276 N.L.R.B. 59 (N.L.R.B. 1985)

Carpenters Local 720 (Umc Of Louisiana)

National Labor Relations Board - Board DecisionsAug 27, 1985

276 N.L.R.B. 59 (N.L.R.B. 1985)

CARPENTERS LOCAL 720 (UMC OF LOUISIANA) Millwright and Machinery Erectors, Local Union 720, United Brotherhood of Carpenters and Joiners of America (UMC of Louisiana, Inc) and Leland H Johnson Case 15-CB-2984 27 August 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 24 April 1985 Administrative Law Judge Richard J Linton issued the attached decision The Respondent filed exceptions and a supporting brief, and the General Counsel filed limited exceptions and a supporting brief The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge' s rulings, findings, i and conclusions as modified, but not to adopt the rec ommended Order We agree with the judge, for the reasons he stated that the Respondent violated Section 8(b)(1)(A) of the Act by threatening to file, filing, and announcing to its membership that it had filed internal charges against employee member Johnson for declining referral from the Respondents hiring hall while maintaining his name on the out-of-work list at the hall and simultaneously working for a nonsignatory employer, and by imposing discipline on Johnson pursuant to the charges, where the charges against Johnson reflected a change in the Respondent's previous policy made without ad vance notice of the change to its membership However, we are of the view that the judge erred in finding that the Respondent violated the same section of the Act by filing similar charges against employee members King Baker and Avants and in affirmatively ordering it to remedy violations with respect to these three members The complaint al i The Respondent has excepted to some of the judge s credibility find mgs The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings In part III B of his decision the judge erroneously referred to a meet mg of the Respondents council as having been held on 24 August 1984 when it is clear from the record as well as from the rest of the judge s decision that the meeting in question occurred on 9 August 1984 In part III C 2 of his decision the judge erroneously referred to the personal office of Charging Party Johnson when it is clear from the record as well as from the rest of the judge s decision that the office in question was that of the Respondents business representative and financial secretary Bennett In part III C 4 the judge also erroneously referred to Bennett s testimony about filing charges as Johnson s testimony These inadvertent errors do not affect our decision 59 leged a violation of the Act specifically and solely with respect to the charges the Respondent brought against employee Johnson The General Counsel did not seek to amend the complaint at the hearing to incorporate alleged violations as to the charges filed against King, Baker, and Avants or to allege in a general way that the Respondent had violated the Act by filing charges against individ uals other than Johnson Moreover, at no point during the hearing did the General Counsel clearly assert that he considered charges filed against King Baker, and Avants to violate the Act 2 Indeed, he objected to the introduction of evidence refledting the fact that such charges had been filed In these circumstances, we are unable to find that the Respondent violated the Act by filing charges against employee members King, Baker, and Avants9 and, accordingly, we substitute the follow mg remedy, Order, and notice to members for those proposed by the judge 4 THE REMEDY Having found that the Respondent has engaged in these 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 We have found that the Respondent acted un lawfully by threatening to file internal umon charges against Leland H Johnson, Jr, by filing charges against him, and by processing such charges, trying him on the charges, finding him guilty, and imposing discipline of a $500 fine and suspension of his membership We therefore shall order the Respondent to expunge its records of the charges and internal disciplinary proceedings against Johnson and to refund to Johnson the $50 appeal deposit, with interest which he paid as a prerequisite to filing his appeal of the discipline im posed on him by Local 720 Interest shall be coin puted in the manner prescribed in Florida Steel Corp, 231 NLRB 651 (1977) See generally Isis Plumbing Go, 138 NLRB 716 (1962) ' At the conclusion of the hearing Judge Lorton asked the General Counsel Well does the remedy that you seek go to the other people as well as to Johnson The General Counsel replied It would It would go to-as I said it would be a broad remedy here This remark by the General Counsel concerning the scope of the remedy is insufficient basis in our view for a finding that the violation runs to named employees other than Johnson inasmuch as the violation was not alleged or litigated as such 3 We delete the reference to King Baker and Avants in Conclusion of Law 5 4 We have also eliminated from the judges proposed Order the ex traordmary remedy of requiring the Respondent , at its next membership meeting to announce that it has rescinded the policy reflected in the charges filed against Johnson and that it will adhere to the procedures followed before the charges against Johnson were filed until such time as the Respondent gives adequate notice that it is adopting such a policy 276 NLRB No 10 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER The National Labor Relations Board orders that the Respondent, Millwright and Machinery Erec tors, Local Union 720 United Brotherhood of Car penters and Joiners of America Baton Rouge Louisiana, its officers, agents, and representatives, shall 1 Cease and desist from (a) Threatening that it will file internal union charges against members of Local 720 who decline job referrals while they are (1) registered on the out of work list and (2) currently working for a nonunion contractor when Local 720 has not given members fair notice that it is adopting such a policy (b) Operating its exclusive hiring hall and refer ral system in an arbitrary or a discriminatory manner by (1) failing to timely and fully inform all members of Local 720 of changes in internal union policy which would directly and adversely impact on the ability of members to obtain job referrals without fear of internal union discipline, or by (2) filing or accepting internal union charges, and thereafter processing the charges against, and im posing disciplinary action against, members who decline job referrals when such members are (a) registered on the out of work list and (b) currently working for a nonunion contractor when Local 720 has not given members fair notice that it is adopt ing such a policy (c) 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 neces sary to effectuate the policies of the Act (a) With interest computed in the manner de scribed in the remedy section of the decision, refund to Leland H Johnson Jr the $50 appeal bond or deposit he made as a prerequisite for filing his appeal from the discipline imposed on him 13 December 1984 (b) Rescind the $500 fine levied against Leland H Johnson, Jr and rescind his suspension from membership in the Respondent (c) Expunge from its files any reference to the charges and disciplinary action taken or processed against Leland H Johnson, Jr and notify him in writing that this has been done and that these un lawful disciplinary proceedings will not be used as a basis for future action against him (d) Preserve and, on request, make available to the Board or its agents for examination and copy ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (e) Post at its hiring hall copies of the attached notice marked Appendix 5 Copies of the notice on forms provided by the Regional Director for Region 15 after being signed by the Respondent s authorized representative, shall be posted by the Respondent immediately upon receipt and main tamed for 60 consecutive days in conspicuous places including all places where notices to mem bers are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the no tices are not altered, defaced, or covered by any other material (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply IT IS FURTHER ORDERED that complaint para graph 15, alleging that the charges against Leland H Johnson, Jr were filed and processed to retali ate against him for his protected activities, is dis missed b If this Order is enforced by a Judgment of a United States Court of Appeals the words in the notice reading Posted by Order of the Na tional Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation al Labor Relations Board 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 the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT coerce or restrain you in the exer cise of the rights guaranteed you by Section 7 of the Act by threatening to file internal union charges again st you because you decline to accept job referrals even though you are (1) registered on the out of work list and (2) currently working for a nonunion contractor when we have not given you fair notice that we are adopting such a policy WE WILL NOT operate our exclusive hiring hall and referral system in an arbitrary or discrimmato- ry manner by (1) failing to timely and fully inform all members of Millwnght and Machinery Erec tors, Local Union 720, United Brotherhood of Car penters and Joiners of Amenca of changes in inter nal union policy which would directly and ad- versely impact on your ability to obtain job refer rals without fear of internal union discipline, or by CARPENTERS LOCAL 720 (UMC OF LOUISIANA) (2) filing or accepting internal union charges against you and thereafter processing the charges against you and imposing disciplinary action against members who decline job referrals when they are (a) registered on the out of work list and (b) currently working for a nonunion contractor when we have not given you fair notice that we are adopting such a policy WE WILL NOT in any like or related manner re strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL rescind the $500 fine levied against Leland H Johnson, Jr resulting from the charges filed against him 14 September 1984, and WE WILL rescind his suspension from membership resulting from the same charges WE WILL refund to Leland H Johnson, Jr, with interest, the $50 appeal bond or deposit he made as a prerequisite for filing his appeal from the disci pline imposed on him pursuant to the charges filed against him on 14 September 1984 WE WILL remove from our files all references to the unlawful charges and proceedings against Leland H Johnson Jr and WE WILL notify him in writing that this has been done and that evidence of this unlawful action shall not be used as a basis for future actions against him MILLWRIGHT AND MACHINERY ERECTORS, LOCAL UNION 720 UNITED BROTHERHOOD OF CARPEN TERS AND JOINERS OF AMERICA Clement J Kennington Esq of New Orleans Louisiana for the General Counsel Jerry L Gardner Jr Esq (Gardner Robein & Healey) Metairie Louisiana for the Respondent 61 other members any money with interest which they paid either to appeal from or to satisfy the discipline im posed This case was tried before me in Baton Rouge Louisi ana on January 9 and 11 1985 pursuant to the Novem ber 28 1984 complaint issued by the General Counsel of the National Labor Relations Board through the Region al Director for Region 15 of the Board The complaint is based on a charge filed October 17 1984 by Leland H Johnson Jr an individual against Millwright and Ma chmery Erectors Local Union 720 United Brotherhood of Carpenters and Joiners of America (Respondent Union or Local 720) 1 In the complaint the General Counsel alleges that the Respondent violated Section 8(b)(1)(A) of the Act on and after September 10 1984 by several actions First by threatening to file an internal union charge against Johnson by filing and processing such a charge by trying Johnson on the charge and by fining him $500 This allegedly was done in order to retaliate against Johnson because he has opposed the assertedly unlawful manner in which Joe Wade Bennett Local 720 s business representative has operated the Union s exclusive hiring hall and for Johnson s filing as one of several plaintiffs a lawsuit against the Union regarding the operation of the hiring hall Local 720 also it is alleged engaged in this conduct to punish Johnson for testifying as a witness for the General Counsel in an NLRB proceeding against Local 720 regarding Respondents exclusive hiring hall Finally the General Counsel argues Respondent sought to penalize Johnson for running against Bennett for the office of business representative of Local 720 and to neutralize Johnson as a future political opponent By its answer Respondent admits certain factual mat ters but denies violating the Act On the entire record including my observation of the demeanor of the witnesses and after due consideration of the briefs filed by the General Counsel and the Respond ent I make the following DECISION STATEMENT OF THE CASE RICHARD J LINTON Administrative Law Judge When Millwright Local 720 fined Leland H Johnson $500 and suspended him from membership was the disci pline a protected internal union matter or was it a pro hibited restraint of Johnson s access to job opportunities? Seeking to aid signatory contractors facing stiff compete tion from open shop contractors employing at lower wage rates employees who are union members Local 720 threatened to file and did file internal union charges against its members who declined job referrals to union contractors when such members were registered on the out of work list while currently working for nonunion contractors Not reaching the question of whether Re spondent Local 720 s new policy is unlawful per se I find that the Union violated Section 8(b)(1)(A) of the Act by its conduct and I order the Respondent to re scrod the fines suspensions or other penalties it imposed on its members Local 720 must refund to Johnson and FINDINGS OF FACT I JURISDICTION UMC of Louisiana Inc (UMC) is a Louisiana corpo ration engaged as a general contractor in industrial main tenance and construction at various locations in the State of Louisiana including a location at Wyandotte Chemi cal Plant Geismar Louisiana During the past 12 months UMC purchased and received goods and maten als valued in excess of $50 000 These goods and maten als were shipped directly to UMC s Louisiana jobsites from points located outside the State of Louisiana I find that UMC is an employer within the meaning of Section 2(2) (6) and (7) of the Act II LABOR ORGANIZATION INVOLVED Respondent admits and I find that it is a labor organs zation within the meaning of Section 2(5) of the Act ' Al] dates are for 1984 unless otherwise indicated 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III THE ALLEGED UNFAIR LABOR PRACTICES A Introduction By date of September 14 1984 Business Representa tive Bennett filed the following charges against Johnson (G C Exh 4b) To The Officers and Members of Millwright Local #720 Baton Rouge La Dear Brothers and Sisters I Joe W Bennett Business Representative of Mill wright Local #720 iii Baton Rouge La do hereby prefer charges against Leland H Johnson Jr for violating the General Constitution and Laws on or about September 11 1984 The violations for which he is charged are underlined in the para graphs below General Constitution and Laws Section 55 Paragraph A Article (1)-Causing dissension among the mein bers of the United, Brotherhood Article (13)-Violating the Obligation. On or about September 11 1984 Brother Johnson was working with his tools in Wyandotte Chemical for UMC a non union company This company does not have an agreement with this Local Union On or about September 11 1984 Brother Johnson was offered employment by me the Business Repre sentative for International Maintenance Corpora tion at Wyandotte Chemical Brother Johnson main tained that he would rather work non union than to work union with a union contractor r e Fraternally yours /s/ Joe W Bennett Joe W Bennett Business Representative and Financial Secretary Millwright Local #720 After being notified of Bennett s charges Johnson on October 17 filed his NLRB charge The internal union trial was conducted on October 24 and November 1 (Tr 1 152) 2 By letter dated November 19 the trial commit tee s chairman notified Johnson that he had been found not guilty of the dissension charge but guilty of violat ing the obligation (R Exh 10) At the December 13 membership meeting with Johnson in attendance Ben nett moved that Johnson be fined $500 and his member ship book suspended (Tr 1 111) The motion carried by a vote of 70 to 7 (G C Exh 8) In the instant hearing Johnson testified that he had paid the required $50 appeal bond 3 that he was preparing his appeal and that 7 References to the two-volume transcript of testimony are by volume and page I Bennett confirmed that the $50 had been paid (Tr 2 345) the penalty imposed (fine and suspension ) had not been implemented (Tr 1 153) The Obligation which Johnson was found guilty of violating4 is in the nature of a promise of allegiance to the Union which an individual signs when applying for membership in Local 720 3 The Obligation reads (G C Exh 10) OBLIGATION I do of my own free will solemnly and sincerely promise-on my sacred honor-that I will never reveal-by word or deed-any of the business of this United Brotherhood-unless legally authorized to do so I promise to abide by the Constitution and Laws-and the will of the malonty-observe the By Laws and Trade Rules-established by Local Unions and Councils-affiliated with the United Brotherhood-and that I will use every honorable means-to procure employment for brother (sister) members I agree that I will ask for the Union Label-and purchase union made goods-and employ only union labor-when same can be had And I further agree that-if at any time it should be discovered-that I have made any misstatements- as to my qualifications for membership-I shall be forever debarred from membership-and donations in this order I pledge myself to be obedient to au thonty-orderly in the meetings-respectful in words and actions-and charitable in judgment of my brother (sister) members To all of this I prom ise and pledge-my most sacred word and honor- to observe and keep-and the same to bind me-as long as I remain a member of this Brotherhood And I further affirm and declare-that I am not now affiliated with-and never will join or give aid-comfort-or support to any Revolutionary Or ganization-or to any organization that tries to dis rupt-or cause dissension in any Local Union-Dis trict Council-State or Provincial Council or the International Body-of the United Brotherhood of Carpenters and Joiners of America B Background The pleadings establish that Respondent operates a hiring hall utilizing an exclusive referral system for the employment of millwrights with various employers in the greater Baton Rouge Louisiana area The instant case is not the first one involving allegations that Bust ness Manager Bennett unlawfully manipulated the hiring hall rules Such allegations were made by members Marion C Wallace, David L Lewis and Fleet H Wal 4 As indicated in Bennett s charge sec 55-A of the Internationals constitution classifies certain conduct as offenses and provides that mein bets who are charged tried and found guilty of any of the offenses may be fined suspended or expelled (G C Exh 2a at 59) The first enumer ated offense is causing dissension and the 13 and last , item is Violating the Obligation b Although no copy of Johnson s signed application with the oblige tion was introduced in evidence Johnson makes no contention that he is not bound by the obligation Indeed be testified that he has been a member in good standing of Local 720 for about 19 years (Tr 1 161) CARPENI ERS LOCAL 720 (UMC OF LOUISIANA) lace Jr in charges they filed in January and February 1984 Complaints issued on the charges came on for hearing in May 1984 before Administrative Law Judge William A Gershuny whose decision issued July 13 Ex ceptions were taken to Judge Gershuny s decision On March 29 1985 the Board issued its decision in the case Carpenters Local 720 (Stone & Webster) 274 NLRB 1506 (1985) The Board reversed Judge Gershuny on a limita tions issue but it did not disturb his other findings which are relevant here Although Judge Gershuny found that Local 720 through Bennett s informal modification of the hiring hall rules had violated the Act by disregarding existing hiring hall procedures he dismissed all but one allegation that Bennett s actions were motivated by unlawful con siderations Indeed Judge Gershuny found that Bennett s problems resulted from attempts to relax or avoid the rules in order to assist members One example of this was Bennett s achieving through informal negotiations with a contractor an agreement that the contractor would limit his requests by name to no more than 50 percent of those hired Although Bennett as found thereby violated the statute Judge Gershuny also found (at 1511) that Ben nett acted solely in an honest and sincere effort to spread scarce work more evenly among the unemployed millwrights sitting on the bench at the hiring hall The allegations litigated before Judge Gershuny appar ently are related to a lawsuit the Charging Party here Leland Johnson and others filed against Local 720 and Bennett in the local United States District Court 6 The parties stipulated here that the lawsuit was filed Novem ber 1 1983 and that it is still pending (Tr 1 51-52 2 355) Judge Gershuny s description of Local 720 s referral procedures is succinct and also reflects the evidence before me (Id at 1508) Local 720 s job referral procedures (G C Exh 5) drafted with the assistance of the International Union and adopted by a vote of the membership went into effect in December 1982 It provides for the maintenance of two lists a Master List and a Day List The Master List assigns to each register ing member a sequential number which is retained until such time as that member is referred to a job which last 5 or more days at that time the member must re register and obtain a new-and higher- number The Daily List used for job referrals is signed daily at the union hall between 7 30 a in and 8 30 a m by members interested in job referrals that day and reflects the member s name and Master List number Jobs are offered to members on the Daily List beginning with the lowest Master List number Because the Daily List is signed by members as they arrive at the hall the Master List numbers ap pearing on the sign in sheet are not in sequence Accordingly Business Agent Bennett who normal 6 Judge Gershuny suggests that the others were or included the other charging parties in the case before him in Stone & Webster at 1509 fn 3 However Bennett identified three different members Dale Clayton Lonnie Clayton and Ralph Gilchrist as being the others (Tr 2 354) 63 ly administers the system first must unscramble the numbers and place them in chronological order low number first As each job is called out Bennett identifies the employer the job site and whatever information he has obtained from the contractor as to the length of the job Often as reflected by the record information as to length of the job is quite vague Jobs are offered to members beginning with the lowest Master List number appearing on the Daily List If a member accepts the job he is given a referral slip and leaves immediately for the job If a job is turned down it is offered to the next eligi ble member Members with low numbers and a his tory of unemployment frequently will turn down short jobs (i e 1-2 weeks) because they would have to re register on the Master List at the completion of that short job losing their low number and the opportunity for a longer job which might be or dered thereafter The referral procedures are posted in the hall and contain a procedure for the filing of written com plaints within 24 hours of any alleged discrimination in the operation of the procedures In practice as the findings below reflect mistakes frequently are called to the attention of Bennett at or shortly after the time they are made and are rectified by him im mediately Under the labor agreements applicable to this case Local 720 s referral system is a contractor s exclusive method of hiring except that a contractor may make a name request for any qualified mill wnght who has performed maintenance work or worked for a maintenance contracto' within the preceding six months Although millwrights can sign the daily (weekly) out of work list on any day of the week from 7 30 to 8 30 a m more sign the out of work list on Monday than on any other day of the week (Tr 1 57) In order to be re ferred on a Monday millwrights must be present in the hall when Bennett calls out the jobs At 8 30 a m Bennett (presumably his staff may assist) picks up the list and prepares a separate one (the un scrambling process) beginning with he lowest number and ending with the highest number 7 Bennett then calls out the jobs and makes referrals until 10 am When a millwright declines a job as he has the right to do Ben nett writes T D for turned down in the remarks column (Tr 1 131-132) Bennett frequently adds a word or two in the remarks column identifying the job which was accepted or rejected (G C Exh 12) On Tuesday through Friday mornings from 8 30 to 10 am, mill wrights who have signed the out of work list on that Monday do not have to be at the hall for Bennett goes down the list by telephoning them (Tr 157-61) Of course if millwnghts are at the hall in person they can make their presence known 7 The list has five columns position number on that separate list name master list number (the number which determines his ranking on the out of work list) telephone number and a column for remarks (G C Exh 12) 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD One aspect of the referral rules made clear in the in stant case is that members (or job applicants whether members or nonmembers) have turndown rights That is they do not lose their place on the register (are not moved to the bottom) when they decline a job offered to them as Business Manager Bennett reaches their names on the list (Tr 1 61-62) It has been Respondents practice (it is not covered in the written rules) to permit its members to work for non union contractors 8 Bennett acknowledged this although it is clear that he considers it more in the nature of a fact of life rather than something formally approved by the Union (Tr 1 64-66) The record reflects that many mem bers are critical of those members who work for non union contractors It is clear that Respondents past acquiescence in the practice is a reflection of the depressed job market in the Baton Rouge area 9 Business Manager Bennett testified that Local 720 has about 900 members Of these around 125 are retired In the August September 1984 period Local 720 had some 350-400 of its active members on the bench that is unemployed (Tr 1 81 86) Bennett testified that this condition has prevailed since about mid 1983 (Tr 1 87) According to Bennett his signatory contractors (those who are parties to a contractual agree ment with Local 720) do not complain that Local 720 is unable to refer qualified millwrights Rather their com plaint is that union members are working for the open shop contractors (competitors of the signatory contrac tors) at a lower wage rate than the signatory contractors must pay and that this circumstance is applymg a severe economic squeeze to the signatory contractors (Tr 1 81) That brings us to consider how this case arose Joseph A Clebert is employed by the Baton Rouge Building and Construction Trades Council (Council) an organza tion composed of several affiliated craft unions in the area and whose purpose is to coordinate contracts and work for the various crafts (Tr 2 299-300) Clebert cre dibly testified that over the last several years the open shop movement has experienced considerable growth in the area with the latest figures showing that nonunion contractors have taken over about 70 percent of the work (Tr 2 303) 10 The irony is that many of the work ers employed by the nonunion contractors are actually members of unions either locally or from outside Louisi ana (Tr 2 303-304) Both Clebert (Tr 2 304) and Bennett (Tr 1 81) began to complain about the members of the Baton Rouge unions going to work for nonunion competitors of the signatory contractors The signatory contractors com plained that these union members by working at $2 to $6 an hour less than the signatory contractors were re quired to pay were supporting the competition and dnv mg the union contractors out of business (Tr 2 304 306) i i The date that the complaining began is unclear but Bennett testified that it became the heaviest at some point in 1984 with Billy Guitreau president of Interna tional Maintenance Corporation (IMC) complaining the most (Tr 1 82-84 2 347) 12 From Clebert s testimony it appears that the conversa tions with the contractors on this topic became regular by July 1984 (Tr 2 305) Clebert identified a copy of the minutes of the August 9 meeting between the Council and IMC (R Exh 38) The first topic discussed was union members working for the nonunion contractors The two paragraphs from the minutes devoted to this topic read Mr Guitreau discussed the need for lower wages in order to be more competitive and the fact that our Union people were out there supporting the non union Contractors Billy complained it was not just one craft but most of the top Crafts that were guilty Joe i 3 responded that we were trying to stop this sort of thing and that the picket line at Exxon had addressed this problem some Other discussions con cermng problems facing the Building Trades and Union Contractors were discussed According to Bennett at the August 24 regular mem bership meeting of Local 720 he informed the members that the Council members had discussed the subject of union members working nonunion and that the crafts had discussed the need to curtail members of the unions working for nonumon contractors 14 Bennett assertedly also told the August 24 membership group 15 that the only way he knew of addressing the problem was to file charges against those who sign the out -of work list (o w 1) and decline a job offer while employed for a nonunion contractor (Tr 1 73-74 88) Jerry L Sibley president of Local 720 and member Glynn King testified in support of Bennett s version Bennett concedes that the minutes of the August 24 membership meeting do not reflect that any mention or motion was made concerning this topic (Tr 1 74 88-89) 8 A clause in the International Union s constitution is ambiguous It provides in sec 25 A that Local Unions cannot debar their members from working for contractors or for employers who are not connected with the Employers or Builders Association Does this refer to non union contractors or to those who are signatory but who are not mem bets of a contractors association? The evidence on this is not very help- ful although Bennett s interpretation is that it refers to union contractors who are not members of a contractors association (Tr 146 2 336) 8 As we shall see the poor job market is largely a reflection of the dwindling percentage of available jobs going to the umons with a corre- sponding increase in the percentage of nonunion jobs 10 Bennett testified that at the Dow Chemical plant the contractors were 98 percent union in years past, but now the union jobs are down to 30 percent whereas the nonunion jobs have grown to 70 percent of the total (Tr 1366) 11 Johnson s nonunion job paid S2 an hour less than union scale 12 Bennett testified that only 28 members of Local 720 are employed in construction and that the balance of the members who are working some 350 are employed on maintenance jobs, and IMC employs about 43 percent, or more of the 350 (Tr 2 337 348) Construction scale is over S4 an hour greater than the maintenance rate (Tr 169) to Joseph A Clebert, apparently since it was Joe who also opened the meeting and who represented the Council 14 Bennett placed this Council meeting as occurring in August (Tr 1 87) No copy of any minutes of the meeting was introduced and Ben nett testified that he did not know whether minutes were made (Tr 188) This meeting of the Council is not the August 9 meeting between the Council and IMC 15 There are 26 names, including Bennett s, on the attendance roster (G C Exh 14) T CARPENTERS LOCAL 720 (UMC OF LOUISIANA) Members William E Bedwell Fleet H Wallace Jr and Ida Martinez testified either that Bennett made no such announcement that they heard no such announce ment or that Bennett s first announcement on the topic came after charges already had been filed against John son The evidence does not favor Bennett s version One would expect some kind of documentation on a matter involving a major policy change yet it is not even men boned in the August 24 minutes And if the Council con sidered the general problem to be so serious as to discuss the need for action one would think even assuming there were no minutes of that August meeting of the Council that Clebert would have been asked to testify about the Council meeting to corroborate Bennett s ver sion He was not Finally I credit the General Counsel s witnesses over Respondents on this point Accordingly I find that no mention was made on this subject until after Bennett filed the internal union charges against Johnson (which eventually resulted in Johnson s filing the charge in the instant case) 16 To recapitulate Local 720 s new policy is aimed only at those members who have signed the o w I yet decline a job referral to a signatory contractor because they refuse to give up the jobs they hold with nonunion con tractors The threat of the probable discipline inherent in the Union s new policy is effective in one respect For example when member Fleet H Wallace learned that Bennett had filed charges against Johnson Wallace who is working for a nonunion contractor immediately re moved his name from the o w I (Tr 1 236) Johnson was only the first to be charged under the new policy Bennett charged three others in subsequent weeks (Tr 1 90) They are Johnny W King and James Baker charged September 25 17 and Don R Avants charged October 25 18 Bennett testified without contra diction that all three are personal friends of his (Tr 2 360) and that Avants was his best friend (Tr 2 367) King and Baker were tried and convicted in December These two were scheduled to appear before the member ship on February 14 1985 at which time the members would vote on the penalty to be imposed (Tr 2 361 R Exhs 20 28) Avants was scheduled to be tried on Janu ary 21 1985 or 10 days after the close of the hearing in this case (R Exh 33) Johnson is a political opponent of Bennett Along with two others plus Bennett Johnson was a candidate for Bennett s position in the June 1982 election Bennett was reelected for a 3 year term He received 500 votes while Johnson received 27 Earl Watts garnered 140 votes the second highest total and Ralph Gilchrist pulled 7 votes (Tr 1 50 142 180-181 2 334) Nominations were opened 30 days before the June 1985 election (Tr 1 154) John son testified that if he is on suspension he cannot run for union office (Tr 1 155) Although the International s constitution so provides in section 31-E (G C Exh 2a at 16 Johnson testified that Bennett informed the membership at a union meeting on September 14 1984-the date the charges were filed against him (Tr 1 177) I therefore find that date to be Bennett s first general notice to the membership 17 Tr 1 112-114 2 360- R Exhs 15-28 18 Tr 2 360 361 R Exhs 29-33 65 32) it also provides that penalties imposed including sus pension shall not be effective or enforced while any appeal is pending section 57-A (id at 66) It is undis puted that Johnson filed an appeal and that it was pend mg as of the time of the instant hearing At the same time the General Counsel may be correct in arguing that Johnson s prospects as a candidate for union office are diminished by having been found guilty (even if his appeal is later successful) of violating the sacred Obli gation (Br at 14) C Factors Bearing on Bennett s Motivation 1 Introduction The events giving rise to Bennett s charges against Johnson and Johnson s NLRB charge against Local 720 occurred the week of Monday September 10 1984 Johnson s number was 198 from the master list and when he signed the o w I on Monday September 10 he wrote that number by his signature (Tr 1 143 G C Exh 9) Bennett presumably reordered the o w 1 s names by their numbers on his own working list 19 Johnson testi feed that there were no referrals that day so he returned on Tuesday September 11 The o w 1 reflects that nine millwrights signed on Sep tember 11 For some reason two of the nine signed even though they had signed on September 10 At 8 30 a m Bennett prepared his working list, combining both Monday and Tuesday into a single reordered list (Tr 1 59 2 340) Johnson s name is listed in 24th position on the three page list (G C Exh 12) 20 Two questions are presented concerning the events of September 11 The General Counsel contends that Ben nett called Johnson an obscenity when Johnson declined a job offer This bears on the issue of animus Second, did Bennett bypass others on the list in order to offer a short term job to Johnson on the assumption that John son would decline and Bennett contrary to the estab lished practice could file internal union charges against him in retaliation for Johnson s protected activities? It should be observed that Johnson had been working about 2 months for UMC a nonunion contractor at the Wyandotte Chemical Company s plant in Geismar Lou isiana (Tr 1 148-149 158 166) Johnson testified that he had been working for UMC because he could not get adequate referrals (to jobs lasting several weeks or months) from the Union (Tr 1 149-151) His wage rate at UMC was $11 75 an hour (1 164) Johnson was off work from UMC on September 10 and 11 and not scheduled to return to work there until Wednesday evening at 7 p m September 12 (Tr 1 162- 164) He signed the o w I on September 10 in the hope of getting referred to a union job of substantial duration 19 By count there are 59 signatures on the weekly o-w 1 for Septem bet 10 1984 (G C Exh 9) so The list is somewhat confusing in that about halfway Bennett began a third page on which he repeated some names However Johnson s name appears on the first page and no issue is presented concerning the second and third pages About 60 to 70 names are on Bennett s three page working list (G C Exh 12) 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such as 3 to 4 months (Tr 1 168) The union scale for maintenance work was $13 87 an hour Bennett testified that on September 11 he was well aware that Johnson was working for nonunion UMC at the Wyandotte Chemical Plant (Tr 1 70 91) IMC a sig natory contractor with Local 720 employs some 25-30 members of Local 720 at the same plant (Tr 1 91) Non union UMC and signatory IMC are competitors for the work at that plant (Tr 2 362) Several of the Union s members who worked for IMC at Wyandotte s plant had informed Bennett that Johnson was working there for UMC (Tr 1 94 96) Based on these reports Bennett was of the opinion that Johnson was working at UMC (Tr 1 117) In fact Bennett testified the whole membership knew Johnson was working at UMC (Tr 2 374) John son s name it seems is mentioned around the hall with some regularity (Tr 2 341) On September 11 as we have seen Bennett reordered the names from the o w 1 into his working list There is a dispute concerning the process Bennett followed in reaching Johnson s name that morning but there is no dispute that when he did reach it he offered Johnson (who was at the hall that morning) a job for 2 weeks with IMC at Wyandotte Chemicals plant-the same plant location where Johnson was working for nonunion UMC (Tr 1 166) It also is undisputed that Johnson de clined to take the referral There is a sharp dispute con cerning some of Bennett s remarks which followed 2 Bennett s obscenity When Bennett offered Johnson the referral for a 2 week job at Wyandotte Chemical Johnson declined There is a minor dispute concerning whether Johnson in quired if Bennett could guarantee more work than John son s current job entailed as Bennett claims (Tr 1 116 2 341) or whether Johnson as he testified simply said he would keep what he had (Tr 1 146) As there is no dispute that Johnso-i did decline the exact word ex change is immaterial There were several members standing in Johnson s personal office and at the door to his office 2 1 It is clear that the witnesses who testified on this conversation (and specifically as to Bennett s alleged obscenity) were in a position where they could hear what was said Testifying in support of Johnson s version that Bennett called him an obscenity were members Wayne Gilchrist and Wil Liam E Bedwell Respondent called only member Leon and W Smokey Hom in support of Bennett s version The General Counsels witnesses testified that when Johnson declined the referral Bennett remarked perhaps more to the other members than to Johnson Looks like the motherfucker would rather work a rat job than a union job (Tr 1 146-147 186 204) It is true that when Gilchrist and Bedwell testified about this at the internal union trial they did not include the obscenity However, as Gilchrist and Bedwell testified there were women in the audience there and the witnesses understood the question there as asking only what happened rather than being asked to report word for word of what was said 21 Johnson described the personal office as being about 14 by 14 feet in size (Tr 1 148) In any event their demeanor before me was favorable and I credit them as well as Johnson Although Bennett denies the obscenity allegation (Tr 1 138 139 2 369) he admits that Johnson s declining union work in favor of a nonunion job upset him a little and he possibly used the rat job phrase (Tr 2 368- 369) He further concedes that he possibly or probably commented to the other members in his office (Tr 1 138-139) These concessions tend to support Johnson s version In giving his description of the event member Horn ends the conversation at the point Johnson declined the referral (Tr 2 315) Respondent did not ask him whether the attributed statement was made by Bennett Assuming that Horn s version is an implicit denial of the obscenity remark I nevertheless do not credit Horn for he was unpersuasive Accordingly I find that the version given by the Gen eral Counsels witnesses is the correct one There is no dispute that following his obscenity remark Bennett told Johnson that he had no choice but to file charges against Johnson Member Johnson told Bennett to go ahead and that he would take his own action What conclusion is to be drawn fiom the fact of Ben nett s obscenity? The General Counsel argues that it demonstrates animus against Johnson because of the lat ter s protected activities An inference to that effect could be drawn if the balance of the General Counsels evidence such as disparity or bypassing others on the o w 1 to reach Johnson is credited Another inference which can be drawn is that John son s expression of displeasure rather than disclosing the animus seen by the General Counsel reflected Bennett s disgust that a 19 year member would hurt the union movement by aiding the open shop competitor of a sig natory contractor IMC who was being hurt by the competition of UMC and its lower wage rates Indeed Bennett testified that he considered Johnson s conduct to be a violation of the Obligation Because Bennett viewed Johnson s action as being detrimental to the Union and similar to an American giving confidential information to Russia (Tr 1 70) Bennett considered Johnson s conduct as treason against the Union (Tr 1 93 97) In Bennett s opinion Johnson violated the entire Obli gation rather than any one part (Tr 1 76) Bennett ex trapolates from several clauses the idea or spirit that a member should take union employment whenever possi ble (Tr 1 76-77) In short the Obligation means if he is working for a nonunion contractor he is supposed to take union work if he can get it (Tr 177 ) Bennett concedes he has no document from the International in terpreting the obligation (Tr 1 77) I find that his inter pretation as to this aspect is not inconsistent with the intent expressed by the language of the Obligation Bennett also is of the opinion that Johnson s conduct gives aid and comfort to any organization which in the language of the obligation tries to disrupt the Union or cause dissension in any part of the Union from Local 720 to the International This follows, he explained, be cause nonunion contractors who refuse to sign a contract are out to disrupt you (Tr 179 ) According to Ben CARPENTERS LOCAL 720 (UMC OF LOUISIANA) nett the nonunion contractors are tantamount to the rev olutionary organizations condemned by the Obligation Whether the International would agree that the specif is clause referring to an organization can be interpreted as Bennett does may be debatable The issue here is whether Bennett s overall interpretation of the obligation was formed from a good faith effort to combat the sen ous competition problem facing signatory contractors or whether his interpretation is simply a mask to cover a desire to retaliate against Johnson because of the latter s protected activities At this preliminary point I merely note that Bennett s interpretations are not inherently un reasonable 3 Did Bennett bypass others? On the morning of September 11 did Bennett bypass others in order to reach Johnson? If so did he do it with the expectation that Johnson would turn down a 2 week job and Bennett then could file internal union charges against him to punish him for his protected activities? The General Counsel contends that the answer to both questions is yes (Br 9 10) Bennett had two job referrals to Wyandotte Chemical the morning of Tuesday September 11 (Tr 1 116 2 339- 340) The referrals were accepted by Ed Talbot and David Nevels (Tr 1 124 2 342-343) With number 170 from the master list Talbot was in 17th position on Ben nett s reordered work list Johnson having number 198 was in the 24th position and Nevels with number 200 was right under Johnson at the 25th position (G C Exh 12) Bennett was called to the stand three times in this case twice during the General Counsels case and once during the Respondents Each time he was asked about the procedure he followed the morning of September 11 in reaching Johnson s name Although the thrust of Ben nett s testimony is that he began at the top of the list and worked down (by telephoning those not in the hall and personal contact with those present) to Johnson with ev eryone above Johnson either rejecting or (in Talbot s case) accepting 22 the evidence is frequently disjointed and marked by inconsistencies and poor recollection The General Counsel argues that these deficiencies dem onstrate Bennett s unlawful motive I disagree because this overlooks the nature of Bennett s worklist the cir cumstances in which he prepared it and the passage of time Bennett credibly testified that his failure to make some notations on this list such as on telephone calls mclud ing long distance calls does not mean he did not make the calls which he described making because in making the calls he sometimes does not make the appropriate no tations (Tr 1 134) This is so because of all the distrac tions from members in his office and incoming telephone calls (Tr 2 340) For example the first name on the reordered list is that of Jerry Riddle bearing master list number 58 There is no T D in the remarks column for the Wyandotte Chemical job even though Bennett testified that Riddle whom he telephoned long distance (Tr 2 377) rejected 22 Tr I 115 116 121 245 2 341 67 the Wyandotte Chemical job (Tr 1 135 2 379) There is an entry there for Riddle accepting a different job but Bennett testified that was made later in the week when Riddle accepted a new job which became available (Tr 1 130) Yet when recalled by the General Counsel Ben nett conceded that at the union trial on November 1 he had testified that the first person he called that morning was Shelly Parker and the second person was Jack Data (Tr 1 247) Parker with master list number 79 is in fourth position on Bennett s reordered working list and Datz with number 98 is in sixth position (G C Exh 12) To have called Parker first would mean that Bennett skipped over three others Jerry Riddle, Glynn Cole man,23 and Keith Rice Even if Bennett did skip over them to call Parker first it is unclear how that tends to show an attempt to discriminate against Johnson The General Counsel asserts that Bennett s testimony is contradictory regarding member William E Bedwell who with number 120 was in eighth place on Bennett s work list Bennett initially testified that on September 11 he did not offer Bedwell the job because Bedwell previ ously had told Bennett not to call him on short jobs and for Bennett simply to mark him as a turndown on jobs of less than a month (Tr 1 124-125 126) Bennett clarified that to say that he called and received no answer and then marked Bedwell as a turndown (Tr 1 124-125 2 345) It is quite likely there was no answer because Bedwell was at the hall and testified in this case about the conversation that morning between Bennett and Johnson (Tr 1 201-204) As just another aspect of the in complete nature of Bennett s work list it is unclear whether the T D shown on the list for Bedwell ap plies to the IMC job or to another job described as Cajun No 2 It is unclear why Bennett telephoned Bedwell at all since the job was for only 2 weeks Bennett could have offered the job to Bedwell in person since Bedwell was at the hall that morning However Bedwell had stepped outside the office as had Johnson and some others and came into the hall only when Bennett called Johnson inside Bedwell initially denied ever telling Bennett that he did not want to work on any short jobs lasting less than a month In the same breath however he disclosed that he had turned down several jobs lasting only a week or two because he would lose his place on the o w I (Tr 1 206) On cross examination he conceded he has told Bennett that he did not want a job of only 2 to 4 weeks (Tr 1 220-221) Indeed Bedwell testified that had Ben nett offered him this 2 week job he probably would have turned it down (Tr 1 226) Although Bennett s testimony is rather disjointed re gardmg Bedwell s situation as on this entire topic the evidence does, not show any intent to discriminate against Johnson I find that the disjointed and at times, inconsistent and contradictory statements by Bennett are the product of a busy office in which Bennett had the distractions of people conversing next to him his tele 23 The spelling given here is based on Coleman s signature on the o-w I for September 11 1984 (G C Exh 9) rather than on Bennett s rendition on his work list (G C Exh 12) 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD phone ringing his attempting to reach members by tele phone 24 and a failure in the midst of these distractions to record all the data that we would like to have seen in a hearing 4 months later It should be observed that Ben nett went through this procedure every workday It is not surprising that he was unable to recall the details of the calls he placed on September 11 In light of the foregoing I find that the General Coun sel has failed to demonstrate that Bennett bypassed any material number of names on September 11 or that any bypassing which did occur was for the purpose of dis criminating against Johnson 4 The question of disparity Earlier I quoted the charges Bennett filed against Johnson and I have treated the issues of Bennett s ob scemty and his alleged bypassing To this point I have not found that Bennett was unlawfully motivated There remains one other issue which the General Counsel relies on in contending that Bennett was illegally motivated This is the question of disparity That is did Bennett single out Johnson and apply the rule to him and not to others similarly situated There is no dispute concerning the past practice and although I covered the points before they bear repeating here First a member of Local 720 or any user of the hiring hall has turndown rights That is he may reject a job referral without losing his place on the o w 1 Second Local 720 in the past has condoned its members working for nonunion employers (that is those employers who do not hold a contractual relationship directly or through the International with Local 720) Third the published rules of the hiring hall do not prohibit a user from exer cising his turndown right even though (1) he has signed the o w 1 and (2) he currently is working for a nonunion contractor Fourth there is no provision of Local 720 s bylaws (R Exh 4) the International s constitution (G C Exh 2a) Respondent s referral procedures (G C Exh 3) or the Obligation (G C Exh 10) explicitly prohibit ing a member of Local 720 from exercising his turndown right while contemporaneously (1) registered on the o w 1 and (2) working for a nonunion contractor Indeed one ambiguous clause appearing in section 25-A of the International s constitution can be interpreted as prohibit ing local unions from debarring their members from working for nonunion contractors As previously discussed Bennett testified that nothing in the referral rules prevents a Local 720 member from charging another member with violating the Obligation by working nonunion but rejecting a job referral while on the o w l (Tr 1 68 118) There is generalized language in the obligation from which a member of Local 720 could fashion an argument that a member dishonors the obligation by rejecting a re ferral to a signatory contractor when the member is both signed to the o w I and also currently working nonunion Earlier I reported that Bennett interpreted these 24 Member Leonard W Smokey Horn called as a witness by Re spondent credibly testified that Bennett did make calls that morning al though Horn did not actually look at the list Bennett was using (Tr 2 316-318) clauses 25 and the spirit of the obligation as a whole as justifying his charges against Johnson Bennett s interpre tation is not inherently unreasonable Thus Bennett could have made his interpretation in good faith That leaves the issue of disparity to be addressed in order to determine whether Bennett in fact acted in good faith in filing his charges Respondent contends Bennett informed those in at tendance at the union meeting of August 24 that the only way to prevent members from working union while both signed on the o w 1 and rejecting job referrals would be to file charges against them I have rejected that conten tion and found that Bennett s first general notice to the membership was not until the union meeting of Septem ber 24 From this and other evidence the General Coun sel argues that Bennett singled out Johnson for disci pline (Br at 18) Bennett concedes that at no point between the August 24 membership meeting and the September 11 confronta tion with Johnson did he make any effort to compile a list of members on the o w 1 who were working non union (Tr 1 81 90 2 398-399) He testified that he learns of the names by word of mouth that he does not ask for names and that he still does not have a complete list of all members working nonunion (Tr 1 81 90 2 373 376) On the other hand after charging Johnson 26 Bennett began recording on a tablet the names of those who others told him are working nonunion As of his testi mony before me Bennett asserted that there were eight or nine names listed on his tablet and that they would be ripe to be charged if they while registered on the o w I decline a job referral (Tr 2 374-376) It is clear that while Johnson was the first one charged he was not the last And if it might be said that Johnson is at one end of the animus spectrum (political opponent and adversary in litigation) of those charged then it must be acknowledged that the other three are at the other end Indeed not only are the other three Ben nett s personal friends (Tr 2 360) but one Don Avants was Bennett s best friend (Tr 2 367) There is no doubt the Union s position would appear more credible if Bennett had announced his intentions clearly and publicly even if he had not memorialized them by a written record Others might have moved more aggressively in compiling such a list rather than passively waiting for members to mention names to Ben nett as a casual aside when they are visiting the union hall This lack of efficiency is certainly a negative factor for it suggests that Bennett was not at all concerned about the complaints of the signatory contractors How ever ascertaining motivation does not turn on whether Local 720 is efficient either in documenting its intentions or in identifying those members who are working non union 25 Particularly those ca, mg for procuring employment for other mein hers employing only union labor when same can be had and not giving aid comfort or support to any organization which tries to disrupt the Union 29 Bennett testified that at the time he charged him Johnson was the only member he knew of who was signed on the o w I working non union and who was rejecting a job referral (Tr 1 120 2 364) CARPENTERS LOCAL 720 (UMC OF LOUISIANA) The fact remains that Bennett subsequently charged his personal friends including his best friend Two of them King and Baker were charged before Johnson filed his NLRB charge Had Johnson been the only one charged the evidence would persuade me to find that Bennett was unlawfully motivated notwithstanding his denials (Tr 1 89 2 345-347 354) Moreover Johnson testified at the hearing that he intends to file charges against others whose names have been reported to him as working nonunion when any rejects a referral (Tr 2 375) Although our record shows that King and Baker were found guilty the hearing in our case occurred before the final outcome of the cases of King Baker and Avants We do not know whether Avants was found guilty or whether Bennett recommended that all three be fined $500 and that their membership books be suspended Nevertheless Bernett did file charges against them and two had been found guilty with Avants yet to be tried Because Bennett has acted consistently respecting other members including charging his best friend I find that he was not unlawfully motivated when he charged Johnson D Analysis and Conclusions Although I have found that Business Representative Bennett was not unlawfully motivated in filing his Sep tember 14 1984 charges against Johnson that does not end the discussion of liability Respondent argues direct ly or by implication that the new policy of Bennett and Local 720 is not a change in the written referral rules is an internal umon matter and does not unlawfully restrict a member s access to the hiring hall because the member may escape the threat of union discipline by simply re signing his union membership and thereafter use the hiring hall as any other nonmember It is well established that even in the absence of un lawful motivation any departure from established exclu sive hiring hall procedures which results in a denial of employment falls within that class of discrimination which inherently encourages union membership breaches the duty of fair representation owed to all hiring hall users and violates Section 8(b)(1)(A) and (2) unless the Union demonstrates that its interference with employment was pursuant to a valid union security clause or was necessary to the effective performance of its representative function Operating Engineers Local 406 (Ford Bacon & Davis Construction) 262 NLRB 50 51 (1982) The Board has held that a union s duty of fair repre sentation imposes on it the duty not to purposely keep employees uninformed or misinformed concerning mat ters affecting employment Teamsters Local 282 (Transit Mix Concrete Corp) 267 NLRB 1130 1131 (1983) citing Auto Workers Local 417 (Falcon Industries) 245 NLRB 527 (1979) Indeed in Ford Bacon & Davis supra the Board phrased the duty even more affirmatively stating (emphasis added) In addition it is undisputed that Respondent failed to notify those who use its exclusive hiring hall about the June 22 policy change until October 15 69 This failure to give timely notice of a significant change in referral procedures was arbitrary and in breach of its duty to represent job applicants fairly by keeping them informed about matters critical to their employment status Accordingly we find that Respondent further violated Section 8(b)(1)(A) by changing the 5 day referral rule without giving timely notice to all job applicants It is true that a union is free to enforce a properly adopted rule which reflects a legitimate union interest Scofield v NLRB 394 US 423 430 (1969) However the rule must be properly adopted This standard means at the very least fair advance notice The notice Johnson received on September 11 immediately follow mg his rejection of the referral does not satisfy this standard First Johnson already had rejected the refer ral Second as Bennett gave no explanation of the basis of his intent to charge him and did not announce it as a new policy of Local 720 to be applied to everyone Johnson reasonably could conclude that Bennett was acting arbitrarily and from animus against him More over Respondent failed to show that its September 14 1984 announcement of charges against Johnson adequate ly informed all members Applying the foregoing principles I find that Re spondent breached its duty of fair representation when it through Bennett threatened to file and filed charges against Johnson and the other three members This is so because Respondent failed to follow procedures which would assure that its membership was properly apprised of its new policy to file internal union charges against members who decline job referrals while signed on the o w I and working nonunion This brings us to the question of whether Local 720 s new policy-even if Local 720 were to give each of its members advance written notice-reflects a legitimate union interest or whether it frustrates an overriding policy which Congress has imbedded in the labor laws Scofield supra The General Counsel argues that Local 720 s new policy does not reflect a legitimate union interest even though the Union s need to encourage union members not to work for nonunion contractors is itself a lawful concern Rather than addressing this lawful concern the General Counsel argues that Bennett adopted a rule de signed not at dissuading members from working for non union contractors but at preventing members who were working for non union contractors from turning down referrals if they signed the out of work lists (Br at 17 ) In essence the General Counsel is contending that the need of union members to have free access to employ ment opportunities is of overriding importance which Congress has protected by the policies embedded in the Federal labor laws and that Local 720 may not seek to achieve its objective by closing access to job referrals through the device of threatening its members with inter nal union discipline Under this argument any union dis ciphne imposed under the new policy would be unlaw ful even though Local 720 first gave adequate advance notice of its new policy 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The complaint alleges that the discipline was illegal (1) because Bennett was improperly motivated and (2) be cause Local 720 did not gave fair notice to its member ship that it was changing an established although un written part of its referral policy As I have found merit to the second ground and am dismissing the first, I need not resolve the question of whether Respondents new policy is unlawful per se or whether Local 720 s con duct was necessary to its effective representation of em ployees and only incidentally affected members' access to the hiring hall 27 charges against Johnny W King James Baker and Don R Avants and by thereafter processing the charges toward disciplinary action against all four members Local 720 has violated Section 8(b)(1)(A) of the Act 6 Business Representative Bennett was not unlawfully motivated in filing charges against Leland H Johnson Jr on September 14 1984 7 These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY CONCLUSIONS OF LAW I UMC of Louisiana Inc is an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act 2 Millwright Local 720 is a labor organization within the meaning of Section 2(5) of the Act 3 At all material times Respondent Local 720 has op- erated and maintained from its hiring hall an exclusive referral system for the employment of millwrights to various employers in the greater Baton Rouge Louisiana area including the area of Geismar Louisiana 4 Consistent with Local 720 s published referral rules and its past practice the Union has by its practice, con doned its members rejection of job referrals even when such members were registered on the out -of work list and also working for nonunion contractors 5 By telling Leland H Johnson Jr on September 11 1984 that it would file charges against him by deviating from its published referral rules and established past practice described in Conclusion of Law 4 in filing in ternal union charges against Johnson and by informing certain members at a membership meeting on September 14 1984 that it had so charged Johnson, and by filing Yr Local 720's rule is designed to discourage members from eating their cake and keeping it too That is, the policy is aimed at preventing members who are both registered on the outof work list and working nonunion from rcfusing to accept referrals to some union jobs As we know internal union discipline which is otherwise permissible does not become unlawful simply because at may result in a members refusal to accept certain work Scofield v NLRB 394 U S 423 435-436 (1969) Having found that Respondent has engaged in these unfair labor practices I shall order it to cease and to take certain affirmative action designed to effectuate the poli cies of the Act I have found that Respondent acted unlawfully by threatening to file internal union charges against Leland H Johnson Jr by filing charges against him, by process ng such charges trying him on the charges finding him guilty and imposing discipline of a $500 fine and suspen soon of his membership I therefore shall order Respond ent to expunge its records of the charges and internal disciplinary proceedings against Johnson and to refund to Johnson the $50 appeal deposit with interest which he paid as a prerequisite to filing his appeal of the disci plme imposed on him by Local 720 Interest shall be computed n the manner prescribed in Florida Steel Corp 231 NLRB 651 (1977) See generally Isis Plumbing Co 138 NLRB 716 (1962) As the record demonstrates Local 720 also charged (through Business Representative Bennett ) Johnny W King , James Baker and Don R Avants for the same reason and on the same grounds which it did Johnson, and it thereafter processed these charges toward impos Ing discipline Accordingly, I shall order Local 720 to expunge its records of the charges and internal discipli nary proceedings which it has taken against King Baker, and Avants, and against any other member similarly situ ated and to refund to each of them any appeal deposit or fines, with interest which they may have paid [Recommended Order omitted from publication ]