrante & Sons, Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By refusing to make job referrals to Henry Little during the period March 1, to August 1978, because of Little's internal union activity, Respondent violated Sec- tion 8(b)(l)(A) of the Act. Because Respondent, after July 7, 1978 refused further referrals to Tyrone and Charles Little, sons of Henry Little, because of the lat- ter's activities, Respondent further violated Section 8(b)(1)(A) of the Act. 4. By causing Ferrante to discharge Leroy Hay on August 24, 1978, because of Hay's intraunion activities, Respondent violated Section 8(b)(2) and 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. 6. Except as specifically found herein, Respondent had not otherwise violated the Act with respect to the allega- tions in the consolidated complaint. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER 9 The Respondent, Local 889, Laborers' International Union of North America, AFL-CIO, Newark, New Jersey, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Failing and refusing to refer from its hiring hall for employment Henry Little, Tyrone Little, Charles Little, and Leroy Hay because of their intraunion activities and opposition to the business manager. (b) Causing Anthony Ferrante & Sons, Inc., or any other employer to discharge Leroy Hay, or any other employee, because of his intraunion activities or opposi- tion to the business manager. (c) In any like or related manner restraining or coerc- ing employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Make whole Henry Little, Tyrone Little, Charles Little, and Leroy Hay for any loss of earnings suffered by them as a result of the discrimination against them, in the manner set forth in the section of this Decision enti- tled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agent for examination and copying all re- cords relevant and necessary for the determination of the amounts of backpay due. 9 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 find- ings, 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. LOCAL 889, LABORERS UNION 1585 (c) Notify Anthony Ferrante & Sons, Inc., that Re- spondent has no objection to its employment of Leroy Hay. (d) Notify employer-members of New Jersey Asphalt Pavement Association, Associated General Contractors of New Jersey, and any other employers who use Re- spondent's hiring hall, that Respondent has no objection to the employment of Henry Little' Tyrone Little, Charles Little, and Leroy Hay and that they will have full use of hiring hall facilities without discrimination for the purpose of referrals for employment. (e) Post at Respondent's offices, meeting halls, and hiring halls copies of the attached notice marked "Ap- pendix." °0 Copies of said notice on forms provided by 'o In the event that 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 Pursu- the Regional Director for Region 22, after being duly signed by Respondent, shall be posted immediately upon receipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Mail to the Regional Director for Region 22, signed copies of said notice for posting by Anthony Ferrante & Sons, Inc., if willing, at their business offices and con- struction sites where notices to their employees are cus- tomarily posted. (g) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order what steps Respondent has taken to comply herewith. ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "