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

National Labor Relations Board - Administrative Judge Opinions

Jun 28, 2019

03-CB-202698 (N.L.R.B. Jun. 28, 2019)

JD–53-19
Niagara Falls, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
LABORERS’ INTERNATIONAL UNION OF
NORTH AMERICA, LOCAL UNION NO. 91
(Scrufari Construction Co., Inc.)
and Cases 03-CB-202698
03-CB-207801
DUANE KORPOLINSKI, an Individual
and Case 03-CB-211488
FRANK MANTELL, an Individual
Eric Duryea, Esq. and Jessica L. Noto, Esq.,
for the General Counsel.
Robert L. Boreanaz, Esq.,
for the Respondent.
DECISION
STATEMENT OF THE CASE
DONNA N. DAWSON, Administrative Law Judge. This case was tried in Buffalo,
New York, on June 12–14 and July 2–3, 2018. Charging Party Duane Korpolinski filed
charges against Respondent Laborers’ International Union of North America (IUNA), Local
Union No. 91 (the Union) (Cases 03-CB–202698 and 207801) on July 20 and October 12,
2017. Charging Party Frank Mantell filed a charge against Respondent Union (Case 03–CB–
211488) on December 13, 2017. The General Counsel issued the Order Consolidating Cases,
Consolidated Complaint, and Notice of Hearing based on these charges on March 21, 2018.
The parties were given full opportunity to participate, to introduce relevant evidence,
to examine and cross-examine witnesses and to file briefs. On the entire record,1 including
my observation of the demeanor of the witnesses, and after considering the briefs filed by the
parties, I make the following.

1 The General Counsel moved to correct the record according to the error in the transcript at Tr.
24-25. I hereby grant that motion. (GC Br. at 15.)
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2
FINDINGS OF FACT
I. JURISDICTION
5
It is admitted, and I find, that for all material times, the employer named here, Scrufari
Construction Co. Inc., is a corporation with an office and place of business in Niagara Falls,
New York, and has been a general contractor in the construction industry engaged in
commercial construction. At all material times, Council of Utility Contractors, Inc.; The
Independent Builders of Niagara County; Associated General Contractors of America, New 10
York State Chapter, Inc.; and The Building Industry Employer’s Association of Niagara
County New York, Inc., collectively referred to as the Associations, have been organizations
composed of various employers, including Scrufari, engaged in the construction industry.
One purpose of these Associations is to represent its employer-members in negotiating and
administering collective-bargaining agreements with various labor organizations, including 15
Respondent Local 91. Annually, the employer-members of each of these Associations, in the
course of their business operations collectively, purchase and receive goods valued in excess
of $50,000 directly from points outside the Stated wherein the employer-members are located.
As such, for all material times, Respondent admits, and I find, that Scrufari, and the other
employer-members of the Associations have been engaged in commerce within the meaning 20
of Section 2(2), (6), and (7) of the Act.
It is also admitted, and I find, that for all material times, Respondent has been a labor
organization within the meaning of Section 2(5) of the Act.
25
II. ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that the Union, by operation of its non-exclusive hiring hall,
refused to refer Korpolinski from its out-of-work referral list, subsequently removed him from
that list without providing him with a mechanism to return to the list and threatened to sue 30
him for legal fees lost because of his protected activity. The complaint further alleges that
Respondent, by operation of its nonexclusive hiring hall, refused to place Charging Party
Mantell on its out-of-work referral list because of his protected activity. The complaint
alleges that by these actions, Respondent has been restraining and coercing employees in the
exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8(b)(1)(A) of 35
the Act.
A. Union’s Hiring Hall and Referral Rules
Respondent operates its nonexclusive hiring hall from its offices located in Niagara 40
Falls, New York, with Richard Palladino as its business manager since 2007. In doing so, it
refers and dispatches members for work with signatory contractor-employers; however,
members are permitted and do obtain work directly with employers without going through the
hiring hall. In fact, employers often request specific members who have worked for them in
the past. 45
JD–53-19
3
Respondent maintains an out-of-work referral list (also referenced herein as “the list”)
for its journeymen members.2 Members seeking job referrals must file with Local 91 a signed
and dated referral form providing name, telephone number, social security number, skills he
or she possesses, jobs able to perform, relevant licenses, certifications and other
qualifications.3 From these forms, Local 91 compiles the out-of-work referral list, consisting 5
of members who have registered their availability for referral. Local 91 employees post the
list on a weekly basis in an area in the office visible to members. The list is updated weekly
unless it is unchanged.4
It is undisputed that Respondent is supposed to adhere to its “LOCAL UNION NO. 10
91, LIUNA, AMENDED JOB REFERRAL RULES.” (GC Exh. 5.) Generally, members on
the out-of-work list are to be referred in the order in which they registered to be added to the
list, with the first member referred first, “provided that the applicant has the qualifications
requested by the employer.” (Id.) Although not set forth in their entirety here, these rules
include a number of exceptions, for example, the first applicant referred to any job shall be a 15
shop steward selected by the business manager without regard to position on the out-of-work
list; requests for foremen are filled by the business manager without regard to position on the
out-of-work list; and applicants who require additional hours of employment in order to
qualify for federal, state, or union trust fund benefit eligibility shall be referred prior to
applicants who qualify for such benefits, with the members requiring such additional hours 20
being referred in order of their position on the out-of-work list. The rules also permit Local
91 to fulfill an employer’s request for specific applicants employed by the employer within
the previous year, recently laid off employees, and applicants who have worked for signatory
contractors for not less than one year from the time of the request for hiring. (GC Exh. 5,
rules 4A and 4B). In addition to these exceptions, Local 91 has made their own exceptions. 25
Business Manager Palladino testified that he fulfills employers’ requests for specific
employees, if available, under any circumstances, without regard to their spot on the out-of-
work list. He also implied that Local 91 would also fulfill employers’ requests for minority
applicants to fulfill state and local contractual requirements. However, he later denied that he
referred members out for work solely because of their minority status. Finally, Palladino 30
testified that he often considered members’ personal circumstances such as illness of the
member or member’s spouse, financial hardship due to divorce and having too few hours to
qualify for unemployment or health benefits.
The rules further require that when Local 91 determines that a member who is first on 35
the out-of-work list cannot be referred because of refusal, unavailability, or lack of required
skills, it refers the next member on the list who is willing, available and has the necessary
qualifications. Regarding employer requests for employees to be filled on the same day as the

2 Apprentice members are not on this list, and Local 91, through Palladino, appears to assign them
to various jobs at his discretion, although the referral rules state that “Apprentices shall be referred
under a separate out-of-work list, and shall be listed according to their apprenticeship year.” There is
no evidence that this rule was followed. Rather, Palldino said that he tried to send them out whenever
he could. (GC Exh. 5, Rule 3B.)
3 See for example, GC Exh. 3; Tr. 99.
4 Respondent provided, in response to subpoena requests, computer print outs of “Referral List
Snapshot Reports.” These reports reflect the out-of-work referral lists as they appeared on the dates
indicated at the top. See GC Exh. 2- compiled “Referral List Snapshot Report[s].”
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4
request (or on a weekend), Local 91 is to go down the out-of-work list making one telephone
call to each applicant who has the required qualifications until the job is filled. Failure of the
member to accept such a short-term referral, “for whatever reason,” shall not be treated as a
refusal or as being unavailable. (GC Exh. 5, rule 4A.)
5
Members are required to re-register for the out-of-work list within 90 days to maintain
their position on the list.5 Requests for members for jobs lasting 16 hours or less do not
constitute referrals, and members so referred should be returned to his or her position on the
out-of-work list. A member who is referred to a job which lasts five working days or less
either because the job is terminated or the member is laid off or discharged will return to his 10
or her position on the out-of-work list.6 However, after receiving a referral after such a short-
term assignment, regardless of the subsequent referral’s length, the member must re-register
in order to be included on the out-of-work list. (Id.)
Sections of these referral rules which are in dispute in this case are, in relevant part, as 15
follows:
Applicants who, after registering their availability for referral, on their own,
obtain one or more jobs at the trade in the aggregate lasting five (5) working
days or more of employment, must advise Local 91 immediately. Those 20
applicants will then be removed from the out-of-work list. Failure to advise
Local 91 of such employment as required herein will result in the applicant
being removed from the out-of-work list.
The short term referral provisions herein are immediately inapplicable and the 25
applicant will be removed from the out-of-work list, if the applicant takes any
action within the first five (5) days of employment designed to manipulate this
provision of the Amended Job Rules, such as voluntarily quitting or requesting
to be laid off or discharged from a job to which he or she is referred.
30
(GC Exh. 5, rules 3C, 4C.)
The rules also require that Local 91 notify members of a job referral by calling them at
the telephone number on file. “Local 91 shall record the date and time of the call, the person
making the call, the name of the employer, the location of the job, the start date of the job, and 35
the results of the call, including whether the call was answered, by whom and what response,
if any, was made.” (GC Exh. 5, rule 4D). Palladino is the primary person who determines
which members get referred out to jobs, while Local 91’s part-time jobs dispatcher, Mario
Neri, and secretary, Diana Dominguez, are responsible for maintaining the out-of-work lists.7

5 See GC Exh. 4- 90-Day “Rollover Report” indicating “a regular daily rollover report,” printed
the first week of the month for members to sign for the 90-day list, which members must sign to
maintain their position on the referral list. (Tr. 106–107).
6 This means the position that he or she had on the list prior to being referred to a job.
7 Neri typically works only part of the year, from about the first or second week of May until after
Christmas. He returned early in February through March 2017 to cover for Dominguez while she was
out on maternity leave. During relevant time periods, other employees filled in for Neri and
Dominguez when they were both absent or on breaks.
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5
They are also responsible for calling members regarding referrals and completing work order
dispatch forms containing information about the contract employers, dates of requests, project
name and address, number of members requested, length of the projects, type of work to be
performed and licenses needed. The backs of the dispatch forms include the name of each
member called, time of the call, the caller’s initials, member’s response and any comments. 5
(E.g., see GC Exh. 6.) Palladino repeatedly admitted that many of these forms introduced into
evidence contain incomplete information. If a job lasts longer than 2 days, the information
on the work order dispatch forms is also entered into a computer. (Tr. 69; e.g. GC Exh. 26)
B. Background of Central Controversies10
Recently, the Board found that Local 91 violated the Act when it removed Charging
Party Frank Mantell from its out-of-work referral list in retaliation for his August 2015
Facebook posts criticizing Local 91’s business manager Palladino. See Laborers’
International Union of North America, Local Union No. 91, 365 NLRB No. 28 (2017). 815
Mantell’s Facebook comments criticized the Union, and specifically Palladino, for permitting
a Niagara Falls city councilman and mayoral candidate to obtain a journeyman’s book without
having to complete the Union’s 5-year apprentice program. These posts prompted Palladino
to file internal union charges against him in about September 2015 alleging the comments
damaged his ability to run the local. In early October 2015, the Union’s executive board 20
conducted a trial, sustaining the charges, and sanctioning Mantell with a $5000 fine and 24-
month membership suspension. During a monthly membership meeting on about October 11,
2015, members voted to ratify that decision.9 The minutes of this meeting specifically list
Charging Party Korpolinski, along with three other members, who voted “no against the fine
and suspension” of Mantell. (GC Exh. 18.) Palladino denied a request for a secret ballot, and 25
had members vote openly by a show of hands. (Tr. 319-320; GC Exh. 18.) The Union
removed Mantell from its out-of-work list on October 12, 2015. Mantell appealed this
decision to the International Union, and the International Union informed Local 91 on
December 4, 2015 that it dismissed all charges against Mantell. In addition to his appeal to
the International Union, Mantell filed Board charges, alleging that Local 91 removed him 30
from its out-of-work referral list from October 12 until November 19, 2015, in retaliation for
his Facebook postings criticizing Palladino. These charges led to the Board’s decision in
Laborers’ Local 91.
At some point, Palladino also filed a defamation complaint in state court in connection 35
with Mantell’s Facebook posts. There is no dispute that Palladino and Mantell do not like
each other. There is also no dispute based on testimony and Palladino’s demeanor at times
during his testimony that he continues to be angry over Mantell’s criticism of him and his
union leadership.
40

8 See Laborers’ International Union of North America, Local Union No. 91, 365 NLRB No. 28
(2017) (hereinafter referred to as Laborers’ Local 91), for Board and administrative law judge
decisions.
9 The meeting minutes reflect that there were 70 members in attendance, although Mantell
testified that there were additional members present who may not have signed the sign-in sheet. (GC
Exh. 18.)
JD–53-19
6
Here, Charging Party Mantell believes that Respondent refused to place him on its
out-of-work referral list from November 20, 2017, to January 19, 2018, because of his
protected Board activity, including but not limited to, his Board activity described above.
Similarly, Charging Party Korpolinski contends that Respondent retaliated against him for his
October 11, 2015 vote in support of Mantell (and Board activity) by refusing to refer him for 5
jobs from its out-of-work referral list from November 2015 and thereafter; by removing him
from and not returning him to the list from about May 31, 2017, and thereafter, and by
threatening him with legal fees. Since this saga began with Mantell, I will address his
allegation first.
10
C. Refusal to Place Mantell Back on the Out-of-Work List from
November 20, 2017 to January 19, 2018
Mantell has been a Local 91 member for over 20 years. In addition to his laborer
work through the Union, Mantell has also been a full-time firefighter for the Niagara Falls fire 15
department for over 20 years.
It is undisputed that in June 2017, the Union referred Mantell to employer Scrufari
Construction to perform work for the New York State Power Authority (NYPA). Neri called
Mantell the week before the job was scheduled to begin. He explained that there was a job 20
available on the midnight shift busting concrete (with a jack hammer).10 Neri also explained
that the job required a fitting for a full face respirator due to potential lead hazards, along with
respiratory fitness and blood tests. Mantell admitted that he accepted the job with an
understanding that it required him to work a midnight shift, and that it might last anywhere
from 2 weeks to several months. Prior to starting the Scrufari job, Mantell completed all the 25
prerequisite testing and fitting.
Mantell attended the first night of the job on Monday, June 19, 2017, which included
an orientation class. Dave Penque, Scrufari superintendent, confirmed that they would be
working the midnight shift, but also advised that due to some preliminary sandblasting, the 30
NYPA job would be delayed such that the employees would not begin work before that
Thursday. According to Mantell, when he realized that the job would not permit him to work
or switch to a day shift, he advised Penque, that he would only be able to work two nights
because of a conflict with his fire department work schedule. He claimed that Penque called
him the next day to tell him that he was “laid off.” (Tr. 331, 507.) On the other hand, Penque 35
testified that he interpreted Mantell’s inability to work more than two nights as his quitting the
job. Penque said that on Monday evening, he told Mantell that he assumed that he was not
returning because he could only work two days, and that Mantell responded, “‘that’s right.’”
They shook hands, and Mantell left. (Tr. 681–683.)
40
Penque and Scrufari, vice president, Thomas Warda, informed Palladino about
Mantell’s inability to complete the job because he could only work2 days. They expressed
their frustration with Mantell’s taking the job when he knew that he would not be able to work
the midnight shift for more than 2 days. Warda also wrote to Palladino on June 23, 2017,

10 Mantell testified that he received a call on a Thursday or Friday, and that the job started on
Monday. (Tr. 475–476; 330.)
JD–53-19
7
stating his disappointment “on losing the productivity and the employment of Frank Mantel[l]
due to his conflict of work with the Niagara Fire Department.” (Tr. 692–704; GC Exh. 63; R.
Exh. 3.)
Penque confirmed that the referred employees began the NYPA work on a Thursday, 5
after the sandblasting was done. That midnight or third shift for which Mantell was hired
initially lasted 8 to 9 weeks, stopped for about a month and a half, and then resumed. In the
interim, Scrufari laid off the four employees who started with Mantell. Penque testified that
he specifically asked that these employees return, but never considered requesting Mantell
given the circumstances under which he left the job. (Tr. 682, 689–690.) 10
Mantell’s testimony about his inability to work due his fire department schedule was
somewhat inconsistent.11 Initially, when asked what happened after he accepted the Scrufari
assignment, Mantell responded that, “I worked for two years before that I wanted to take the
job, but I didn’t know that I had to work midnights at the firehouse sometime in the future.” 15
When he was asked this question again, he said that, “I took the job because I assumed at the
time that I was going to be able to switch my days to bust concrete for Scrufari.” He claimed
to have made this assumption because he had done this in the past. (Tr. 330–331, 474–477.)
Further, Mantell, after much reluctance, admitted that prior to accepting the job, he knew that
he was scheduled to work the night shift at the fire house and that his fire chief would not 20
approve a schedule change or vacation request so that he could work the Scrufari midnight
shift. On cross-examination, when asked what fire department shift he was working at the
time he accepted the job, he responded that, “I was off those —days.” When asked again, he
said that, “I was off when I accepted the job.” Then he admitted that he was off for 4 days,
and then started working nights the following week, from 4:30 until 7:30 in the morning. He 25
finally revealed that, “I work four days on, then I’m off for four days, then I work four nights,
then I’m off for four and then it returns back to four days.” (Tr. 492–493.)
Mantell understood why Penque was not happy with him, as reflected in his testimony
that:30
So I let the superintendent know, Penque, know…that I was only available for
those two nights. He did voice some displeasure, I felt very bad about it and I
still do to this day, that…because I knew that my fire chief - - there’s a policy

11 Although I have included citations to the record to highlight particular testimony or exhibits, my
findings and conclusions are not based solely on those specific record citations, but rather upon my
review and consideration of the entire record for this case. My findings of fact encompass the credible
testimony, evidence presented, and logical inferences. The credibility analysis may rely upon a variety
of factors, including, but not limited to, the context of the witness testimony, the weight of the
respective evidence, established or admitted facts, inherent probabilities, and reasonable inferences
that may be drawn from the record as a whole. Double D Construction Group, 339 NLRB 303, 303–
305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership Group,
321 NLRB 586, 589 (1996)), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003). Credibility findings regarding
any witness are not likely to be an all-or-nothing determination and I may believe that a witness
testified credibly regarding one fact but not on another. Daikichi Sushi, 335 NLRB at 622.
JD–53-19
8
out there to change my vacations from day shift to night shifts, if it causes
overtime, he will deny it.
(Id.) Mantell never informed Neri, Palladino, or Scrufari of this potential conflict when he
accepted the Scrufari referral, nor did he inquire as to whether he would be able to switch 5
back and forth between day and night shifts at Scrufari. (493–499.) He also contradicted his
earlier testimony that he did not know that he would have to work nights “at the firehouse
sometime in the future.” (Tr. 502–503.) Regarding the dispute over whether Scrufari laid
him off or he quit, I find Mantell to be less credible. Mantell testified that Penque “called him
on the phone to lay me off.” When he was asked several times if Penque explained why he 10
believed that he (Mantell) quit, his testimony was nonresponsive. At first, he asked that the
straight forward question be repeated. Next, he repeated that, “[h]e called me on the phone to
lay me off.” Then, he finally testified that Penque never explained, but “just told me that I
quit and I said no, I got laid off and him and I went at it about that . . . [h]is position was that I
quit.” When asked if during Facebook interactions with Penque, Penque explained his 15
position, he testified that “I don’t remember.” (Tr. 526–527.)
Penque recalled that during subsequent Facebook communications with Mantell,
Mantell accused him of “falling into politics.” When Penque asked him what he was talking
about because he had quit the job, Mantell said, “‘I did not quit.’” In his opinion, Mantell had 20
confused being told there was a delay in the job on Tuesday and Wednesday with a layoff.
He said that he tried to explain that a delay was different than a layoff, but that Mantell
“started bashing” him so that he “ended up blocking him” from his Facebook page. (Tr. 684–
685.) I credit Penque’s testimony that Mantell was not laid off. Even if Penque told him that
he was, I find that this terminology, under the circumstances, would have been a matter of 25
semantics since the evidence is clear that Mantell determined his own fate with Scrufari.
A week after June 20, Mantell went to the union office and signed the new out-of-
work referral list. Shortly thereafter, he went back to check the list. He testified that Local 91
office secretary, Diane Dominguez, did not want to show him the list. When he asked 30
Palladino for a copy of the list. Palladino responded that he would give him a copy, but that
his name would not be put on the list because he had “quit the job” with Scrufari. (Tr. 331–
333.) When he next returned to the office, Neri told him that he was not on the list because he
was in violation of the Union’s referral rule 4C, and that Scrufari had sent a letter telling the
Union that he had “quit.” (Tr. 334–335.) He claimed not to have been familiar with rule 4C 35
at the time, but told Neri that Palladino was “being ridiculous,” and that he (Mantell) would
“just have to file more charges with the N.L.R.B.” (Tr. 510.)12 Palladino believed that he had
manipulated the provision by quitting the Scrufari job. (GC Exh. 5, Rule 4C.)
In early October 2017, Mantell wrote to the International Union, insisting that there 40
was no rule stating when a member should be put back on the out-of-work referral list, and

12 Respondent’s counsel spent an inordinate amount of time trying to impeach Mantell’s testimony
that prior to talking to Neri, he was unfamiliar with referral rule 4C. In this instance, it is believable
that Mantell did not know or recall each one of the referral rules. Therefore, I credit his testimony that
once Neri informed him of the alleged violation, he familiarized himself with the rule. Moreover, rule
4C does not instruct on how or when members should be returned to the list if they intentionally quit a
job.
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9
that he had not been referred to work since the incident in June. He further stated his belief
that this was “further abuse that [his] business manager exercises with [him] dating back to
September 2015 when he spoke up in a union meeting and [his] Facebook posts.” He insisted
that Palladino was “hiding behind” the referral rule and lying about having contacted the
International Union to “correct” the rule. Mantell requested that the general executive board 5
attorney amend the rule as to when a member can be put back on the list and referred for
work. (GC Exh. 22.) However, Palladino also requested clarification of the referral rules
from the International Union. (Tr. 733; GC Exh. 19.)
The IUNA general president, Terry O’Sullivan, responded to both Palladino and 10
Mantell by letter dated November 14, 2017. O’Sullivan wrote that, “[o]rdinarily, the
interpretation of a Local Union’s referral rules is within the Local Union’s discretion.
However, under the circumstances, it makes sense for me to advise you of the Local Union’s
experience with such language.” (GC Exh. 19.) In referencing several provisions relating to
short-term referrals, he explained that they all, including rule 4C, “result in the same 15
consequence: ‘the applicant will be removed from the out-of-work list.’” According to
O’Sullivan, the question posed by both parties was “when can such an applicant be restored to
the bottom of the list.” He pointed out that in the case of the rule dealing with multiple short-
term referrals and referrals lasting longer than 5 days, the rules require “that individual must
again register in order to be included on the out-of-work list.” He stated that scenarios under 20
all provisions required the applicant to re-register to be placed on the out-of-work list, and
that “[a]ccordingly, applicants who are removed from the list for any of the cited reasons
should be restored to the bottom of the list upon registering again.” O’Sullivan concluded by
stating that, “[h]owever, Local Union 91 is empowered to interpret and amend its own rules
consistent with the LIUNA Code of Best Practices and applicable law.”13 (GC Exh. 19.)14 25
Mantell’s interpretation of O’Sullivan’s letter was that he should have been returned to
the bottom of the list once he re-registered. Palladino’s interpretation was quite the opposite,
however. (Tr. 735–737.) By letter dated November 27, 2017, Palladino advised the Union’s
counsel, Robert Boreanaz, that,30
After receiving the communication from November 14, 2017 from President
O’Sullivan, it is our understanding that our position when a member who quits
a job can go back on the out of work list at the bottom of the list at the
completion of that same job along with the members who worked that job 35
[sic].
(GC Exh. 23.) Palladino testified that after consulting with the Local’s executive board, the
Local decided that Mantell should be returned to the out-of-work referral list “when the first
person is laid off from that job. When that job finishes to a point where somebody is laid off, 40
where he would have normally been laid off.” Palladino asserted that, “[w]hen that particular
aspect of that job, the crew that he would have been with, when the first person got laid off,

13 The record does not include any such best practices or other applicable law.
14 Referral rule 4C does not specify the circumstances under which a member who voluntarily
quits or requests to be laid off or discharged from a job is returned to the out-of-work referral list.
(GC Exh. 5.)
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10
Frank went back on that list at the same time.” He said that Mantell “should” have been put
back on the list when the first Scrufari crew member was laid off on about January 19, 2018.15
(Tr. 741–742, 744.) Palladino explained that the Local came to this conclusion to prevent
members who think “by taking the job that we have just called you for is going to prevent you
from being in a favorable spot on the out-of-work list,” to go to a more favorable job, “the 5
easiest thing to do is quit and want your position [on the list] back.” (Tr. 742–743.) Palladino
was also clearly upset that Mantell had quit the Scrufari job, knowing he would not be able to
fulfill the responsibilities and depriving another member of work. He was also concerned
about the Local’s credibility. (Tr. 725.)
10
Analysis
1. The alleged conduct falls within the jurisdiction of the NLRB
Although the Local does not owe employees a duty of fair representation in 15
connection with referrals from a nonexclusive hiring hall, a Union violates Section 8(b)(1)(A)
when it refuses to refer members for employment in retaliation for protected and concerted
activity. Laborers’ Local 91, 365 NLRB No. 28, slip op. at 1 (2017). The Board in Laborers’
Local 91 adopted the judge’s finding that, “Mantell engaged in protected, concerted activity
by posting his criticism of the Respondent and its business manager on Facebook.” In doing 20
so, the Board recognized ‘“an employee’s right to engage in intraunion activities in opposition
to the incumbent leadership of his union is concerted activity protected by Section 7,”’ citing
Steelworkers Local 1397 (U.S. Steel Corp.), 240 NLRB 848, 849 (1979); accord Laborers’
Local 836 (Corbet Construction), 307 NLRB 801, 803 (1992) (members have a statutory right
to object to the way officers operate the union); Plasterers Local 121, 264 NLRB 192 (1982) 25
(individual’s criticism of union leadership is protected by the Act).
In addition, the Board in Laborers’ Local 91 discussed how it had previously clarified
the scope of Section 8(b)1)(A) “by finding that internal union discipline may give rise to a
violation only if the union’s conduct: (1) affects the employment relationship, (2) impairs 30
access to the Board’s processes, (3) pertains to unacceptable methods of union coercion, such
as physical violence in organizational or strike contexts, or (4) otherwise impairs polices
imbedded in the Act.” Id, citing Office Employees Local 251 (Sandia National Laboratories),
331 NLRB 1417 (2000). The Board then stated that if the union’s discipline falls within the
ambit of Section 8(b)(1)(A), it “weighs the Section 7 rights of the union member against the 35
legitimate interests of the union to determine whether the discipline violates the Act.” Id.,
citing Service Employees Local 254 (Brandeis University), 332 NLRB 1118, 1122 (2000).
The Board next analyzed the Union’s interests against Mantell’s rights, concluding that
Mantell’s Section 7 right to “press the union to change its policies, especially those affecting
members’ employment opportunities, outweighs the Respondent’s vague claim that its 40
reputation was damaged.” Laborers’ Local 91, 365 NLRB No. 28, slip op. at 2. The Board
relied in part on Electrical Workers Local 2321 (Verizon), 350 NLRB at 262–263, where the
Board found that the members’ interest to engage in Section 7 rights to work voluntary
overtime contrary to the union’s request, outweighed the union’s legitimate interest in

15 However, as previously stated, Penque testified that he laid off the crew that started with
Mantell eight to 9 weeks after they began working in June 2017. (Tr. 682, 689–690.)
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11
maintaining loyalty and solidarity of its members. Applying these standards, the Board found
that by removing a member (Mantell) from the out-of-work referral list, Respondent deprived
him of work opportunities, and thereby affected the employment relationship within the scope
of Section 8(b)(1)(A). Id, citing Electrical Workers Local 2321 (Verizon), 350 NLRB 258
(2007) (“finding union discipline impacted the employment relationship where it resulted in 5
less opportunity to work overtime”).
I find that in applying these principles here, where Respondent refused to place
Mantell back on the referral list, it deprived him of employment opportunities, placing the
Union’s decision within the orbit of Section 8(b)(1)(A). Therefore, I reject Respondent’s 10
asserted defense that this matter constitutes an intraunion issue outside the jurisdiction of the
NLRB.
2. Respondent violated the Act by refusing to place Mantell on the out-of-work
referral list from November 20, 2017, to January 19, 201815
As previously noted, in Laborers’ Local 91, above, the Board recognized that an
employee’s Section 7 right to engage in intraunion activities such as Mantell’s Facebook
postings criticizing Palladino, is concerted activity protected by Section 7. Similarly, I find
that in this case, the same prior activity also constitutes protected concerted activity, as does 20
Mantell’s prior Board filings, hearing, and decisions.
In this case, where the question of mixed motives is raised, the next question is
whether Respondent discriminated against Mantell by failing to place him back on the referral
list, in retaliation for his protected activity. Analysis of this type of 8(b)(1)(A) allegation is 25
analogous to that of an 8(a)(3) discrimination claim against an employer. Thus, in
determining a motivation based 8(b)(1)(A) discrimination case, involving discipline, the
Board utilizes the analytical framework set forth in Wright Line, 251 NLRB 1083) (1980),
enfd. 662 F. 2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).16 See also, Plasters
Local 121, 264 NLRB 192 (1982); Electrical Workers Local 429, 347 NLRB 513, 515 30
(2006), remanded on other grounds 514 F.3d 646 (6th Cir. 2008). Under Wright Line, the
General Counsel has the initial burden of showing that Respondent’s decision to take adverse
action was motivated, at least in part, by animus against Mantell’s protected activity. In doing
so, the General Counsel must show that Mantell was engaged in protected activity; the
Respondent had knowledge of the protected activity; and that Mantell’s protected activity was 35
a motivating factor in Respondent’s decision to take adverse action against him.
If the General Counsel establishes a prima facie case, then the burden shifts to
Respondent to prove that it would have taken the same action even in the absence of the
member’s protected activity. See e.g., Libertyville Toyota, 360 NLRB 1298, 1301 (2014), 40
enfd. Sub nom. AutoNation, Inc. v. NLRB, 801 F.3d 767 (7th Cir. 2015); Willamette
Industries, 341 NLRB 560, 563 (2004). But where the record demonstrates that the
employer’s proffered reasons are pretextual, “either false or not in fact relied upon—the
[employer] fails by definition to show that it would have taken the same action for those
reasons, absent the protected conduct.” Golden State Food Corp., 340 NLRB 382, 385 45

16 There is no doubt here that Respondent’s actions here constituted discipline.
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12
(2003), citing Limestone Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir.
1982).
Factors which may support an inference of animus include the timing of the adverse
action in relation to the protected activity, other unfair labor practices committed, 5
respondent’s reliance on pretextual or shifting reasons to justify the adverse action, disparate
treatment of members based on protected activity and a respondent’s deviation from past
practice. See Case Farms of North Carolina, Inc., 353 NLRB 257 (2008), citing Robert
Orr/Sysco Food Services, 343 NLRB 1183, 1184 (2004), enfd. Mem. 184 Fed Appx. 476 (6th
Cir. 2006); Temp Masters, Inc., 344 NLRB 1188, 1193 (2005); JAMCO, 294 NLRB 896, 905 10
(1989), affd. Mem., 927 F.2d 614 (11th Cir. 1991, cert. denied 502 U.S. 814 (1991); Naomi
Knitting Plant, 328 NLRB 1279, 1283 (1999). Evidence in support of these factors may be
either direct or circumstantial. SCA Tissue North America LLC, 338 NLRB 1130 (2003),
enfd. 371 F.3d 983, 988-989 (7th Cir. 2004).
15
I have found that Mantell engaged in protected activity, and the evidence is clear that
Respondent was aware of his activity, including his Facebook postings criticizing
Respondent’s and Palladino’s actions which impacted members’ employment conditions, as
well as his prior Board activity. The Board decision in Laborers’ Local 91 issued on
February 7, 2017. That case closed on compliance by Board letter dated June 20, 2017. 20
Further, Palladino, during the time frame at issue, had a pending defamation lawsuit against
Mantell involving the same Facebook posts which the Board deemed protected activity.17
Evidenced by lines of questioning at trial and argument in its brief, Respondent has also
indicated its belief that Mantell motivated Charging Party Korpolinski to file his Board
charges in July and October 2017. Therefore, the timing of Local 91 refusing to return 25
Mantell to the list is within close enough proximity to infer animus.
Moreover, I find that Respondent’s overall conduct demonstrates continued animus
towards Mantell’s protected activity. The Board has allowed as background evidence of
animus a respondent’s conduct born out in prior Board findings. Grand Rapids Press of 30
Booth Newspapers, Inc., 327 NLRB 393, 395 (1998), enfd. 215 F.3d 1327 (6th Cir. 2000).
Here, there is certainly a finding in the Board’s decision in Laborers’ Local 91 of Palladino’s
animus towards Mantell’s protected activity involving the Facebook posts. I also find that
Respondent, through Palladino, continued to show animus towards Mantell’s protected
activity, including his continued disdain for Mantell’s Facebook postings. It was obvious 35
from his demeanor at trial, including his facial expressions and anger tinged tone of voice
when testifying about Mantell, that his attitude towards Mantell extended beyond Mantell’s
accepting and then leaving the Scrufari job after the first night. (Tr. 300–303.)
Understandably, Palladino was upset when Mantell accepted the Scrufari job when he 40
knew that he would have a conflict with his work schedule. However, I find that his
explanation for punishing Mantell was inconsistent with the prolonged sanction, in other
words, keeping him off the out-of-work referral list through January 18, 2018, which was well
beyond the time that the initial work team was laid off (8 to 9 weeks after the job started in

17 Palladino did not refute testimony that his defamation suit involved some of the same Facebook
comments.
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13
June). In addition, the sanction itself went against the International Union’s advice and
experience with how referral rule 4C had been interpreted by Local 91. Both Mantell and
Palladino sought clarification of the referral rules at issue from the International Union as they
pertained to when and how a member should be returned to the referral list after working less
than 5 days, and in Palladino’s mind, after quitting to manipulate his or her position upon 5
returning to the list. Specifically, referral rule 4C states that a member will be removed from
the referral list if he or she “takes any action within the first five (5) days of employment
designed to manipulate this provision of the Amended Job Rules, such as voluntarily quitting
or requesting to be laid off or discharged from a job to which he or she is referred.” (GC Exh.
5, p. 5.) Terry O’Sullivan, the International Union’s general president, responded to both 10
Mantell and Palladino in the same letter, dated November 14, 2017, as to when an applicant
under those circumstances should be “restored to the bottom of the list.” (GC Exh. 19.) He
acknowledged that it was within Local 91’s discretion as to how it interpreted the referral
rules. However, O’Sullivan further advised that in his experience with Local 91, under all
circumstances when a member has been removed from the referral list, including one who 15
“end[ed] a referral prematurely to avoid the five-day rule (Section 4C),” “should be restored
to the bottom of the list upon registering again.” Therefore, the International Union
essentially recommended that Mantell be placed at the bottom of the referral list as soon as he
re-registered to be on the out-of- work list.
20
Instead of taking the advice that he sought, Palladino conferred with his executive
board, and determined that Mantell should not be returned to the out-of-work referral list until
Scrufari laid off the members who started the job with Mantell in June 2017. Palladino
testified that they did this to preclude members from quitting a job early so that they would be
returned to the same position on the list in the hopes of being referred out to a better job. The 25
evidence shows that Mantell took the Scrufari job hoping that he would be able to work a shift
other than the one offered.18 Respondent has not shown that Mantell intentionally quit the
Scrufari assignment to manipulate this provision of the rules, or to get back on the list in the
same position so that he could be selected for a better job or perhaps one that would not
conflict with his fire department schedule. In fact, the allegation here is that Mantell should 30
have been returned to the out-of-work list on November 20, 2017, rather than in January 2018
which was well after the Scrufari third shift was laid off (according to Penque). (Tr. 689.)
Further, moving a member to the bottom of the list, per the International Union’s guidance,
would have ensured that the member would not immediately be selected for another job. I
find that Palladino specifically targeted Mantell by departing from Local 91’s referral rules 35
and Local 91 practice and exacting punishment inconsistent with his own “ad hoc” rule.19
It also appears that Mantell was treated differently than other members, except
Korpolinski, in that Palladino and Neri could not recall any other members who had ever been
disciplined for violating the referral rules. Although there was no evidence of any members, 40
other than Mantell and Korpolinski, being disciplined for violating referral rules, I find it
unbelievable that in all the years that Palladino has been business manager for Local 91 that

18 Mantell testified that he had been able to switch shifts in the past under these circumstances; no
other witnesses rebutted this testimony.
19 Although Respondent claims in its brief that Local 91’s executive board decided what sanction
Mantell would receive in this case, the decision was based on Palladino’s recommendation.
JD–53-19
14
no other members have violated the referral rules or left a job early. In fact, the General
Counsel submitted evidence showing that members were often not removed from the referral
list when they violated referral rule 3C by working directly for a contract employer over 5
consecutive days without notifying the local. Although dissimilar to Mantell’s alleged
violation, it is nevertheless one that Respondent enforced against Charging Party Korpolinski, 5
and therefore additional evidence of Respondent’s animus against Mantell and Korpolinski
for their protected activity.20
I also find as evidence of animus, that during the time that Mantell was kept off the
referral list, Respondent, through Palladino, committed another unfair labor practice as set 10
forth later in this decision. Based on inconsistencies in the reasons for keeping Mantell off
the referral list for an unreasonably extended period, timing, departure from the referral rules
and Respondent’s practices, and evidence of disparate treatment, I find that Palladino sought
to punish Mantell in most part due to his protected activity. I further find that his explanation
for the discipline was pretextual. There is simply no evidence that Respondent would have 15
taken the same action against Mantell but for Palladino’s disdain for his protected activity.
In balancing interests, Respondent has not shown that its pretextual reasons for
keeping Mantell off the referral list for over 5 months (July 2017 through January 2018)
outweigh Section 7 right to “press the union to change its policies, especially those policies 20
affecting members’ employment opportunities.” Laborers’ Union Local 91, 365 NLRB No.
28, slip op. at 5.
D. Failure to Refer Korpolinski for Work Off of the Out-of-Work List and
Korpolinski’s Removal from the Out-of-Work List25
1. Korpolinski has not received work from Local 91’s out-of-work list
As previously stated, Korpolinski voted against sanctioning Mantell during the
monthly union meeting in October 2015. Korpolinski, like Mantell, has been a long-time 30
laborer member of Local 91 (over 20 years). He testified that he realized in early July 2017
that he had not been receiving any work through the Union since November 2015. In the
same time frame, he also discovered that since about the end of May 2017, he had been
removed from the out-of-work list. The evidence substantiates that when Korpolinski was on
the out-of-work referral list, the Union never referred him out to work. This was the case 35
despite the Union on numerous occasions, referring other members positioned below him on
the list. Korpolinski claimed that this was the first time in his 20 plus years with the Union
that he had not been referred out for work for such an extended period of time.21 Korpolinski
testified that he did not say anything to anyone from the Local about not getting referrals until
the summer of 2017 because, “[t]here’s a slow time of the year, and I just thought there was 40
no work.” (Tr. 554). He claimed that his opinion changed when he talked to one of the
Scrufari superintendents, Phil Weipert, in July 2017.22 He said that when he contacted
Weipert to ask if he had any work available, “the first thing out of [Weipert’s] mouth was, ‘I

20 This will be discussed further below relating to Korpolinski’s allegations.
21 This testimony was not disputed.
22 I note that the transcript spelling of Weipert’s name is incorrect.
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15
heard you got blackballed.’” (Tr. 556.) He denied having been blackballed, informing
Weipert that he remained a union member in good standing. Weipert then told him that
he/Scrufari might have work the following week. Korpolinski insisted that he told Weipert to
call him first, and then he (Korpolinski) would in turn notify the Union if he went to work for
him. Weipert called him to work for Scrufari the next week. Korpolinski maintained that he 5
called the union office and told Neri that he would be going to work for Scrufari, despite
having stated in his August 2, 2017 Board affidavit that he told Weipert to call him
(Korpolinski) first and then to call the union hall to let them know that he would be going to
work for Scrufari. He claimed that he always followed this procedure after receiving work
from a contract employer.23 (Tr. 557–558, 643–645.) 10
2. Mantell informs Korpolinski that he is no longer on the out-of-work referral list
Korpolinski initially testified that he learned, through a telephone conversation with
Mantell “in August ’17 some time,” that his name was not on the out-of-work referral list. He 15
advised Mantell that he was working for a landscaping company (nonunion job) at the time.
He said that Mantell told him to find out why he was not on the list. Korpolinski did not recall
when he filed his charge, but when it was shown to him, and he was asked if he filed it before
or after his conversations with Mantell and Weipert, he responded, “I think shortly
thereafter.”24 (Tr. 559–560.) Korpolinski’s charge, dated July 7, 2017, was filed with the 20
NLRB on July 20, 2017. Korpolinski testified that he did not know his name was not on the
out-of-work list prior to speaking to Mantell because he did not stop into the union every day
to look at the list. Instead, he tried to stop in once every 2 weeks. (Tr. 559.) Mantell
confirmed that he called Korpolinski in July of 2017, to tell him that his name was not on the
referral list. He also said that he told him “that he has every right to file charges with NLRB 25
for Local 91 taking him off the list.” He then gave him the contact information for the NLRB.
Mantell denied that he had been coaching Korpolinski on what to tell the Board. (Tr. 337–
339.)25
Korpolinski did not contact Neri or anyone else in the union office before he filed his 30
July 2017 charge. When asked what he did after he discovered that his name was not on the
referral list, Korpolinski responded that, “I called the hall and talked to Mario [Neri].” (Tr.
560.) He recalled that “I think it was end of August, beginning of September maybe” when

23 On cross-examination, Respondent’s counsel showed Korpolinski his Board affidavit where he
stated that “I told him to call me first and then to call the hall.” Respondent’s counsel then asked him,
“And you don’t know as you sit here today, whether or not Phil Weipert did call the hall to tell them
that they—he was going to hire you like you instructed him to?” Korpolinski responded that, “He told
me that he didn’t call the hall. He called me and I am the one that called the hall.” (Tr. 644.)
24 Korpolinski’s July7, 2017 charge allegation that he voted against sanctioning Mantell in
October 2015 confirms that he probably spoke to Mantell about his name not appearing on the out-of-
work list in early July rather than in August. (GC Exh. 1(a).)
25 Mantell also spoke to Korpolinski after he (Korpolinski) made his Board affidavit, and told him
that he had put down the wrong year (2016 rather than 2015) that the membership meeting occurred
(during which Korpolinski voted in support of Mantell). I find that they must have discussed what
Korpolinski wrote. However, I do not find this to be evidence that Korpolinski knew or should have
known or discovered before July 2017 that he had been retaliated against because of his support of
Mantell.
JD–53-19
16
he called Neri at the union hall. He said that Neri told him that Palladino wanted to speak to
him the next time that he came into the union hall. The next time that he went to the union
hall, he met with Palladino, in the presence of Neri and the secretary, Dominguez, in the front
office. Neri showed him a highlighted paragraph in the referral rules and they told him that
he had worked more than 5 days in a row and had to contact the hall if he worked more than 5 5
days. Korpolinski told them that he always contacted the office to notify them that he was
working on a union job. (Tr. 560–562.) Palladino and Neri did not refute testimony that they
informed Korpolinski that he had been removed from the out-of-work referral list because he
had violated rule 3C.
10
It appears from referral list snapshot reports that Korpolinski was not on the referral
list from June 5, 2017, until November 21, 2017. (GC Exh. 2, pp. 134–171.) On a
corresponding out-of-work sign in sheet, Korpolinski signed in on June 30, 2017, and
indicated that his last day worked was “6-1-17.” (GC Exh. 3.) Based on this document, he
should have been returned to the out-of-work referral list after June 1, 2017. Prior to June 5 15
and after November 21, 2017, except for a short period between December 8 and 13, 2017,
his name appeared on all referral lists of record through June 7, 2018. (GC Exh. 2, pp. 1–133,
179–182, 183–215.)
3. Between November 2015 the Union bypasses Korpolinski for laborer jobs over 20
members positioned lower on the out-of-work referral list between November
2015 and June 2018
Korpolinski testified that prior to his voting against sanctioning Mantell in October
2015, he had received work “pretty steady in the summer,” and that winter was usually the 25
slower time of the year, with summer being the busiest.26 He was last referred out by the
Union as a steward in 2014.27 (Tr. 638–639, 648.) (Tr. 549–550, 567–568.) He admitted that
he worked directly (outside of the union referral system) for Scrufari and Patterson-Stevens,
both contract employers, in December 2015. He also worked directly for these contractors, as
well as contract employer C’errone, at various times in 2016 and for Scrufari in 2017. 30
Therefore, he understood that he would not have been referred off the out-of-work list during
these times. (Tr. 624.) Although he knew that the referral hall rules were posted in plain
sight for members at the union hall, he testified that he never actually read the rules. He only
knew that he was supposed to notify the Union if he received work directly from contractors,
sign up for the out-of-work referral list when he was not working for a signatory employer 35
and re-sign for the 90-day list.
The General Counsel submitted evidence, consisting of Respondent’s records,
showing that the Union has not equally applied its rules to members, with some members who
worked well over 5 days before (or without) being removed from the out-of-work referral list. 40
Palladino and Neri did not know of any other members (other than Korpolinski) who had been
removed from the referral list or not placed back on the list after re-registering under those

26 He identified and confirmed that GC Exh. 20 accurately reflected his work hours throughout his
history with the Union.
27 Korpolinski did not recall if it was Palladino who appointed him as steward in 2014, but
Palladino would have been the business manager at that time. (Tr. 261; GC Exh. 62.)
JD–53-19
17
circumstances. Evidence was also provided to show how the Union repeatedly, after
November 2015, skipped over Korpolinski to call and refer those members below him on the
referral lists. Although Korpolinski admitted that he had not been qualified to work on jobs
involving lead abatement, asbestos work and hazmat for 8–10 years, there was no dispute that
he maintained other certifications such as his OSHA 30 and/or 40 and an up to date drug card. 5
(Tr. 629–630.) Nor was there any dispute that he was qualified to be called out for many of
the general labor jobs which did not require any special certifications. (Tr. 549.) Although
Respondent had not called him to work as a steward through Local 91 since early 2014, there
is no evidence that Korpolinski had been disqualified to act as a steward. In addition, there is
no dispute that members who were listed above Korpolinski were also passed over for 10
members positioned below them on the list.
Palladino denied having discriminated against Korpolinski because of his support of
Mantell or prior protected activity. Instead, he testified that Korpolinski was “probably”
passed over for various reasons, including but not limited to: not being qualified for a job, not 15
being specifically requested or recalled by an employer, not being a minority, not having any
special need for extra work due to an illness or other financial difficulty, and even not being
young or strong enough for certain jobs. However, in many instances, Palladino simply did
not know or recall why Korpolinski was passed over in favor of other general Laborers’ who
filled spots below him on the out-of-work referral lists. In other cases, he speculated about 20
why Korpolinski was overlooked. Palladino also admitted that many of the work orders in
evidence had not been properly maintained. In other words, they did not include initials of the
staff person who took down referral call information, the qualifications required, if any, by the
employer, or the reasons why a specific employee was selected.
25
The General Counsel presented numerous alleged examples where Respondent
referred other members who were below Korpolinski on the respective lists without
explanation (GC Br., Chart A) or without an adequate explanation (GC Br., Chart B). A
review of the General Counsel’s Brief Charts A and B reveal that the General Counsel
accurately captured most of those occasions and supporting information from the work order 30
forms and corresponding referral lists (set forth at GC Exh. 2) dated on or closest to the dates
of the employers’ requests for members. After an examination (below) of this data and
Palladino’s testimony as to why Korpolinski was not referred for work, I find the evidence
substantiates most of these allegations and additional instances of insufficient or speculative
reasons for repeatedly bypassing Korpolinski on the referral list. 35
a. Review of the General Counsel’s Chart A
On November 10, 2016, employer Accent Stripe requested an employee to stripe
roads. Palladino initially testified that the Union referred member David Singer in November 40
2016 because he thought he was an apprentice and was young. However, since Singer
appears on the November 7, 2016 out-of-work list at #34, he admittedly was not an
apprentice. There was no explanation as to why Singer was referred and Korpolinski, #24 on
the list, was not. In addition, there is no evidence that this employer requested someone who
was young, nor was there evidence that Korpolinski could not perform the work. (GC Exh. 45
29 and GC Exh. 2, p. 80; Tr. 838–840.)
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18
In response to a job request from employer Anastasi on May 16, 2016, the Union sent
Member Spotted Elk, #93 on the list. Korpolinski, #56, was not referred. Palladino initially
testified on direct that Spotted Elk was a minority, implying that this was why he was
selected. However, on cross-examination, he testified that, “if that[‘s] the impression I gave,
it’s not the reason he was sent. I just said he is a minority. . . [t]here might have been other 5
reasons why he was sent. I wasn’t asked that question.” Although he subsequently indicated
that employers like Anastasi might have requested a minority to fulfill their obligation for
Department of Transportation work, he confirmed that he did not know why Spotted Elk was
called for this job. (Tr. 895–896, 982–983; GC Exh. 44, GC Exh. 2, pp. 51–52.)
10
In response to a job request from employer Anastasi on May 9, 2016, the Union called
members Alex Lotterio and Mark Nichelson. Nichelson, #38 on the list, was ultimately
referred after Loterrio, #57, did not answer the call. Korpolinski, #56, was not called.
Although Palladino believed that Lotterio was called first because he needed the hours to
qualify for retirement, he was surprised that he was still on the referral list. (Tr. 900–902; GC 15
Exh. 48 and GC Exh. 2, pp. 49–50.)
In response to employer Edbauer Construction’s request for a laborer with a drug and
background check on May 22, 2017, the Union, on May 30, 2017, called member Timothy
Hertel, #46 on the list. Palladino did not know the reason why Hertel was called and referred 20
while Korpolinski, #35, was not, but testified that there was no need for a drug and
background check for this contractor’s work. (Tr. 912–914; GC Exhs. 52, 2, pp. 132–133.)
Similarly, in response to employer Scrufari’s request for a concrete worker on August
26, 2016, the Union called/referred members Ed Passero, #44 on the list, as well as members 25
Nichelson and Peter Morreale who were not on the referral list at the time. Korpolinski, #35,
was not called. Palladino testified that he “[had] no idea other than the fact that I know they
do concrete work. I don’t know why, other than that.” There was no evidence that
Korpolinski was unqualified to perform concrete work (Tr. 927–928; GC Exhs. 60, 2, p. 70).
30
b. Review of the General Counsel’s Chart B
In response to employer Patriot Field Services’ March 10, 2017 request for 5 laborers,
the Union called and referred: David Singer (#51 on the list), John Jaruszawicus (#30), Gregg
Strassel (#57), Ralph Rose (#79) and John Pattatoni (#63). Pattatoni was sent as a steward. 35
Palladino said that Singer was an apprentice, but again, he was not an apprentice as he
appeared on the referral list. Korpolinski, #11, was not called. Palladino testified that, “[t]he
chances are—I don’t know, but the chances are they were asked for as previous employees.”
He then stated that there could be “a bunch” of reasons that Jaruszawicus would have been
selected- he might have needed a day to meet his unemployment threshold or they might have 40
tried to help him because he was going through an “ugly divorce.” I find these reasons were
mere speculation. Moreover, there is no evidence that this contractor specifically requested
these members, other than perhaps Pattatoni as the steward. (Tr. 768–772; GC Exhs. 8, 2, pp.
118–119.)
45
In response to employer W. Johnson Company’s April 26, 2017 request for two
general laborers with drug and OXY cards, the Union referred members Willie Johnson, #6,
JD–53-19
19
on the referral list, and Karl Walker, #56. Palladino testified that this employer had difficult
requirements, including the drug and OXY cards and an OSHA certification. He further
testified that Johnson’s minority status and prior work for the employer may be the reason he
was sent. Regarding Walker, Palladino said that “[h]e got very little work that year . . . I’d be
surprised if he had $3 or $400 . . . I don’t know other than [that] we try to get the hours for 5
these guys, at least to get their unemployment and their medical.” He did not offer a reason as
to why Korpolinski, #53, was not sent. (Tr. 775–778; GC Exhs. 10, 2, pp. 122–124.)
Pinto Construction’s June 17, 2016 request for three members with OXY orientation
was filled with members James Drabczyk, #42 on the list, Joseph Sardina, #2, and Vincent 10
Mameli, who was not on the list. Palladino explained that Drabczyk was always sent out as a
steward because the employer’s safety person liked him. However, he only speculated that
they referred Sardina and Mameli because they needed the hours. (Tr. 840–842; GC Exhs.
30, 2 pp. 59–60.) There was no evidence that Korpolinski, #37, did not have the requirements
for this job. 15
The Union responded to employer Patterson-Stevens, Inc.’s August 15, 2016 request
for two members with a drug card, OXY orientation and a steward by referring members Carl
Schul,#45 on the list, and Drabczyk, #43. The contractor requested Drabczyk, but Palladino
did not know why Schul was sent, or explain why Korpolinski, #40, was not called or 20
referred. (Tr. 869–871; GC Exhs. 38, 2, p. 69.)
Palladino testified, regarding employer Pinto Construction’s October 10, 2016 request
for one general laborer, that member Schul, #42 on the list, “was probably sent as a steward.”
However, he was not sure. Palladino did state the qualities that he sought in a steward. He 25
did not, however, explain why he never sent Korpolinski out as a steward when a contractor
did not request a specific employee. Although, Korpolinski, #29 on the list, had not been
referred as a steward since 2014, there is no evidence that he was not qualified to perform the
work. (Tr. 884–886; GC Exhs. 41, 2, p. 77.)
30
Employer Woodsmith requested one member on May 10, 2016. The Union called
members Alex Lotterio, #57 on the list, and Mike Ujesti, who was an apprentice and not on
the list. Palladino guessed that Lotterio “[p]robably needed time.” Korpolinski, #55, was not
called. (Tr. 898–900; GC Exhs. 47, 2, pp. 49–50.)
35
On May 10, 2016, employer CVF, a concrete contractor requested one employee. The
Union referred member Dave Bellring, #93 on the list (Korpolinski was #55). Palladino’s
explanation was, “[o]ther than the fact he’s just young and strong. He’s one of the young
people. The concrete work is really difficult, so the only thing I can think of is we wanted to
send somebody young that could help.” Again, this reason is speculative at best, and there is 40
no evidence that Korpolinski was not strong enough to perform concrete work. (Tr. 902–903;
GC Exhs. 49, 2, pp. 49–50.)
Employer Anastasi made two requests in May 2016 for members to perform general
labor work. On May 17, the Union sent member Spotted-Elk, #93 on the list. On May 26, the 45
Union called members Nichelson, who was not on the list, and Roger Hedlund, #62.
Nichelson declined and Hedlund accepted. Korpolinksi, at #56 on the May 16 list and #36 on
JD–53-19
20
the May 23 list, was not called. Regarding Spotted Elk, Palladino testified that “[o]ther that
the fact that he’s a minority and he gets very few hours. We try to help wherever we can. I
don’t know why he was so high on that list.” He then testified about the mayor’s referendum
to try to hire minorities in the city, and how he “firmly” believed in it. This testimony was
contrary to his testimony that he did not send members out because they were minorities. 5
Regarding the May 26 job, Palladino testified that Hedlund is a “finish laborer, and that he
sends him for special caulking jobs. However, he said it was unusual for him to be sent out
on this type of job. Nevertheless, I find that Palladino failed to sufficiently justify why the
Union referred Spotted Elk and Hedlund out over Korpolinski. (Tr. 903–904, 910–912; GC
Exhs. 50–51, 2, pp. 51–54.) 10
Similarly, Palladino guessed as to the reasons the Union sent out members Mameli,
#42 on the referral list, to employer Certified Safety Products on about September 9, 2016.
He could only guess that “maybe the work was similar” to work performed on other jobs. (Tr.
921–923; GC Exhs. 57, 2, p. 72.) 15
It appears that on June 7, 2016, employer American Environmental requested the
“same employees” for general labor. The Union referred three employees who held spots
below Korpolinski, #37 on the list, during that time: Tracy Russell, #60, Dave Knack, #49,
and Nichelson, #40.28 Palladino testified that when an employer requests the same employees 20
who had previously worked for them, without providing names, the Union has to look in the
computer system to see who had been sent in the past. He believed that Winn and Major may
have also come up as members who worked for the employer, but they were not available.
Since the job order request form indicates that this contractor requested “the same
employees,” I accept Respondent’s explanation in this case. (Tr. 923–926; GC Exhs. 58, 2, 25
pp. 57–58.)
The General Counsel sites a work order request, dated August 31, 2017, for one
general laborer. The Union referred member Karl Walker, #10 on the list. At that time,
Korpolinski was not on the referral list. Although, this is during a period when the General 30
Counsel alleges that Korpolinski should have been placed back on the list, I find that had he
been placed back on the list, there is no evidence that he would have been returned to the list
in a spot higher than #10. (Tr. 926–927; GC Exhs. 59, 2, p. 145.)
c. Additional instances of unexplained reasons for bypassing Korpolinski35
There were several other instances, not listed in the General Counsel’s charts A and B,
where I find that the Union did not adequately explain why Korpolinski was not called or
referred out to work. In response to employer PFS’ April 28, 2016 request for three members
with an OSHA 30 certification, the Union called five members: Louis Marcantonio, #60 on 40
the list, Glenn Zientara, #13, Stanley Kajfasz, #54, Spotted Elk, #13, and Dominico Anello,
#26. The Union referred out the last three, noting that the first two called back too late.
There was no explanation as to why Korpolinski, #55, was not called, and no evidence why he

28 Members John Winn, #63, and Justin Majors, not on the list, were named on the referral form,
but it was not clear as to whether they were called.
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21
would not have been qualified over Marcantonio. In fact, Palladino testified that he thought
Korpolinski had his OSHA 30 certification. (Tr. 793–798; GC Exhs. 12, 2, pp. 122–123.)
Similarly, Palladino could not explain why the Union referred employees Karl Walker,
#40 on the list, Joseph Sardina, #43, and John Jaruszawicus, #17, over Korpolinski, #15, other 5
than they “may not have had much time” or may have needed money or had another hardship
such as divorce in the case of Jaruszawicus. (Tr. 832–835; GC Exhs. 27, 2, pp. 63–64.)
In addition, I find that Palladino only speculated as to why Korpolinski, #32 on the
list, was passed over to work for employer Accent Stripe on September 1, 2016 (members Ed 10
Passero, #41 on the list and Mameli, #36, referred). Palladino testified that they probably
worked for the company before, and “they liked” them. However, no specific requests were
noted on the work order dispatch forms. (Tr. 835–837; GC Exhs. 28, 2, p. 71.)
Next, Palladino only guessed that member Marvin Dye, #31 on the list, was referred 15
over Korpolinski, #18, on June 20, 2016, because he is a minority, and that the employer, Mill
Lawn “does not normally carry minorities. So that would have been a perfect fit for them.”
(Tr. 851–853; GC Exhs. 32, 2, p. 61.)
As stated, Palladino offered speculative reasons, not listed as exceptions in the referral 20
rules, for various referrals, including but not limited to: “guess” that the member was sent
because “he had very few hours;” “[o]ther than the fact he’s just young and strong . . . [h]e’s
one of the young people . . . [t]he concrete work is really difficult, so the only thing I can
think of is we wanted to send somebody young that could help;” and “I have no idea other
than the fact that I know they do concrete work . . . [h]e’s a big man . . . [a]nd this job was a 25
really tough job.” (See e.g., Tr. 772, 809, 830, 834, 903, 922, 928.) He emphasized that he
considered a member’s personal situation when making referrals, such as a member’s illness
or that of his or her spouse (Tr. 761, 892); a member’s “ugly divorce.” a member without a
driver’s license (Tr. 789); and even a member with drinking problems on the job. (Tr. 809.)
As the General Counsel pointed out, there was no evidence that Korpolinski was afforded 30
such special treatment or consideration, even when his hours were so low (at 141.75 hours in
2017) that he was ineligible for medical benefits. (Tr. 989–990; GC Exh. 20.) There was
even an incident where Palladino repeatedly referred out and assisted with a transfer to
another local for a member who was caught “drunk and disorderly” on one job and “stealing”
on another. (Tr. 748–749.) 35
The General Counsel pointed out several members who remained on the out-of-work
referral list despite having worked for contract employers for over 5 days. Given the various
reasons provided for referring members out of order from the out-of-work list, it was not
surprising that Palladino admitted that unless someone in the office happens to see a member 40
on the out-of-work list and knows that they are in fact working, that member may stay on the
list. Surprisingly, he also volunteered that “it wasn’t that important to me and that happens,”
and he “just didn’t pay attention.” He also attributed the failure to remove working members
from the list to being short staffed, claiming that they were “not looking to offend we’re not
looking to hurt anybody’s feelings, but it’s not as punctual as it should be.” (Tr. 816–817.) 45
There is no evidence that these members had notified the union office that they were working,
or that they were disciplined for not having done so.
JD–53-19
22
4. Credibility
It is a bit unusual that Korpolinski never questioned Palladino or Neri about why he did
not receive any work from the out-of-work referral list between November 2015 and July 5
2017; however, I credit his testimony that he did not discover or believe that he had not
received jobs from the referral list because of his protected activity until July 2017. This is
when he heard that he had been blackballed. It is also when Mantell told him he had been
removed from the referral list, and that he should file a charge with the NLRB. Korpolinski
testified that he did not question Palladino or Neri as to why he was not receiving referrals 10
from Local 91 because work had been slow. He explained that work through Local 91
typically had been slower in the winter and picked up in summer months. Although he did
not obtain work through Local 91 in the summer months of 2016, when work should have
picked up, Korpolinski continued to work directly for contract employers such as Scrufari and
Patterson-Stevens in December 2015, and periodically in 2016, 2017, and 2018. (Tr. 631.) 15
Respondent’s records reflect that during the time that Korpolinski did not receive work
through Local 91 in 2016 and 2017, he worked directly for contractors for 958.75 hours in
2016, 141.75 hours in 2017, and 739.75 hours in 2018 (through May). In comparison, in
2014, he worked 1637.50 hours and in 2015, he worked 1282.50 hours, with many of those
hours from referrals through Local 91. (GC Exh. 20.)29 Further, the various referral lists do 20
not show how many members were referred by Local 91 or employed directly by employers
in the summer versus the winter. Although he did not inquire about why he did not get work
from Local 91, there is no evidence to support a finding that he knew or should have known
or discovered prior to his conversations with Weipert and Mantell that Respondent stopped
sending him out to work because of his support of Mantell in October 2015.3025
Respondent points out that beginning in June 2016, Korpolinski worked for a non-union
employer, Villani’s Lawn and Landscape. He worked a total of 1083.49 hours for Villani in
2016 and 718.51 hours in 2017. (R. Exh. 12.)31 However, working for a nonunion employer
should not preclude a member from receiving referrals from the Union. 30
35

29 Korpolinski provided uncontroverted testified that prior to his vote against sanctions for Mantell
in October 2015, most of his union hours resulted from referrals, while after that time, he received no
referrals from Local 91.
30 Respondent sought to show through his questioning of Korpolinski that Mantell talked him into
and coached him on what to say in filing his charge allegations in this case. However, it does not
matter how Korpolinski came to believe in July 2017 that Respondent stopped sending him out to
work after October 2015 because of his vote against sanctioning Mantell.
31 Respondent also noted in its brief that Korpolinski’s last day of work for Villani was August 14,
2017, less than a month after he filed his charge, citing Exh. R-12 with GC Exh. 1(a). However,
evidence of his work hours and pay derived from his direct work for union contract employers and
nonunion work hours and pay for Villani goes to any compliance proceedings and not to the merits of
this case. (R. Br. at 5–6).
JD–53-19
23
5. Palladino threatened Korpolinski
Korpolinski described his September meeting with Palladino and Neri with a good
degree of detail.32 He said that Palladino invited him to the front office, and that Neri sat
across from him and Palladino was on his right. He also said that Dominguez sat farther over 5
on the right. As previously stated, he testified that Neri pulled out the referral rules, and
showed him a highlighted paragraph, before they told him how he had worked more than 5
days in a row without contacting them. He testified that Palladino next told him that he
should call the International Union, and that, “I had no rights of contacting you guys or the
N.L.R.B.” (Tr. 562–565.) Korpolinski maintained that Palladino explained that the Local 10
executive board had implemented a rule 6 months prior “that if a union member files false
statements, the member could be reliable (sic) to pay for the lawyer fees—lawyer fees for
false statements.” He recalled Palladino ending their conversation with, “this is how it’s
going down.” (Id.)
15
Palladino denies that he threatened Korpolinski with attorney’s fees if he made false
charges or statements against him. 33 He testified that in June 2017, Neri told him that
Korpolinski was in the Union office wanting to speak to him. However, when he went to talk
to him, Korpolinski had left. Palladino said that Korpolinski did the same thing about 3 days
later. Palladino said that he did not speak to Korpolinski until a later (unspecified) date when 20
he ran into him in the union office. He testified that he told him that “I just got a charge from
the NLRB,” and asked that “If you had a problem, why didn’t you tell me?” Palladino said
that Korpolinski repeatedly denied having filed a NLRB charge. When asked on direct in
leading fashion if he specifically threatened him with having to pay attorney’s fees if he went
to the NLRB, Palladino responded, “[t]hat never happened. I wouldn’t do that.” (Tr. 960.) 25
First, I find that Respondent’s attempt to impeach Korpolinski’s testimony by pointing
out an inconsistency in his testimony and Board affidavit fails. The terms “charges” used in
his Board affidavit and “statements” used in his testimony is are so similar in the context of
this case that they do not diminish Korpolinski’s credibility. Since Neri was not questioned 30
about his role in this conversation, we are left with Korpolinski’s testimony and statement as
to what Palladino told him and Palladino’s denial. Here, I credit Korpolinski’s testimony over
that of Palladino. His testimony regarding this encounter was more direct, detailed and
convincing. On the other hand, Palladino’s testimony that he did not threaten Korpolinski
with attorney’s fees is not believable given his admission that he brought up the fact that 35
Korpolinski had filed a Board charge and asked him, “if [he] had a problem, why didn’t you

32 In his second charge dated October 11, 2017, and filed on October 12, 2017,
Korpolinski alleged that in September 2017, and continuing thereafter, the Union violated the
Act “by threatening to sue him to recover legal fees in retaliation for filing charges with the
Board.” (GC Exh. 1(c).) Therefore, his charge supports Korpolinski’s later recollection that
he met with Palladino and Neri in September 2017.
33 Palladino admits that Korpolinski was kept off the list because he had not contacted the Union
about his contract work with Scrufari; however, Neri was not questioned regarding this conversation.
Respondent’s counsel attempted to impeach Korpolinski’s testimony by showing that in one of his
Board affidavits, he used the term “false charges” instead of “false statements.” (Tr. 648, 651, 653.)
However, I find that these terms are so similar in context that they do not diminish Korpolinski’s
credibility.
JD–53-19
24
tell me?” Palladino merely denied having threatened Korpolinski with attorney’s fees if he
made false statements; he did not explain why he was questioning Korpolinski about his
Board charge. Even if Korpolinski denied having filed an NLRB charge, I do not believe that
Palladino brought up his charge out of his concern for any “problem” that he may have had.
Instead, I find that it was more likely than not meant to intimidate. Therefore, I find it 5
believable that he went a step further and told Korpolinski what the consequences would be if
he made false statements or charges in connection with his NLRB claim.34
Analysis
10
1. Korpolinski’s allegations fall within the Board’s jurisdiction
Respondent also argues that Korpolinski’s allegations should be dismissed as
intraunion matters pursuant to the Board's decision in Office Employees Local 251 (Sandia
National Laboratories), 331 NLRB 1417. I reject this argument in relation to Korpolinski for 15
the same reason that I rejected it in Mantell’s case. The Board in Laborers’ Local 91, 365
NLRB No. 28 clarified the scope of Section 8(b)1)(A) “by finding that internal union
discipline may give rise to a violation only if the union’s conduct: (1) affects the employment
relationship, (2) impairs access to the Board’s processes, (3) pertains to unacceptable methods
of union coercion, such as physical violence in organizational or strike contexts, or (4) 20
otherwise impairs polices imbedded in the Act.” Id. I find that the removal of Korpolinksi
from the referral list and refusal to return him to the list interfered with his employment
opportunities and the employer-employee relationship under Section 8(b)(1)(A). Id., citing
Office Employees Local 251 (Sandia National Laboratories), 331 NLRB 1417 (2000).
Therefore, his allegations fall within the Board’s jurisdiction. 25
2. Section 10(b)
I will also initially address Respondent’s 10(b) defense. Section 10(b) of the Act
provides that “[n]o complaint shall issue based on any unfair labor practice occurring more 30
than six months prior to the filing of the charge with the Board.” It is well established that the
10(b) limitations period does not begin to run until the charging party has “clear and
unequivocal notice,” either actual or constructive, of an unfair labor practice. Castle Hill
Health Care Center, 355 NLRB 1156, 1191 (2010); Ohio and Vicinity Regional Council of
Carpenters, 344 NLRB 366, 367–368 (2005); Broadway Volkswagen, 342 NLRB 1244, 1246 35
(2004); Concourse Nursing Home, 328 NLRB 692, 694 (1999); Leach Corp., 312 NLRB 990,
991 (1993). Actual or constructive knowledge may be ascribed where the conduct was
“‘sufficiently ‘open and obvious’ to provide clear notice” and/or where the party would have
discovered the violation had it exercised reasonable diligence. See Ohio and Vicinity, above
at 367–368; Duke University, 315 NLRB 1291 fn. 1 (1995). See also Phoenix Transit System, 40
335 NLRB 1263 fn. 2 (2001) (charging party was “on notice of the facts that reasonably

34 This is not the first time that an administrative law judge credited a charging party’s testimony
that Palladino threatened a member with internal union charges if he filed charges with the Board.
See Laborers’ International Union of North America, Local Union No. 91 (Scrufari Construction Co.,
Inc.), Case 03-CB-196682, JD-98-17, 2017 WL 6349846 (Dec. 11, 2017).
JD–53-19
25
engendered suspicion that an unfair labor practice occurred,” and could have been discovered
by exercising due diligence); United Kiser Services, 335 NLRB 319, 320 (2010).
I reject Respondent’s argument that Korpolinski’s claim that Respondent refused to
refer him out to work since November 2015 is barred by Section 10(b). Respondent accuses 5
Korpolinski of “mak[ing] a veiled attempt to escape the time limits of 10B,” to have the judge
believe that “it only dawned” on him, when he spoke to Weipert, almost 2 years later, that the
Union had not been referring him out to work because of his October 2015 membership vote.
Respondent insists that Korpolinski’s case is time barred because if there was an unfair labor
practice, Korpolinski knew or should have known about it when he did not receive referrals 10
from the Union in 2016 or at the latest in mid-2017 when work presumably picked up in the
warmer months. Respondent further asserts that since Korpolinski was a member who
regularly visited the hall, viewed the list and re-registered for the list, he had “‘the means of
discovery in his power’ to discover the alleged unfair labor practice, and possessed
‘knowledge of the facts necessary to support a ripe unfair labor practice.’” (R. Br. at 13–14, 15
citing St. Barnabas Medical Center, above at 1127.)
The General Counsel argues that Respondent’s defense is without merit, because
Respondent has not shown that Korpolinski had “clear and unequivocal” notice of a violation
before his conversation with Weipert regarding his being “blackballed,” in conjunction with 20
his conversation with Mantell who told him that his name had not been on the referral list. I
agree with the General Counsel that in the nonexclusive hiring hall context, Respondent’s
unlawful conduct was not open and obvious such that the Union would have been likely to
inform Korpolinski had he asked that it had been intentionally bypassing him on the referral
list because of his support of Mantell. Moreover, within Local 91’s hiring hall, where 25
Palladino appears to have nearly unbridled control over determining how members are
selected, without regard for the boundaries set by the referral rules or a member’s position on
the out-of-work referral list, I find that Korpolinski did not have the “means of discovery in
his power” to find out about the potential violation. This is not like the case of an empowered
union with access to certain pension fund contribution information that would have 30
“engendered suspicion” that an unfair labor practice had occurred. See e.g. Castle Hill Health
Care Center, above. Further, within the Local 91 hiring hall environment, where members
were permitted to and did solicit and receive work directly from contract employers, outside
of the referral process, it would have been difficult for Korpolinski to discern the reasons why
Respondent had not been selecting him from the referral list. This was certainly the case 35
where Korpolinski received work directly from union employers in 2016 and 2017, in
conjunction with his nonunion work.
For these reasons, I find that Respondent has not met its burden of showing that
Korpolinski’s “clearly and unequivocally knew” of a violation before July 2017, and that his 40
allegation here is time barred.
45
JD–53-19
26
3. Respondent violated the Act by failing to refer Korpolinski from its out-of-work
referral list from November 2017 and thereafter
As shown, it is undisputed that Respondent continuously stopped referring
Korpolinski from the out-of-work job referral list after his October 2015 vote. I find this 5
action was taken unlawfully in retaliation for his protected activity.
The analytical framework set forth in Wright Line, above, is also applicable here. See
Teamsters Local 657 (Texia Productions), 342 NLRB 637, 637 fn. 1 (2004). The General
Counsel must establish that Respondent’s decision to take adverse action was motivated, at 10
least in part, by animus against Korpolinski’s protected activity. In doing so, the General
Counsel must show that he engaged in protected activity; Respondent had knowledge of the
protected activity; and that his protected activity was a motivating factor in Respondent’s
decision to take adverse action against him. If the General Counsel establishes a prima facie
case, then the burden shifts to Respondent to prove that it would have taken the same action 15
even in the absence of Korpolinski’s protected activity. See e.g., Libertyville Toyota, 360
NLRB 1298, 1301 (2014), enfd. Sub nom. AutoNation, Inc. v. NLRB, 801 F.3d 767 (7th Cir.
2015); Willamette Industries, 341 NLRB 560, 563 (2004). If the record demonstrates that
Respondent’s proffered reasons are pretextual, “either false or not in fact relied upon—
[Respondent] fails by definition to show that it would have taken the same action for those 20
reasons, absent the protected conduct.” Golden State Food Corp., 340 NLRB 382, 385
(2003), citing Limestone Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir.
1982).
Factors which may support an inference of animus include the timing of the adverse 25
action in relation to the protected activity, other unfair labor practices committed,
respondent’s reliance on pretextual or shifting reasons to justify the adverse action, disparate
treatment of members based on protected activity and a respondent’s deviation from past
practice. See Case Farms of North Carolina, Inc., 353 NLRB 257 (2008), citing Robert
Orr/Sysco Food Services, 343 NLRB 1183, 1184 (2004), enfd. Mem. 184 Fed Appx. 476 (6th30
Cir. 2006).
As previously stated, the Board has long held that denying a member a referral in
retaliation for participation in protected activities is unlawful. Teamsters Local 460, 300
NLRB 441, Note 1. This includes failing to assist members in obtaining jobs in retaliation for 35
protected activity. Carpenters Local 537, 303 NLRB 419. The Board in Laborers’ Local 91,
above, found that Mantell’s activity leading up to and during the October 2015 membership
vote to sanction him was protected. Therefore, I find that Korpolinski’s public vote against
Union leadership’s recommendation for sanctions against Mantell and his Board activity are
protected. I also find that Respondent was fully aware of Korpolinski’s protected activity. In 40
fact, Palladino made it known to Korpolinski that he had seen his Board charge. I discredit
Palladino’s testimony that he was not aware of how Korpolinski voted. Since Palladino was
present during the October 11, 2015 membership meeting, I find it unbelievable that he did
not witness the four members, including Korpolinski, out of 70 members, who raised their
hands to vote no against fining and suspending Mantell. It is even more implausible that 45
Palladino was oblivious to Korpolinski’s vote, since his name, along with the others who
supported Mantell, was memorialized in writing in the minutes of the October 2015 meeting.
JD–53-19
27
(GC Exh. 18.) In fact, evidence indicates that Palladino rejected one of those members’
request for a secret ballot vote.
I find that Respondent intentionally bypassed Korpolinski when it referred members
out to contract employers after October 2015 because of his vote in support of Mantell. First, 5
Respondent’s motivation is evidenced by its departure from referring Mantell from the out-of-
work list after that fateful meeting. Second, motivation or animus is evident from the multiple
unexplained and under explained incidents where Respondent selected laborers who were
positioned below Korpolinski on the referral lists. On numerous occasions, as pointed out
above, there was no evidence that the members who were called and referred in response to 10
employer requests for general laborers were more qualified than Korpolinski. To the
contrary, the overwhelming evidence supports a finding that Korpolinski was as qualified for
most of the laborer jobs as those selected. However, he was passed over (and apparently not
even considered) for members who were placed below him on the relevant referral lists. I
reject Respondent’s reasoning that Respondent did not violate the Act because it treated 15
Korpolinski similarly to members above him on the referral lists given Palladino’s inability to
explain why Korpolinski was never considered, called or selected. Palladino’s pat and
blanket testimony that he did not discriminate against him because of protected activity is
insufficient. Although Korpolinski was never shown as number one on a list, he was not even
called to be given the opportunity to reject a job as others were when he was near the top of 20
the list. Further, Respondent’s argument that Local 91 was aware of Korpolinski’s outside
employment (with nonunion employers) with Villani landscaping, in addition to the work he
obtained directly with contract employers does not pass muster. There is no evidence that
Respondent refused to refer other members who obtained outside work or work directly with
contract employers. In fact, Palladino testified on numerous occasions that he referred 25
members because they had previously received work directly from contract employers.35
Thus, I find that the record is replete with evidence of disparate treatment in support of a
finding of animus against Korpolinski’s protected activity.
Other evidence of animus includes Respondent’s departure from Local 91 practice and the 30
referral rules. The job referral rules state in the preamble and Section 1 that they “shall be
adopted and implemented by each LIUNA Local Union” and that “[r]eferrals to jobs shall be
on a nondiscriminatory basis and shall not be based, or in any way affected by…lawful union-
related activity.” (GC Exh. 5.) As set forth above, the rules list specific exceptions for
referring members out of order from the referral list. (Id.) However, Palladino often ignored 35
these exceptions, making up its own rules. For example, Palladino testified that he considered
members’ personal problems such as divorce, drinking habits, risk of losing medical coverage
and financial hardship. This is admirable, except that he never afforded such consideration to
Korpolinski when he only had 141 hours of work in n 2017, making him ineligible for
medical benefits. 40

35 The exception would have been if they were “currently employed at the trade” during the time a
request for laborers was made, or if they were otherwise unavailable. There is evidence that even
under those circumstances, some members positioned below Korpolinski on the lists were
considered/called and at least afforded the opportunity to decline the offer.
JD–53-19
28
Respondent’s animus is also shown by Respondent’s subsequent and contemporaneous
pretextual and unlawful actions in refusing to place Mantell back on the referral list as
described above, and by failing to refer Korpolinski from the list and by threatening him with
potential legal action as shown below. Therefore, the General Counsel has clearly established
a prima facie case. Moreover, I find the evidence shows that Palladino conveniently hid 5
behind his ability to control Local 91’s job referral process and create his own exceptions to
the referral rules as a pretext in this case for not selecting Korpolinski from the referral list in
violation of the Act. Accordingly, for these reasons, I find that Respondent has not met its
burden of showing that it would have acted in the same manner in the absence of
Korpolinski’s protected activity. Moreover, Respondent’s interest in removing Korpolinski 10
from the referral list under pretext for discrimination does not outweigh his Section 7 rights.
4. Respondent violated the Act by removing Korpolinski from its out-of-work
referral list
15
For the same reasons stated above, I find that Respondent, under the applicable Wright
Line standards, violated the Act when it removed Korpolinski from the out-of-work job
referral list in June and July 2017 and thereafter. Respondent was aware of that activity and
exhibited animus when it unlawfully discriminated against Korpolinski. Respondent, by
Palladino, continued to unlawfully show animus and discipline Korpolinski when he removed 20
Korpolinski from the out-of-work referral list and failed to return him to the list or provide
him with a mechanism to do so.
Respondent also departed from its practice and referral rules when it disciplined
Korpolinski by removing him from the referral list for such an extended period. As 25
previously discussed, the International Union had advised Palladino that in all cases where the
rules called for a member to be removed from the out-of-work referral list, the member was to
be returned to the bottom of the list once he or she completed the job and re-registered to be
placed on the list. (GC Exhs. 5, 19). I credit Korpolinski’s testimony that he notified Local
91 that he was working for Scrufari in July 2017. 30
I find that Palladino’s explanation that he removed Korpolinski from the referral list
because he did not tell them he had been working for Scrufari is pretextual. Palladino not
only failed to return him to the list, he did not tell the truth about Korpolinski’s removal.
Respondent claims that Korpolinski violated referral rule 3C; however, the evidence reveals, 35
as previously stated, that other members were not removed from the list when they went to
work for contract employers without apparently notifying Local 91. In fact, Palladino
testified that he really did not even pay attention to the list or care about receiving such
notifications from employers or otherwise. Further, animus and pretext are shown by other
evidence described in this decision. Thus, I find that Respondent has not shown in connection 40
with this allegation that but for Korpolinski’s protected activity, it would have still removed
him from the referral list continuously from June 5 through November 21, 2017.
5. Respondent violated the Act by threatening Korpolinski
45
Since I have credited Korpolinski’s version of the conversation between he and
Palladino and Neri at the Union office in August/September 2017, I find that the threat of
JD–53-19
29
penalizing Korpolinski with attorney’s fees if he made false statements or charges in
connection with his protected Board charges is unlawful. See Teamsters Local 391 (UPS),
357 NLRB 2330, 2330–2331 (2012). Such an unlawful threat would reasonably “[impair]
access to the Board’s processes,” therefore bringing this final allegation under the jurisdiction
of the Act. Office Employees Local 251 (Sandia National Laboratories), 331 NLRB 1417, 5
1418–1419.
CONCLUSIONS OF LAW
1. Respondent, Laborers’ Local Union Number 91, violated Section 8(b)(1)(A) of 10
the Act by refusing to place Charging Party, Frank S Mantell, on its out-of-work referral list
from November 20, 2017, to January 19, 2018.
2. Respondent, Laborers’ Local Union Number 91, violated Section 8(b)(1)(A) of
the Act by refusing to refer Charging Party, Duane Korpolinski, from its out-of-work referral 15
list from November 1, 2015, and thereafter.
3. Respondent, Laborers’ Local Union Number 91, violated Section 8(b)(1)(A) of
the Act by removing Charging Party, Duane Korpolinski, from its out-of-work referral list
from June 2, 2017 and continuing thereafter, and from July 10, 2017, and continuing until 20
November 21, 2017.
4. Respondent, Laborers’ Local Union Number 91, violated Section 8(b)(1)(A) of
the Act by threatening Charging Party, Duane Korpolinski, that it would sue him to recover
legal fees if he made false statements or charges in connection with this pursuing this case. 25
5. By the unlawful conduct committed by the Respondent, the Respondent has
engaged in unfair labor practices affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
30
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having found that the Respondent violated 35
Section 8(b)(1)(A) of the Act by refusing to place Charging Party, Frank S Mantell, on its out-
of-work referral list from November 20, 2017, to January 19, 2018, I shall order the
Respondent to make Mantell whole for any loss of earnings and other benefits suffered as a
result of the unlawful discrimination against him. In addition, having found that the
Respondent violated Section 8(b)(1)(A) of the Act by refusing to refer Charging Party, Duane 40
Korpolinski, from its out-of-work referral list from November 1, 2015, and thereafter and
removing him from its out-of-work referral list from June 2, 2017, and continuing thereafter,
and from July 10, 2017, and continuing until November 21, 2017, I shall order the
Respondent to make him whole for any loss of earnings and other benefits suffered as a result
of the unlawful discrimination against him. Backpay for the Mantell and Korpolinski shall be 45
computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the
JD–53-19
30
rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB 6 (2010).
In addition, I shall order the Respondent to compensate Mantell and Korpolinski for
any adverse tax consequences of receiving a lump-sum backpay award and to file with the 5
Regional Director for Region 3, within 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating the backpay award to the appropriate
calendar year. AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016).
The Respondent shall post an appropriate informational notice, as described in the 10
attached Appendix. This notice shall be posted in the Respondent’s offices or wherever the
notices to members are regularly posted for 60 days without anything covering it up or
defacing its contents. In addition to physical posting of paper notices, notices shall be
distributed electronically, such as by email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily communicates with its members by 15
such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material. When the notice is issued to the
Respondent, it shall sign it or otherwise notify Region 3 of the Board what action it will take
with respect to this decision.
20
Further, the Respondent shall be required to remove from its files any reference to the
removal of Korpolinski from its out-of-work list, and notify him in writing that this has been
done and that his removal from the list will not be used against him in any way. Respondent
shall also notify Duane Korpolinski in writing that it will make employment referrals
available to them in their rightful order of priority, without regard to his exercise of Section 7 25
rights.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended36
30
ORDER
The Respondent, Laborers’ International Union Local 91, Niagara Falls, New York, its
officers, agents, and representatives, shall
35
1. Cease and desist from
(a) Refusing to place Frank S. Mantell or other member employees on its
out-of-work referral list in retaliation for activity protected by Section 7 of the Act, including
criticizing the Union or any of its decisions. 40

36 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.
JD–53-19
31
(b) Refusing to refer Duane Korpolinski or other member employees from
its out-of-work referral list for activity protected by Section 7 of the Act, including voting
against internal sanctions for another member.
(c) Removing Duane Korpolinski or other member employees from its out-5
of-work referral list for activity protected by Section 7 of the Act, including voting against
internal sanctions for another member.
(d) Threatening Duane Korpolinski or any member employee that it will
sue to recover legal fees if he makes false statements or charges for activity protected by 10
Section 7 of the Act, including voting against internal sanctions for another member.
(e) In any like or related manner restraining or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
15
2. Take the following affirmative action necessary to effectuate the policies of the
Act.
(a) Make Frank Mantell whole for any loss of earnings and other benefits
suffered as a result of refusing to place him on its out-of-work referral list from November 20, 20
2017, to January 19, 2018, in the manner set forth in the remedy section of this decision.
(b) Make Duane Korpolinski whole for any loss of earnings and other
benefits suffered as a result of refusing to refer him from its out-of-work referral list from
November 1, 2015, and continuing thereafter, in the manner set forth in the remedy section of 25
this decision.
(c) Make Duane Korpolinski whole for any loss of earnings and other
benefits suffered as a result of removing him from its out-of-work referral list from June 2,
2017, and continuing thereafter, and from July 10, 2017, and continuing until November 21, 30
2017, in the manner set forth in the remedy section of this decision.
(d) Notify Duane Korpolinski in writing that it will make employment
referrals available to them in their rightful order of priority, without regard to his exercise of
Section 7 rights. 35

(e) Within 14 days from the date of this Order, remove from its files any
reference to the removal of Duane Korpolinski from its out-of-work referral list, and within 3
days thereafter, notify him in writing that this has been done and that his removal from the list
will not be used against him in any way. 40
(f) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide a reasonable place designated by
the Board or its agents, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including an electronic copy of such 45
records if stored in electronic
JD–53-19
32
form, necessary to analyze the amount of backpay due to Frank Mantell and Duane
Korpolinski under the terms of this Order.
(g) Compensate Frank Mantell and Duane Korpolinski for any adverse tax
consequences of receiving a lump-sum backpay award and to file with the Regional Director 5
for Region 3, within 21 days of the date the amount of backpay is fixed, either by agreement
or Board order, a report allocating the backpay award to the appropriate calendar year.
(h) Within 14 days after service by the Region, post at its hiring hall in
Niagara Falls, New York copies of the attached notice marked “Appendix.”37 Copies of the 10
notice, on forms provided by the Regional Director for Region 3, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and maintained for
60 consecutive days in conspicuous places including all places where notices to members are
customarily posted. In addition to physical posting of paper notices, the notices shall be
distributed electronically, such as by email, posting on an intranet or an internet site, and/or 15
other electronic means, if the Respondent customarily communicates with its employees by
such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material. In the event that, during the pendency
of these proceedings, the Respondent has gone out of business or closed the facility involved
in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of 20
the notice to all current employees and former employees employed by the Respondent at any
time since November 1, 2015.
(i) Within 14 days after service by the Region, sign and return to the
Regional Director sufficient copies of the notice for physical and/or electronic posting by any 25
employers to whom referrals were made between November 1, 2015 and the date of this
Order, if willing, at all places or in the same manner as notices to employees are customarily
posted.
(j) Within 21 days after service by the Region, file with the Regional 30
Director a sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.
Dated, Washington, D.C. June 28, 2019
35
Donna N. Dawson
Administrative Law Judge40

37 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to
a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
/40A.w
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf with your employer
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT refuse to place Frank S. Mantell or other member employees on its out-of-
work referral list in retaliation for activity protected by Section 7 of the Act, including
criticizing the Union or any of its decisions.
WE WILL NOT refuse to Duane Korpolinski or other member employees from its out-of-
work referral list for activity protected by Section 7 of the Act, including voting against
internal sanctions for another member.
WE WILL NOT remove Duane Korpolinski or other member employees from its out-of-work
referral list for activity protected by Section 7 of the Act, including voting against internal
sanctions for another member.
WE WILL NOT threaten Duane Korpolinski or any member employee that it will sue to
recover legal fees if he makes false statements or charges for activity protected by Section 7
of the Act, including voting against internal sanctions for another member.
WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL make Frank Mantell whole for any loss of earnings and other benefits suffered as a
result of refusing to place him on its out-of-work referral list from November 20, 2017, to
January 19, 2018, in the manner set forth in the remedy section of this decision.
WE WILL make Duane Korpolinski whole for any loss of earnings and other benefits
suffered as a result of refusing to refer him from its out-of-work referral list from November
1, 2015, and continuing thereafter, in the manner set forth in the remedy section of this
decision.
WE WILL make Duane Korpolinski whole for any loss of earnings and other benefits
suffered as a result of removing him from its out-of-work referral list from June 2, 2017, and
continuing thereafter, and from July 10, 2017, and continuing until November 21, 2017, in the
manner set forth in the remedy section of this decision.
WE WILL notify Duane Korpolinski in writing that it will make employment referrals
available to them in their rightful order of priority, without regard to his exercise of Section 7
rights.
WE WILL within 14 days from the date of this Order, remove from its files any reference to
the removal of Duane Korpolinski from its out-of-work referral list, and within 3 days
thereafter, notify him in writing that this has been done and that his removal from the list will
not be used against him in any way.
LABORERS’ LOCAL UNION NO. 91
(Labor Organization)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions.
To find out more about your rights under the Act and how to file a charge or election petition, you
may speak confidentially to any agent with the Board’s Regional Office set forth below. You may
also obtain information from the Board’s website: www.nlrb.gov
Niagara Center Building, 130 S. Elmwood Avenue, Suite 630, Buffalo, NY 14202-2465
(716) 551-4931, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/03-CB-202698 or by using
the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary,
National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE
OFFICER (518) 419-6669.