Laborers Local No. 282

National Labor Relations Board - Board Decisions

May 31, 1978

236 N.L.R.B. 621 (N.L.R.B. 1978)

LABORERS. LOCAL NO. 282
Laborers International Union of North America, Local
No. 282, AFL-CIO (Millstone Constnmction Com-
pany, et al.) and Jimmy C. Bollinger. Case 14 CB
3258
Max 31. 1978
DECISION AND ORDER
By C(IAIRMAN FANNING ANI) MtI MstRS JI: NKINS
ANI) Mt RPIIY
On September 12. 1977, Administrative Law Judge
Marvin Roth issued the attached Decision in this
proceeding. Thereafter, both the General Counsel
and Respondent filed exceptions and supporting
briefs and Respondent filed a response entitled "Mo-
tion to Dismiss Counsel for the General Counsel's
Exceptions to Administrative Iaw Judge>'s I)eci-
sion." I
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,. and
the conclusions 3 of the Administrati e Law Judee. to
modify his remedy .4 and to adopt his recommiendeld
Order.
i Respondcnt' nlotlion to dismiss the (;enerl ( ountel s eicpla is de-
nied, hll said mo llon has been ireated a.: iin ans. esrin brief
Ihe (;cneral C(ounsel has excepted ti cerltain cred hilihp Ilidin'c mnade
h s the Ndirinlstratlse I la Judlge. T is the BoaHrd's esltablhshed pohlics ot to
overrule an Admilnlsrati e I aw Judege' resolution, with relpecL to rredi-
hilit, unless the clear preponderalti e of all of the relea.ini e IdcC icnn tin c
es us that the resolutlens .ale incitrrect .S'lntrldrd 1)r 1i tI11 Prdt nrt. Irp, 91
NLRB 544 (l9Sl), crffd 18 F 2d 302 c 'A 3. 51) 1i Ae h.ir'e ;lrefull
examined the record and lind no hal
s
for rexersig hi, filidings
lMemher tenkins Inlaccord with the Board's dcllion in lai , nl l trl .I
1'4. t1,litrier fliteral Bc1cr1~ ,'lI. ' 226 NiRH tlo i {11't6). s;ould find
Ihat Respondent's operatlion of ti esxthisie referral ssienm ulthollut an\
(ihijectlie criteria for the referral of emnplosees Ii.latel Sec shib I iAt aInd
t2) of he Act and that the opetaiaon of the dlstrriltiiallts refeirral s)Tent
was one of the reaslons ft r Resp1idtiCnl's fiilure to reler allepcd dlscrinirlnl-
tees liendlriix, Necisir and icnro e. , cordincls, Membeihr Jcnikins
uould find further Ihat said failure ..as lisctilrniialt rs% a.ld In \ Illlion iof
Sec 8ht)( I( IAl ;iaand 2i lf the Act
('hlirman Fa;nning arnd Member Mutrphs agree .ih the kdSitinrstrat.ie
I ;a Juidge ihat Ihe t eider e fails Io estab lish that Re.,prinderlt's I.ilure If
;ns, to refer Ilendrix, Nconrermn. ;llnd Penrtose ais aI rctull of tile nl:lnner In
which Ihe hiring hail was operated or that at lesl with respect ti Peil-
rose there wa s ans failure to( refel
I he Adminisir.tirse .aw Judge in.ldxertentl specified Interest to he
paid at 7 percent: howeser. interest ill hbe calcui.lted a.ckt.rding i tilhe
"adjusted prime rate" uised bh the I S Ilnlcrnall Recllucl Ser i ce for interest
on tax pamellnts. See ]-it Plunth;mli, d Ilaltirn ( . 138 Nl RH 710 l9h2).
for ration.ale firn Icterest pIlanienls
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Laborers International
Union of North America, Local No. 282, AFL-CIO,
Cape Girardeau, Missouri, its officers, agents, and
representatives, shall take the action set forth in the said
recommended Order.
DECISION
STATEMENT OF THE CASE
MAR':lI Ro7H. Administrative Law Judge: This case was
heard at Cape Girardeau, Missouri, on various dates from
August 30 through December 23, 1976. The charge was
filed on June 2, 1976. by Jimmy G. Bollinger, an individ-
ual. The complaint. which issued on July 29, 1976, and was
amended on August 17 and 19 and October 8, 1976, and at
the hearing, alleges that Laborers International Union of
North America, Local No. 282, AFL-CIO (herein the
Union or Respondent), violated Section 8(b)(1)(A) and (2)
of the National labor Relations Act, as amended. The gra-
vamen of the complaint, stated succinctly, is that, at all
times material, the Union has allegedly operated its hiring
hall in a discriminatory manner. More specifically, the
complaint alleges that at various times since on or about
December 2, 1975, the Union has refused and is refusing to
refer Don Bollinger. Jim Bollinger, Ernest Brown, Leonard
Daniels. James Harper. Shirley Hawkins, Don Hendrix,
Owen Innis. William Miller, Billy Mansell, Norman Morill,
Dasie Newcomer, Willard Null, William Penrose, Jr.,
Rickv Pobst, Bob Sachse. Joe Sachse, Mike Sachse, Wil-
liam L.eon Stricklin. Jack Tomlin, and Earl Waterman to
various employers who are parties to exclusive hiring hall
arrangements with the Union, because of unfair, arbitrary,
irrelevant, and invidious reasons, including nepotism. fa-
voritism, and the likes and dislikes of the Union's agents.'
The Linion's answer, as amended, denies the commission
of the alleged unfair labor practices, and raises certain af-
firmative defenses.2 All parties were afforded full opportu-
nity to participate, to present relevant evidence, to examine
and cross-examine witnesses, to argue orally, and to file
bnefs.
Upon the entire record in this case 3 and from my obser-
I-;rl \natcrman testilied that he was laid off from a laborer's job on or
aboul Januars 12. 19b.t and registered with the Union for work. but shortly
thereafter informed :nion President KelleN that he had obtained emplo)-
menl running heas, equipment, and would let Kelley know when he was
ai.s.ilhle foIr rferral Wat.ermain was still so employed when he testified at
tihe he.ariig In xiew of 3ratetrman's testimons. General Counsel. In its brief.
hai mi,\ed f1Ir perml, sin to withdraw Waterman's name from the list of
allicd diiciimninatees in Ihe pleadings. The motion is hereby granted.
l .I the hea;riig. I granted General Counsel's motion to strike the asserted
defenses .f r iudlita.ll estoppel. laches, and unclean hands, and I reserved
decision n the nmliion insofar ;is it was addressed to the Union's contention
that the compl.int w;as barred hb the time limitation of Sec. 10hb) of the
Act As indicated. tnra. I havre found that Ihe Union's contention Is without
merilt
Errors iii the trans ciipt have been noted and corrected.
236 NLRB No. 70
621
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vation of the demeanor of the witnesses, and having con-
sidered the briefs submitted by General Counsel and by
the Union, I make the following:
FINDINGS OF FACT
I THE RESPONDENT UNION AND ITS AGENTS
The Union, which maintains its office and hiring hall in
Cape Girardeau, Missouri, is a labor organization within
the meaning of Section 2(5) of the Act. Pursuant to its
charter, the Union has territorial jurisdiction over laborers'
work in 12 counties of Southeastern Missouri. Paul Menz is
business manager and financial secretary-treasurer, and
functions as the Union's chief officer. Fred Kelley is presi-
dent and business representative. Both have served in their
respective capacities for about 18 years, Menz having ap-
pointed Kelley as business representative shortly after
Menz took office. Thereupon Kelley was elected president.
Together, Menz and Kelley administer the Union's collec-
tive-bargaining functions, including operation of its refer-
ral system. Generally, Kelley handles jobs in the northern
portion of the Union's jurisdiction, and Menz handles
those in the southern portion. Each appoints job stewards
and foremen, the latter pursuant to collective-bargaining
contracts or arrangements with employers. Both issue re-
ferral slips. Dean Hency is an employee of the Union ap-
pointed by Menz, and for 17 years has functioned as the
Union's bookkeeper. Hency is responsible for maintaining
the Union's referral list, such as it is. Hency has authority,
subject to the direction and instructions of Menz and Kel-
ley, to solicit and refer applicants or employees for employ-
ment through the Union's referral system. Menz, Kelley,
and Hency are each agents within the meaning of Section
2(13) of the Act, and have been and are now agents of the
Union acting on its behalf.
II. THE BUSINESS OF THE EMPLOYERS INVOLVED
Babcock and Wilcox (B & W Construction Company),
John F. Beasley Company, B. W. Birk Plumbing, Heating
and Cooling, Buckley Construction Company, James H.
Drew Corporation, Fruin-Colnon Construction Company,
Israel Brothers Inc., Kiefner Brothers Inc., McCarthy
Brothers Company, Millstone Construction Company,
Penzel Construction Company, Potasnick Construction
Company, Statler Masonry, Inc., and Tobin Construction
Company (herein respectively B & W, Beasley, Birk,
Buckley, Drew, Fruin-Colnon, Israel, Kiefner, McCarthy.
Millstone, Penzel, Potasnick, Statler, and Tobin), are con-
tractors or subcontractors in the building and construction
industry, and, at times material, were engaged in opera-
tions at various projects within the Union's jurisdictional
area.4 As employers in the building and construction in-
dustry, all are employers engaged in commerce or in an
industry affecting commerce within the meaning of the
4 Another employer, Brooks Erection Company therein Brooks) was
named in the conmplaint; however. in its brief. General Counsel does not
contend, in light of the ex idence adduced at the hearing. that there were ans
discriminatory refusals t,) refer employees to Brooks.
Act. N.L.R.B. v. Denver Building and Construction Trades
Council, et al., 341 U.S. 675, 683-684 (1951); Local 20,
Sheet Metal Workers International Association, AFL-CIO
(Bergen Drug Company, Inc.), 132 NLRB 73 (1961).
The complaint alleges and the answer admits that Mill-
stone and Tobin (the Employers named in the original
complaint), in the course of their respective operations,
each annually receives at its Missouri jobsite locations pe-
troleum products and other goods and materials valued in
excess of $50,000 which are shipped indirectly from States
other than Missouri. Millstone, Tobin, Beasley, Drew, Is-
rael, Penzel, and Potasnick are members of Associated
General Contractors of Missouri (herein AGC), a multiem-
ployer bargaining association which is the collective-bar-
gaining agency for its contractor members who employ la-
bor at highway, bridge, and heavy construction jobsites,
(excluding building construction). By virtue of their mem-
bership in AGC, the named Employers are, and have been
at all times material, parties to a collective-bargaining con-
tract between AGC and the Union covering such labor.
For the purposes of the Board's jurisdictional standards,
AGC and its members constitute a single employer.
B & W, Brooks, Buckley, Birk, Kiefner, McCarthy, Pen-
zel, and Statler, are, or were at times material to this case,
employer signatories to a standard collective-bargaining
contract with the Union covering labor at building and
construction projects other than those covered by the AGC
contract. The contract effective from 1973 to May 15,
1976, and the contract effective since that date are herein
referred to respectively as the "old B & C contract" and
the "new B & C contract." The contracts were executed
pursuant to collective bargaining in a multiemployer unit.
Alberici-Fruin-Colnon, a joint venture, and Blount Broth-
ers Construction Company (Blount) were and are similarly
parties to both contracts. In a related case, to be discussed
herein, the Board found that the operations of Alberici-
Fruin-Colnon met its inflow commerce standard. Fruin-
Colnon, the remaining employer named in the complaint,
is signatory to a national multiemployer collective-bargain-
ing contract with the Laborers International Union, the
terms of which are incorporated by reference in a contract
with the Union. The national contract, known as the Na-
tional Constructors Association Contract, is identical in all
material respects with the provisions of the old B & C
contract. In a second related case, also to be discussed
herein, the Board found that Fruin-Colnon met the inflow
standard. I find that the operations of all of the Employers,
either individually or collectively, meet the Board's inflow
standards for nonretail enterprises, and that it would effec-
tuate the purposes of the Act for the Board to assert its
jurisdiction in this case. Local 3, International Brotherhood
of Electrical Workers, AFL-CIO (Atlas Reid. Inc.), 170
NLRB 584, 585 (1968). 5
Moreover, General Counsel is alleging, In essence. that the Union en-
gaged in a pattern of conduct which was not limited to the operations of any
single employer or group of employers. Consequently. it would effectuate
the policies of the Act to assert jurisdiction over the entire case. even as to
the operations of employers, if any. who do not meet an) commerce stan-
dard International Brotherhood of Electrical Wobrkers. Ioral Inion 379 (Fast-
buoh Electrric Co.). 230 NLRB ,626 (1977L. Compare Madison Building &
(on.rruclion Trades Council. et as (H & K Larthing ( o i. 134 NL RB 517
t1961h).
622
LABORERS. LOCAL NO. 282
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Union 's Referral Agreements and the History of
Related Litigation
The referral provisions of the AGC and B & C con-
tracts are, except as indicated herein, substantially the
same insofar as relevant to this case. The contracts cover,
in sum, all general and semi-skilled labor. Article III of the
AGC contract, governing the hire and transfer of employ-
ees, provides that the Union must be notified of the Em-
ployer's manpower needs and employment opportunities.
At the prejob conference, the Employer must outline the
probable number and qualifications of employees needed,
and the Union must notify the Employer of the probable
number and qualifications of men available. Thereafter,
the Employer must request referral of applicants from the
Union for all available jobs (whether new or replacement).
The Union must fill the request as soon as possible and if it
does not do so within 24 hours under the AGC contract, or
within 48 hours under the B & C contract, the Employer
may hire from any source. In an emergency, the Employer
may hire employees from any source, but for not more
than a 24-hour period. The Employer may also bring in up
to two men or 25 percent of the laborers work force, which-
ever is greater, including working foremen, and the Union
agrees to give consideration to more, consistent with the
Employer's needs. The Employer may reject or select from
among applicants referred, and may select employees for
reduction in force in a nondiscriminatory manner. In fact,
as found by the Board in Fruin-Colnon Corporation, 227
NLRB 59 (1967), at least some employers have in reality. if
not in form, deferred to the Union in the selection of em-
ployees for layoff,6 and the Union has exercised that power
in a discriminatory manner. Specifically, the Board found,
inter alia, that Union President Kellev discriminatorily se-
lected four employees for layoff, including Owen Innis. be-
cause of his activities on behalf of the dissident movement
in the Union, i.e., because of activities protected by Section
7 of the Act. The Board further found that Kellev selected
a second employee for layoff because he had declined to
contribute through the Union to the United Fund, a third
employee because he had complained about failing to re-
ceive a certain wage premium, and a fourth and highly
qualified employee because the alternative would have
been to lay off Kelley's uncle. The Board further found
that Kelley caused Fruin-Colnon to discharge William
Miller and Joe Sachse because of their activities in the dis-
sident movement.
The Board's findings and conclusions in Fruin-C,,lnon.
supra, and the companion case of .41/herici-Fruin-Colion,
226 NLRB 1315 (1976), are binding in this case. I find that
the Board's findings discussed above, and additional find-
ings discussed infra, are evidentiary of (I ) the Union's ani-
mus towards some of the alleged discriminatees in this
case, (2) its knowledge of the activities of the dissidents, (3)
the arbitrary manner in which the Union has run its refer-
ral system, (4) the Union's proclivity to violate employee
' See also I.ahorers Internaotlio nal l no, ,i orth .4 ler,. a.1 ft. ( 10 L.o,, /a
'.282 tilngl. Ik in. a Joint I t'nrtie, 26h \I. R IB )8 ( 1976h
rights, inter alia, by discriminatorily causing them to lose
employment, and (5) the lack of credibility of Kelley.7 I
find without merit the Union's argument that such evi-
dence cannot be considered if it involves matters which
took place more than 6 months prior to the filing of the
present charge. That argument runs contrary to settled law.
See N. L.R.B. v. Carpenters District Council of Kansas City
and Vicinity, AFL CIO, 383 F.2d 89, 95-96 (C.A. 8, 1967).
Moreover, as discussed, infra, I have found that the IO(b)
period in this case commences at a date earlier than De-
cember 2, 1975.
The AGC contract provides that the Employer shall de-
signate working foremen, and the Union may appoint job
stewards. However, the old B & C contract provided that,
in addition to the stewards, the Union would appoint fore-
men and the general foremen on all jobs of over $2-L'/
million. Under the new B & C contract, the cutoff point is
raised to $3 million. The B & C contract further provides
that there shall be one foreman for every eight men. Al-
though the National Constructors Association contract
does not empower the Union to appoint foremen, the
Union was given the power in its local supplementary con-
tract with Fruin-Colnon Corporation. Fruin-Colnon, supra.
Both the AGC and B & C contracts contain a union-securi-
ty provision which requires union membership on the
8th day of employment. In Alberici-Fruin-Colnon, supra,
the Board found that the Union violated Section 8(b)(l)(A)
and (2) of the Act by causing the Employer to terminate
Bobby Lloyd Jackman (not an alleged discriminatee in the
present case) as general foreman, because of his activities
in the dissident movement, specifically, "because he pro-
moted and circulated a petition challenging Menz and Kel-
ley, and because he announced his candidacy for union
office."
The Union has vigorously enforced its prerogatives un-
der the contracts (sometimes in a discriminatory manner)
and, as found in Fruin-Colnon and Elzinga-Lakin, expand-
ed upon those prerogatives by assuming the power to select
employees for layoff and expanding its power to appoint
foremen. This fact, and the contractual provisions relating
to the prejob conference, 24- or 48-hour period for refer-
rals, and allowance for emergency hiring, renders question-
able any factual basis for the Union's assertion that it was
excused from utilizing a referral list or other systematic
referral procedure because, allegedly. employers frequently
called for help with little or no advance notice. Union Pres-
ident Kelley testified that more than one-third of referral
As to (5). the Administrative Law Judge found, in Fruin Colnon that
Keller w;as not a credible vitnes. The I nion contends that I should not
take this finding Into consideratlion hecause it was allegedly based on un-
controverted evidence adduced bs General Counsel concerning the shootel
iltg incident on October 23, i975 In fact. this was not the basis for the
Administrative Law Judge's finding: rather. the Administrative Law Judge
hased his findiding on an appraisal of Kelle"s testimonN in the unfair labor
practice case hiMoreoser. Kelles and Menz did testifs in a criminal proceed-
ing in the U.S Distrct ( Court ror Ihe Eastern District of Missouri in which,
In part on the ha'ic of the sho.ting incident. the) were convicted of conspir-
ing and acting in furtherance of a conspiracs) to unlawfully interfere with
the rights of Joe Sachse, Owen Innis, and other members to participate in
the dissident Inoienenl. ehe c)nlolctionl were affirmed on appeal Ito the
ighth C ircuit ( ourt of Appeals and like the Borard decisions on this and
o ther matters. is ,c j;udirt .i to ihe ni tiers derided therein i ttllh IS i,rll*r
( ',r (. Gvnrai V.tori ('oup ,40i I. S $58, 569 (19 51)
623
DECISIONS OF NATIONAL l.ABOR RELATIONS BOARD
requests were made at night, i.e., to Kelley or Menz at
home. and that more than 99 percent of these requests were
for the next morning. Kelley and Menz testified that, when
called at home, they did not use the referral list (which was
kept at the union hall), but Kelley added that "I do my
best . . . to send out [union] members." Kelley further tes-
tified that some 10 to 16 times since December 2, 1975.
employers have called the hall, giving only about 2 hours
notice, and that on such occasions he will exercise his dis-
cretion as to whether to use the referral list. However, Kel-
ley and Menz were contradicted by Don Vance, steward
on the Millstone job who, as a witness for the Union. testi-
fied that "you usually get a work order a day or sometimes
two days before you go to work." Kelley and Menz were
further contradicted by testimony of Larry Burford. fore-
man-steward on the McCarthy job and also a union wit-
ness, and bs employer records, some of which will be dis-
cussed in connection with specific referrals. The Union
officials were further impliedly contradicted by Bookkeep-
er Dean IHencv. who testified that he will not refer an em-
ployee without being told to do so by Kelley or Menz, even
if the employer needs help right away, notwithstanding
that Kellev and Menz are frequently in the field and be-
yond contact for periods of time. Menz also testified that
the Union had to resort to extraordinary measures to ob-
tain men for the Kaiser project at New Madrid. because of
the large size of the laborers' complement. However, this
took place long before December 2. 1975. No comparable
hiring took place after that date; indeed, the Union asserts
that there was a shortage of job opportunities during the
period alleged in the complaint. I find improbable Menz'
suggestion that an employer will commence a concrete
pour with an inadequate complement, and then call the
Union in the expectation that it will refer men on 2 hours
notice. Significantly, the Union failed to present a single
employer witness, notwithstanding that man)' of the mat-
ters testified to by the union witnesses, e.g.. urgency of
requests, skills and requests for particular individuals or
qualifications, were matters on which the employers were
knowledgeable. and presumably disinterested potential
witnesses (or actual witnesses called bv General Counsel).
In view of the lack of credibility of the union witnesses.
which was repeatedly demonstrated throughout this pro-
ceeding. and other evidence and considerations which will
be discussed at various points in this Decision, I am not
inclined to c;edit the freewheeling and often contradictors
or inherently implausible testimony of Kelley and Menz
concerning these matters, absent corroboration by other.
more probative. evidence.
B. The Di)sideint Mlovctmeenl and ihe Unlion's Responsc
The activities of the dissident movement in the summer
and fall of 1975. and the Union's response to that move-
ment, are documented in the Board Decisions in Fruin-
Colnon and A lberici-Fruin-Colnon1. I he foregoing facts en-
compass the Board's findings, as supplemented by evi
dence adduced in the present case. In Fruin-Colnon, 227
NLRB at 62 Ihe Judge found as follows:
T he record in these cases reveals that some of the
members of Local 282, including members employed
by Fruin-Colnon. were dissatisfied with the manner in
which the affairs of the local union were being con-
ducted. The dissatisfaction centered in major part on a
past election of union officers and the manner in
which Fred Kelley and Business Manager Paul Menz
were elected to office.8 Sometime in mid-July 1975
[Jim] Bollinger and employees Owen Innis, Joe
Sachse. and William Miller met at the 61 Club and
discussed the possibilities of obtaining a new election
of union officers. Other members of Local 282 em-
ployed by other concerns were also present and, either
at the meeting or as a result of the discussions, Bol-
linger drafted a petition which was duplicated in
about 30 copies and circulated to members on the
Fruin-Colnon and other projects. The petition ex-
pressed dissatisfaction with Kelley and Menz, and
specified six separate reasons why their election to of-
fice was illegal.
TIhe Judge further found that in mid-August 1975 Kelley
told Fruin-Colnon's job superintendent that he was dissat-
isfied with Joe Sachse, Bill Miller. and Owen Innis. that
they were in a tavern blowing their mouths off, and that
the l nion would like to have them laid off, adding that the
employees had been "stirring up bullshit" by shooting their
mouths off at the tavern about how they did not like the
way the Union was being run.
Jim Bollinger. the Charging Party in the present case,
had been a friend, favorite, errand boy, and strong-arm
man for Kelley for several years. He was a union trustee,
and Kelley had appointed him to positions of foreman and
job steward. However. Bollinger underwent a change of
heart and, whether from altruistic motives, personal ambi-
tion, or both, he became a leader in the dissident move-
ment and, subsequently, a principal witness in the various
proceedings against the Union. Kelley, and Menz. How-
ever, he concealed his activities from Kelley. pretended to
remain loyal to the union leadership, and did not disclose
his dissent until the shooting incident on October 23. 1975.
On July 8, 1975. Bollinger and Bill Kitchen placed an ad in
the local newspaper. ' he Southeast Missourian. announc-
ing that on July 11 there would be a union meeting to elect
a business agent and assistant, which would be the first
union meeting in 3 years. Kelley and Menz promptly
placed a reply ad which denounced the July 8 ad as illegal
and false. Kelley asked Bollinger if he knew who had
placed the ad, and Bollinger pretended not to know. Kelley
told Bollinger that "we got some smart [s.o.b.] between us
somewhere," who would be sorry."
I he Board found that during the period from August 25
to October 10, 1975, Kelley, for discriminatory reasons.
caused the transfers and discharge of Miller, and the termi-
nations, inter alia. of Sachse and Innis. The Board found
In1 .4/hrriii ruin-( lm,n the Board rejected the t nion's argument that
the empIloees ; activities were noit protected bh the Act because their chal-
lenge i( the 1974 election (or failure to, coinduct an elecection was untimels
I rg a ilent asr again raised in the present case, and it is rejected
I i d, nnl credit Btdllinger's tetinmln that Iselile threatened to star e the
" ,o" tin death BHilinger Alla nibihlguois Iabhut when thllis alleged state-
nIlli iss made, anld conlradiltors ah,out the ords hich Kelles used
624
LABORERS. LOC Al NO. 282
that Kelley told Bollinger. with reference to Miller and an-
other employee, that "we're getting rid of these sons of a
bitch that's not with us," that he wanted to get rid of
Sachse because of his criticism about how the Union was
being run, and, with reference to the Board's investigation
of Miller's charge. that "we are just going to have to lie like
a bunch of dogs."
The next significant developments took place during the
period from October 21 through 24. 1975. The following is
a composite account of those developments as found in
Fruin-Colnon, 227 NLRB at 67. and -4lhcrici-ruin-('ohllo,
226 NLRB at 1319. 1320:
About September 4, [Bobbhy Jackman had a conversa-
tion with member Dallas Dover about the possibilities
of a new election for officers, and Dover asked Jack-
man if he would run for president or business manag-
er. Jackman agreed that he would think about it. On
October 21. Jackman, I)over and other union mem-
bers met at a tavern in Scott C'it\. Missouri, and
agreed to prepare and circulate a petition calling for a
new election of union officers. Jackman agreed that he
would run for office if the petition resulted in a newa
and fair election.
On the following evening. October 22, Jackman aind
other members of Local 282 met at his home and had
a further discussion about the petition for an election.
A petition was drafted and signed expressing dissatis-
faction with Business Agent Menz and President Kel-
ley. and specified six separate objections to the man-
ner by which Menz and Kelley had been elected to
office in the prior election. About I I p.m., after the
meeting had adjourned. Jackman received a call from
Menz, who stated that he had to talk to Jackman and
would arrive shortly. When Menz drove up, Jackman
entered the car and saw a 38 caliber revolver near
Menz' leg. Menz said, "Bob Jack. what the hell is
going on?" Jackman asked what Menz meant. and the
latter replied, "I heard that you were passing these
petitions around down at the job and getting them
signed." Menz added that he didn't believe it and
thought he would come to Jackman's home and see
for himself. Jackman admitted he was running for
business agent. Menz replied that . . . he had been
good to Jackman. Jackman countered that he had also
been good to Menz, and Menz answered that Jack-
man had better get his running boots on because there
would be an election in 1977 and it would he a hell of
a race. As the two parted company. both expressed
that they harbored no hard feelings.
On the morning of October 23. Joe Sachse and
Owen Innis. accompanied by member Dallas Dover.
visited a construction project in ('ape (iirardeau for
the purposes of soliciting signatures for the petition
for a new election of union officers. The three mem-
bers parked Innis' truck and entered the jobsite. where
they talked to some of the laborers and obtained some
signatures on the petition. During the course of the
visit. Sachse appears to have had an exchange with an
individual named John Cason. and Sachse, Innis. and
Dover left the site soon thereafter. As thev neared In-
nis' truck. Fred Kellev started to walk toward them
carrying a baseball bat under his arm. The members
hurried into the truck, but found that one tire was flat.
Nevertheless, the, drove off toward a service station,
but as they departed Kelly threw the baseball bat and
hit the top of the truck. As they neared a service sta-
tion located at some distance Sachse observed that
they were being followed by a red Cadillac driven by
Paul Menz. As Menz passed Innis' truck, Fred Kelle\
stuck his hand out from the Cadillac and fired shots
from a revolver at the truck. Sachse saw Kelley fire
two shots, heard three. and later examination of the
truck revealed that it had been hit three times. The
Respondent L nion presented no testimony to rebut or
refute the evidence of the assault and violence perpe-
trated by Fred Kelle, and Paul Menz on October 23.
I'he Board found that the Union violated Section
8(l( I )(A) of the Act bh the assaults and acts of violence
perpctrated by Kellex and Menz on October 23, and the
salme events were encompassed b) the criminal conviction
discussed. upgra. I'hat same day. Jim Bollinger left the
Fruin-Colnon project, and six other employees who sup-
ported the dissident movement. including Wiliam Stricklin.
Jack Iomlin. and Ernest Brown, left work at the Alberici-
Fruin-Colnon New Madrid project when they heard about
the shooting at C'ape Girardeau."° The Administrative Law
Judge found that the following events took place at Nesv
Madrid the next day (226 NLRB at 1323):
Menz and Kelley brought five other individuals with
them to the New Madrid jobsite on the morning of
October 24. After the Union's agents had accom-
plished the termination of Jackman, Menz, Kelley,
and those who accompanied them met with Fore-
man Ralph (Eddie) Brant. and the meeting developed
into a heated confrontation attended by violence and
threats of violence. M! findings with respect to this
confrontation are based on a composite of the testi-
mons of Brant. Fred Joe Rilev. and William [Strick-
lin,1 and I have rejected the testimony of Menz. Kel-
les. and Jack Kitchen as inherently incredible.
Men . . . told Brant that the petition for a new
election for union officers, which Brant and other
members had circulated, was illegal. a bunch of
bullshit and had to be stopped. .. . Menz threatened
that the petitions going around would have to stop or
somebody would get in trouble.
Brant asked if Menz had anything against him.
While it is not clear what Menz replied, Bob Worthy,
one of those who came to the jobsite with Menz and
Kellev. answvered. "'\ell. I have got something against
him. I never have liked the son-of-a-bitch [and] I will
tear his god damned head off his shoulders." Worth,
took off his glasses. spit out his tobacco and started to
Ih ,hci r * rc' f i Ihh, 1,kman\ R ph Brani. md f rd
Rtlkm
625
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
swing at Brant. Brant backed off protesting that he
didn't want any trouble, and Worthy was restrained
by Jack Kitchen and others.
When the tension had abated Brant asked Menz,
"Is that what you brought this son-of-a-bitch down
here for?" Menz' reply, if any, was not audible, but
Fred Kelley asked if Brant was talking to him. Brant
replied that he was not, and repeated his question to
Menz. Kelley interrupted again, repeatedly telling
Brant to shut up. When Brant did not comply Kelley
put his hand in the pocket of his jacket, raised his
hand in the pocket in front of Brant's face and said,
"Shut up or I'll blow your goddam head off." Upon
the credited testimony of William [Stricklin] I find
that Fred Kelley's jacket pocket contained an article
which [Stricklin] observed to be the handle of an auto-
matic pistol. Brant and the other employees present
left the scene.
I find that the above-described conduct of the Re-
spondent Union was prompted by the petition for a
union election which Brant, Jackman, and other union
members had prepared and circulated. I also find that
the Respondent Union's conduct restrained and
coerced Brant and the other union members who were
present in the exercise of their Section 7 rights. Fred
Kelley is an admitted agent of the Respondent Union,
and his vocal threat, accompanied by a physical dis-
play of force against Brant is clearly a violation of
Section 8(b)( )(A). Worthy is not an admitted agent of
the Respondent Union, but he was brought to the job-
site by Menz and Kelley, and they both ratified and
condoned his assault on Brant.
* * + * *
I find that the five persons who accompanied
Menz and Kelley were not intended as replacements
for employees who left the job on October 23, but
were brought to the jobsite in contemplation of acts of
intimidation and violence.
The Board, in affirming the Administrative Law Judge's
findings and conclusions in Fruin-Colnon and directing cer-
tain extraordinary remedies because of Kelley's "demon-
strated . . . proclivity to violate the Act," described
Kelley's role as follows (227 NLRB at 59):
The record in this case reveals that, for all practical
purposes, Kelley had complete authority over the
work performed by Respondent Union's members on
the Respondent Employer's Charmin Paper project.
Pursuant to the provisions of the collective-bargaining
agreement between Respondent Employer and Re-
spondent Union, Kelley appointed all the foremen
who supervised the employees on the project. Further-
more, Respondent Employer permitted Kelley to se-
lect those laborers to be laid off when conditions ne-
cessitated a reduction in work force. Possessed with
these powers, Kelley clearly had a duty as an elected
union official to administer Respondent Union's af-
fairs, which here so greatly affected the employees'
working conditions, in an equitable and orderly man-
ner for the benefit of each and every member of Re-
spondent Union. Instead, Kelley served as a virtual
dictator while presiding over the affairs of Respondent
Union, brooking no opposition to his authority. In
this regard, the record shows that Kelley caused the
discharge or layoff of seven employees for reasons
personal to him and all in contravention of the Act.
Moreover, when Kelley's efforts failed to quash the
employees' opposition to his position, Kelley then re-
sorted to violent conduct, including the throwing of a
baseball bat at employees, and later shooting at union
members who were attempting to secure signatures on
a petition for a new election of union officers, a right
clearly guaranteed them by Section 7 of the Act.
From the evidence herein, it is clear that Fred Kel-
ley has little or no respect for the various rights guar-
anteed employees under the National Labor Relations
Act. As Fred Kelley was the guiding force in the mas-
sive unfair labor practices found herein, the remedies
provided by the Administrative Law Judge do not suf-
ficiently reach the root of those violations. We note
that Fred Kelley has served as an officer of Respon-
dent Union for approximately 17 years. The record
further shows that he is well versed in the field of
labor relations. Yet, faced with a legitimate internal
union dispute over his authority, Kelley in order to
retain his position plotted, directed, and caused dis-
crimination against the employment status of Respon-
dent Union's members, and used violence to force
their allegiance to him and to dissipate support for the
employees' petition. In effect, Kelley tried to control
the labor policies of Respondent Employer for his
own personal benefit. Kelley's attitude towards fair
representation of the union members is succinctly de-
scribed in his blatantly unlawful remarks (before caus-
ing two of the discriminatees to be fired) that "We're
getting rid of these sons of a bitch that's not with us."
We conclude that such deliberate and violent viola-
tions of the Act by so informed a labor official as
Kelley warrant the inclusion of additional remedies.
I find without merit the Union's contention that the events
of mid-July through October 1975 are too remote in time to
have probative value as evidenced in the present case.
Rather, the unlawful conduct which I have found in the
present case is simply a continuation of the same pattern of
conduct which the Board found unlawful in Fruin-Colnon
and Alberici-Fruin-Colnon. The date of December 2, 1975,
has no substantive significance in this chain of events;
rather it reflects the view of General Counsel that such
date is the cutoff point for purposes of the time limitation
of Section 10(b) of the Act. '
" In a third related case. Elzingu-l.auin, iupru, the Board dismissed a
complaint predicated on a charge, filed by Norman Morill. alleging that the
I nion had discriminnatorilN c;lused the lav(iff of Morill, RlckN Pobst, and
Don Bollinger on October t, 1975 IThe [)ecision refers only to "employee
Bollinger": however. I have taken judicial notice of the formal papers in
that case, which reflect that the employee in question was Don Bollinger.)
General C(ounsel's case was based on the contention that the Union's sys-
tem for selecting empl)sees fir la)off was per se, weighed against nonmem-
hers such as Morill. Pobst. and Bollinger, who were denied membership in
the Union, The Board found that the layoffs were unrelated tii their al-
tempts to obtain union membership. General C ounsel did not contend In
626
LABORERS. LOCAL NO. 282
C. The Union's Referral List and Referral Procedures. and
the Union's Arguments Concerning the Adequacy of the
Complaint
General Counsel served upon the Union a subpoena duc-
es tecum, directing the Union to produce at the hearing
scheduled for August 30, 1976, inter alia. "Original referral
lists maintained by [the Union] for 'he period from June 1,
1975 through present." The Union moved to quash the
subpena; I heard argument, denied the motion in pertinent
part. and directed the Union to produce the lists. The next
day, in open hearing, union counsel proffered the docu-
ment which was subsequently introduced in evidence as
General Counsel's Exhibit 23, and which will hereafter be
referred to by that designation. Union counsel represented
that General Counsel's Exhibit 23 was proffered in re-
sponse to the subpena, and was a true copy of the Union's
referral list as of August 30, 1976, the original having been
shown to counsel for General Counsel and returned to the
Union. His statement was made in the presence of Kelley
and Menz, who were present throughout the hearing.
General Counsel's Exhibit 23 contained 12 sheets of
printed white forms, with headings for entries "Date,"
"Name and Town," "Telephone Number," "Contractor
Last Worked For," "Qualifications," "Union Member or
Permit," and "Went to Work." The printed sheets con-
tained entries of names running consecutively by date from
August 25, 1975, to August 27, 1976. Attached to the print-
ed sheets were two additional sheets of yellow pad paper,
without headings, containing names with entries dated
from "7 23-75" to "9-3-75." Union counsel represented
that the Union revised its list every August, and that Gen-
eral Counsel's Exhibit 23 was begun in August 1975 at
which time the previous list was scrapped.
The taking of testimony commenced on October 19, at
which time Bookkeeper Dean Hency was summoned as
General Counsel's first, and adverse, witness. Hency dem-
onstrated a determination not to testify to anything which
might jeopardize his job. Hency constantly resorted to
what might be described as a "Nuremburg defense." i.e.,
that he was only obeying the orders of Kelley and Menz. I
find it incredible that a person who worked for the Union
as long as Hency could be as ignorant of the Union's refer-
ral procedures as he professed to be. Hency testified that
the Union maintained only one list in its office, although
older lists were probably kept there, that the printed form
was prepared by him, probably on August 25, 1975, and
was still being used by the Union, and that the previous list
had been maintained on a yellow pad which was not used
after August 25, 1975. Hency professed to be unable to
explain whether the names on the last two (yellow) sheets
were carried over to the printed list, insisting that he only
put down names when he was told to do so by Menz or
Kelley. The names on the yellow sheets included that of
Elzinga-l. kin that the Utnion's hiring hall or job referral sNstem was dis-
criminalor- and none of the three Board decisions is ref ljiludiatr of that
question which is. of course. the central issue In the present case. Itisseer.
the Board's findings and conclusions in Elzmnga-Lakln. like Ihose In Frun-
C(,lnon and .4A erii-Fruin-Colnon. are es identiarN In the present case. and I
ha~ie taken all three into consideratiot in rendering ms decision.
Willard Null, who had his name entered on the referral list
on July 30, 1975, after being laid off from a bridge con-
struction job of contractor Al Johnson which was covered
by the AGC contract. In fact, Null's name was not entered
on any' current list until December 5, 1975, when he re-
joined the Union in the hope that it might help him get
work.
Menz testified that applicants who registered prior to
August 25 were cut off and not carried onto the current
list, and he conceded that this action was "arbitrarily" tak-
en. Menz subsequently rationalized that the action had
something to do with college boys who go back to school.
However, this explanation, even if true, would be irrelevant
to year-round laborers such as Null. Menz admitted that
none of the employees whose names appeared on the list
were notified that their names were being cut off and that
the Union was starting a new list. Menz testified that the
action was announced at a union meeting, but his testi-
mony was not corroborated by minutes or by the testimony
of other witnesses. Even if true (and I find that it was not),
such an announcement would be of no use to nonmem-
bers. including Null. Menz professed to be unable to ex-
plain why Dave Penny, whose name appeared on one of
the yellow sheets as of August 25, was carried onto the
printed form, while others whose names appeared as of
that date, including some which appeared above Penny's
name, were not so transferred.
During the presentation of General Counsel's case, ap-
proximately 12 witnesses testified, in sum, that throughout
the period from August 1975 to February 1976 the only
referral list which they saw was a yellow scratch pad main-
tained by Hency. No printed form such as General Coun-
sel's Exhibit 23 appeared until the spring of 1976.
General Counsel rested his case on November 12, and
the hearing resumed on December 20. On December 21,
the Union presented Paul Menz as a witness. During
Menz' testimony, the Union, for the first time, identified
and offered in evidence a document, Respondent's Exhibit
4 (needless to say. consisting of yellow scratch pad entries),
which Menz asserted was the actual out-of-work list which
the Union used from September 3, 1975, to January 19,
1976. Menz further testified that he was aware of the exis-
tence of Respondent's Exhibit 4 at the time General Coun-
sel subpenaed the Union's records. Respondent's Exhibit 4
contained numerous names (crossed off) which were not
entered on General Counsel's Exhibt 23. I rejected Re-
spondent's Exhibt 4, holding that the Union's response to
General Counsel's subpena. by which it represented Gen-
eral Counsel's Exhibit 23 to be the only list for the period
in question, precluded admission of Respondent's Exhibit
4.
General Counsel contends in his brief that "General
Counsel's Exhibit 23 is the best evidence available (except
where qualified by credible testimony of General Counsel's
witnesses) to establish the order and dates on which vari-
ous people signed the list," with the qualification: "That is
not to say the entire list is accurate." General Counsel
may be overly charitable. In fact, the Union has never pro-
duced the true list or lists. Initially. and only in response to
a subpena, the Union produced General Counsel's Exhibit
23. which as brought out by subsequent testimony con-
627
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tained false and falsified entries. After a parade of witness-
es made clear to the Union that it would have a hard time
persuading the trier of fact that the printed form was the
true list. the Union sat back and at the last possible hour,
like a magician, pulled another false or falsified list out of
its hat. The Union also hoped to undercut General Coun-
sel's case and obfuscate the issues by suggesting that em-
ployees not listed on General Counsel's Exhibit 23 were
entitled to referrals ahead of the alleged discriminatees. I
find that General Counsel's Exhibit 23 may be relied upon
to the extent that the entries thereon constitute admissions
against union interest, or are corroborated by employer
records or the credible testimony of employer or employee
witnesses for the General Counsel.
Moreover, the evidence indicates that, whatever or wher-
ever the Union's out-of-work list might be, that list was
honored more in the breach than in the observance. Labor-
er Raymond Dunn testified without contradiction that
Hency told him that there was no way the list could be
kept straight because Kelley and Menz would telephone
employees and never tell him. Even accepting the testi-
mony of Kelley and Menz at face value, it is evident that
referrals were often made in an arbitrary and capricious
manner, and were dependent upon the whims of Kelley
and Menz. Kelley testified that, when he got calls from
employers at his home, he would just use "common knowl-
edge" by getting names from stewards or his own recollec-
tion. Menz testified that even at the union hall he made his
own decision as to whether or not to use the out-of-work
list. Menz further testified that, if a steward requested a
particular employee, he would go along with that request.
Both Kelley and Menz testified that they felt under no
obligation to refer to the list when referring employees who
were to be appointed as stewards or foremen. Kelley and
Menz were contradictory and evasive in their testimony
concerning alleged policies in the referral procedure, e.g.,
whether employees were required to come to the union hall
in order to register for work, whether employees were
placed on the bottom of the list if they refused a job.
whether employees remained on the list if referred to a job
of short duration, whether traveling distance played a fac-
tor in an employee's selection for referral, and whether an
employee would be called for referrals if he was working at
a nonconstruction, nonunion, or nonreferred job. When
bogged down in these and other inconsistencies on cross-
examination, Kelley sometimes tended to avoid the ques-
tions by throwing verbal spitballs at the alleged discrimina-
tees. In fact, the Union had no consistent referral proce-
dures. Rather, as will be discussed in connection with the
individual alleged discriminatees, Kelly and Menz simply
invoked such alleged policies on a selective and arbitrary'
basis.
Menz and Kelley testified about skills and qualifications.
In fact, qualifications played only a minor role in referrals,
and skills, as such, were not a factor at all. The jobs to
which employees were referred comprised unskilled or
semiskilled work, all of which was learned on the job.
There was no formal training program, either by employers
or the Union, for any category of laborers' work. Employ-
ers only infrequently requested employees having a partic-
ular semiskill, e.g., hod carrier or grade checker. The
Union did not always honor such requests, but instead
sometimes sent employees who did not have the requested
qualifications. Grade checkers were seldom needed, i.e.,
there might be a need for a grade checker on a job with a
substantial amount of excavation work, and even a grade
checker required only minimal experience and on-the-job
trailing, because laborer grade checkers did not work with
instruments. When an employer hired a crew to perform
hod carrier work, it was only necessary or desirable that
some of them have prior experience. Moreover, when em-
ployers, especially larger firms, considered known ability
or experience to be a significant factor, they frequently
exercised their contractual right to bring in some of their
own regular employees. In light of the foregoing evidence,
I do not credit the testimony of Menz (uncorroborated by
employer testimony), that he frequently got requests by
skill.
I'he testimony of Kelley and Menz concerning their pro-
fessed knowledge of employee qualifications was at best,
unreliable. Kelley asserted that the Union tried to keep a
record of qualifications, and Menz testified that most men
on the list will put down their qualifications. However,
both Kelley and Menz admitted on cross-examination, in
sum, that they did not know the qualifications of all mem-
ber applicants, and knew less about nonmembers. Kelley
demonstrated a conspicuous lack of knowledge concerning
the experience and abilities of the alleged discriminatees,
although all had worked on union jobs, including some as
union-designated foremen or stewards. In fact, until Gen-
eral Counsel's Exhibit 23 made its appearance in the spring
of 1976, the Union kept no record whatsoever of employee
qualifications. Although this exhibit, a printed form, Gen-
eral Counsel's Exhibit 23, contained a column for the entry
of qualifications, applicants were not informed of this fact,
and Bookkeeper Hency made no entries unless requested
to do so by an applicant. Only a few such entries were
made. There is no probative evidence that Kelley, Menz, or
Hency ever made use of these entries, and the column was
used to make other (including falsified) unrelated entries.
The Union's disregard of objective qualifications was typi-
fied by Menz' explanation of why he referred his son Dan-
ny to the B & W job. B & W Superintendent Gary Ricken-
brode informed the Union that the job required working
on steel beams at heights of 200 feet or more. Menz in his
testimony went to great lengths to explain how important it
was for him to know which applicants could work at
heights. Menz admitted that Danny Menz had no prior
experience working on heights as a laborer, but asserted
that he knew his son was qualified because he had seen him
work on a barn roof! At the time employees with bridge
construction experience, e.g., Willard Null and William
Miller, were going without work. In light of the foregoing
evidence, I do not credit the testimony of Kelley and Menz
concerning qualifications as a factor in referrals, except to
the extent that such testimony is corroborated by the testi-
mony or records of employer witnesses presented by Gen-
eral Counsel.
As the alleged discriminatees were to learn, entry of
one's name on the out-of-work list gave no assurance of
job referral. The more reliable path was to be favored in
the eyes of Kelley' or Menz. Prior to the events of Septem-
628
L ABORERS. ILOCAI NO. 282
her and October 1975, most of the alleged discriminatees
did not even find it necessary to enter their names on the
out-of-work list in order to obtain referrals. Personal con-
tact with Kelley or Menz, or contact through a friend or
relative, usually sufficed. The Union suggests that, if such
informal referral practices prevailed before the fall of 1975S
they were caused not by favoritism, but by a surplus of job
opportunities which made an orderl, referral procedure
unnecessary. However. the testimon, of employee svitness-
es indicates otherwise, and the record evidence for the pe-
riod at issue, i.e.. December 2, 1975, through August 1976.
indicates a wide disparity in referrals. The system did not
change; rather, the identity of the favorites changed. Dissi-
dents such as Jim Bollinger. who previously enjoNed the
favor of Kelley. found themselves out of work. while new
favorites enjoyed substantial employment, notwithstanding
that there was a shortage of job opportunities during this
period. The case of Zeno (Sam) Blattel. Jr.. is an extreme
example. Blattel was a Cape Girardeau police officer who
testified for the defense in an embezzlement prosecution
against KelleS and at least one other union officer in
March 1976. The trial resulted in an acquittal. Blattel's
name appeared on General Counsel's Exhibit 23 as of
March 9, 1976. Nevertheless, Blattel was referred to no less
than fourjobs during the period at issue. Blattel worked for
Buckley from January 28 to February 10. for Fruin-('olnon
from February 23 to about March 10, for Millstone from
April 12 to July 21, and for Israel from Jul5 28 to August
20. General Counsel has compiled in its brief an alleged
reconstructed referral order which includes the names of
some 92 individuals who, it is alleged. were improperly re-
ferred to union jobs. General Counsel contends that 15 of
them were twice improperly referred to jobs during the pe-
riod at issue.i2 General Counsel's witnesses identified five
of these (Nelson Fiedler, Floyd (Frog) Penn'. Walter Don
Vance, Timothy Vickery. and Brad Wagoner, ias friends of
Kelley, a sixth, Terry Bock, as the son of a friend of Kelley's.
and a seventh, Larry Daniels, as Kelley's brother-in-law. Jim
Bollinger heard Kelley tell Dean Hency to put Elvis (Tins)
McCrite, another of the 15, on his (Kelle 's) "personal list."
Fiedler, Penny, Vickery, and McCrite testified for the defense
in the embezzlement trial. None of the 15, or Blattel. was
identified with the dissident movement.3
1 (General Counsel also contends that the fiolr referris of 7Zen Blaitel
were improper.
I' The Union offered to prove. through the lesiimons of .arloujs iitne.s-
es. including some identified as friends of Keller, thil .llcged di. rimilmlicc,
Jim Bollinger, Joe Sachse. Owen Innis. and Bill Miller had engiced inl ai,
of misconduct The Utnion did nol contend Ihalt the a;lleied dscrilniirlatee
were therehb disqualified from job referrals: rathr the nion 'ia sImpl,
attempting io revive its "unclean hands" defense Sitifalllntil. the t nlun
did not offer or attempt to dens. through these or .an oliher imrne hes. lie
special relationships to Kelles or ito the Union which were ilirlhuted io
them bs General Counsel's witnesses
Additionally. I cannot help hut note the apparent dearth of mininrilt
employees who were referred hb the I non. ( onsiiderable ic elltonl\ i,,
adduced concerning individuals Iwho "ere referred, rnd hlilk emploree,
were often identified hv race iHowever. with one exccptirn (Sheldln Ilemp-
stead. Jr.). the testimons indicated that Ihes iere referred purllum tii i
specific request bh the Emplo'er for minorisN emrnplhsccs II furthcr.lilrc of
the Employer's ,affirmative actroin progralm The lahborere Ir, ide Is trdli-
tionalls one which has attracted black persons n lar i numbeC I lie ouilih-
ern half of the Union's jurisdiction (if thi, is I ken it, nmell the
Before proceeding with the cases of the individual al-
legedl discrtimrinatees. there are two preliminary matters
wshich w-arrant consideration. I'he first is the Union's con-
tention that it swas denied a fair hearing because of alleged
inadequate or improper pleading by General Counsel. The
second is the manner in which the individual cases should
be handled. in *viesw of the absence of an authentic referral
list.
The I nion contends that Section 10(h) of the Act pre-
cludes the General (Counsel from alleging in the complaint
or amending the complaint to allege discriminatees not
named in the charge 4 The charge filed on June 2, 1976,
alleged that the Union. since on or about October 23, 1975,
had discriminatorily refused to refer Jim Bollinger. Bob
Jackman. Joe Sachse. and other union members to employ-
ers ha;ing exclusiv e hiring hall agreements with the
Itnion. I' I he original complaint which issued on July 29,
1976. alleged that the Union had discriminatorily refused
to refer Jim Bollinger. Joe Sachse, Don Hendrix, William
%Miller. Dave Newcomer. and "other applicants for em-
plo nient whose names are unknown to the Regional Di-
rector at ihis time." for employment to Millstone. Tobin.
and various other unnamed employers. On August 19. the
complaint w-as amended to insert the names of Owen Innis
and l eonard Daniels as additional alleged discriminatees.
As the e idence eventually developed, the referrals to Mill-
stone and Tobin comprised the bulk of those alleged by
General Counsel to be discriminatory. Specifically. 39 of
the first 74 allegedly improper referrals were made to To-
bin and Millstone. After General Counsel had an opportu-
nit\ to examine and analyze the various employer and
union records which had been subpenaed for production at
the hearing. I granted leave to General Counsel to amend
the complaint to allege 15 additional discriminatees. and to
name the employers referred to earlier as those to whom
improper referrals were made. Pursuant to leave granted
prior to the commencement of the taking of evidence on
October 19, 1976. General Counsel deleted the names of
three alleged discrim;natees and added the names of Wil-
lard Null and Jack Tomlin. The Union was afforded full
1\x -,lthirnr1m.it ilrintiles. uhich is dmlnistered h, Men, had a hlack
populhion lof lile than 15 percent if the total population in 197). al-
though the propoirtion had been steiadil declining. presunimahls a least it
part because ,If . Iack of jbh opportunities in this sennrural area 1 S
D)cp.riitcli of ( tnriirte. B irealu of the Census. ('it ond (,nll )nalr
B,,A, (I7') MILS ;Ie t31 u points in his testimons. s.olunteered his lo.
opinioin of InlnOirilts urkers. siaiine that It was "hard to get a colored fellow
c.to doss.n il .I ditch or up high Thes won't do it. .. That', hait I run
llIt,) ilth rillllrllcs ard ill the11 people."'' I recognize that the question of
eulll opporltilt v.s nal Il itilted InI this proceeding fleu ever. in siei ,if
ihe, foreg liin fts. and the large part plised hs the likes and dlshlikes of
Kelles indl M enz In the referril sstem. ii appears that the Board is nlt the
ioni agetics cuhtih l shuld he interested In the operations of this Itnion
Sct Ilih) prosides II pertinenl ptrt thlt "no complaint shall issue
h.ic one .arx infiii lahor pn .itltc ccurring more than six months prior to
the filnll of th li .:irte ilth the Boilrd "
(,cncral ( ilni esl icer alleged Jacknian as a di,,riminatee in this case
( isequenlil. I find iilthout lmerit the union's argument that the difficults
ciiuiin.tecreid ii Io.'.iLa J.llru. Liii foir the purpose of reall for furlher cross-
e\artlilllltllTIn \i.s i unlieh o ilusiitrIi.Ce *if .1 venerali difficult, in locUilng
unin lle ibers for oh ieferrils, I he iilideni took plate during ('hrlstmsns
seek. ushel .laricman ii . ,is dolinl hls holida.s hopping and obh referrals were
iunllkcl, Ith t illlo had 1i difflilis in , hiotining the presence of hoth
.lencf diirilniiltce, Jlnl 'llltricer ind Jc 5.che for the purpose of re-
nI'ei t1. o e iX.1111 /ritil
629
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and adequate opportunity to meet the allegations of the
complaint as amended.
It is settled law that a complaint or amended complaint,
although filed more than 6 months after the violations al-
leged therein, may allege violations not alleged in the
charge if they are closely related to the violations named in
the charge and occurred within 6 months before the filing
of the charge. Consequently, the complaint may allege dis-
criminatees or acts of discrimination in addition to those
alleged in the charge if they occurred within 6 months be-
fore the filing of the charge. See e.g., the decision of the
distinguished panel in N.L.R.B. v. Dinion Coil Company,
Inc., 201 F.2d 484, 491 (C.A. 2, 1952). Therefore, the pres-
ent complaint, which alleges unlawful conduct since De-
cember 2, 1975, was properly amended.
Moreover, I find that the cutoff date for Section 10(b)
purposes is July 6, 1975, and not December 2, 1975, as
submitted by General Counsel. As indicated, the present
case is not the first case arising out of the Union's alleged
discriminatory operations and retaliation against disfa-
vored employees. On January 6, 1976, Norman Morill filed
a charge in Case 14-CB-3118 alleging that the Union was
violating Section 8(b)(1)(A) and (2) of the Act, inter alia, by
causing M. K. Lakin and other employers to deny employ-
ment to Morill and others. The charge resulted in the com-
plaint in Elzinga-Lakin, supra. That charge was sufficiently
similar to the present complaint as to put the Union on
notice that allegations such as those in the present com-
plaint might be thereafter made against it. In essence, the
present complaint, like Morill's charge, alleges that the
Union discriminatorily caused various employers to deny
employment to Morill and others. So long as Elzinga-Lakin
was pending final disposition by the Board, the 10(b) pe-
riod was tolled. Indeed, Section 10(b) expressly empowers
the Board to amend the complaint at any time before an
order is issued based thereon. While the present allegations
were set forth in a new complaint, rather than by proposed
amendements to or consolidation with the pending com-
plaints in Fruin-Colnon, Alberici-Fruin-Colnon or Elzinga-
Lakin, these are differences without a distinction. The situ-
ations are analogous. General Counsel might have sought
such consolidation, but was dissuaded from doing so from
the action of the Administrative Law Judge (affirmed by
the Board), in severing or declining to consolidate the three
named cases because of the involvement of Employer-Re-
spondents who were not alleged to have engaged in common
action. However, the Administrative Law Judge recognized
that General Counsel was alleging common action on the part
of the Union, which is, of course, the only Respondent in this
case. Nevertheless, as General Counsel has chosen to limit
its complaint to referrals since December 2, 1975, 1 have not
made any findingsas to whether there were improper referrals
before that date.
The Union further contends that the complaint is inade-
quate because it does not specifically allege what persons
were improperly referred in preference to each alleged dis-
criminatee, on what date, and to which employer. This
contention was rejected by the Administrative Law Judge
to whom the Union's preheating motion was referred, by
me at the outset of the hearing, and again by me in grant-
ing General Counsel's motions to amend the complaint.
However, I indicated that I would continue to monitor
General Counsel's presentation of his case, both during the
hearing and in deciding the case, to assure litigation within
the scope of the complaint and fairness to the Respondent.
I have done so. I find in all of the circumstances, including
the Union's deliberate falsification and concealment of
material evidence, that the Union was accorded a full and
fair hearing. Prior to the hearing, only the Union was in a
position to know who was referred, who was not, and why.
Prior to the hearing, the Union refused to furnish General
Counsel with a copy of its alleged out-of-work list (al-
though permitting a Field Examiner to look at the list),
and, as matters turned out, that list was a false or falsified
one. Moreover, two major employers declined to cooperate
with the Regional Office's investigation. In view of the
Union's own failure to follow any orderly and recorded
referral procedure, General Counsel could not reasonably
be expected to allege the specifics demanded by the Union
until after the completion of the evidentiary hearing. Gen-
eral Counsel has alleged such specifics in its posthearing
brief. Fairness to the alleged discriminatees (who are also
entitled to a full and fair hearing) and the public interest
embodied in the Act necessitate that the Union not be
permitted to use its own concealment as a barrier to a full
hearing.
General Counsel, in his brief, has reconstructed what it
considers to be a proper referral order, based on employer
records. the credible testimony of employer and employee
witnesses, and General Counsel's Exhibit 23 except to the
extent that it has been qualified by the credible testimony
of General Counsel's witnesses. General Counsel has not
included individuals who are not named as discriminatees
or were not referred by the Union because there is no way
of determining whether they were available to work during
the period in question. I agree with General Counsel that
such entries should not be given evidentiary significance.
General Counsel's Exhibit 23 is a false or falsified docu-
ment, and there is no way to determine with probability the
full extent that it .was falsified from other, undisclosed rec-
ords. Moreover, there was considerable referral activity
which is not reflected on General Counsel's Exhibit 23.
However, for every wrong there should be a remedy, and
the absence of authentic and complete referral records
should not preclude remedies where warranted. I do not
believe that is is necessary for me to duplicate the work of
General Counsel by attempting to reconstruct a nondis-
criminatory referral order to the same extent as that of
General Counsel. Instead, I shall deal with the allegations
implicit in General Counsel's proposed referral order as
they relate to the allegations of the complaint. Specifically,
I shall take up the case of each alleged discriminatee in the
order in which General Counsel contends he should have
been referred, and deal with the first alleged related im-
proper referral, including any questions of fact or law im-
'" Indeed, the Board has only recently held. in a discriminatory hiring hall
caser that. where discriminators referrals have been proven. but the discrim-
mnatees. as opposed to the favored employees. cannot be identified from the
record In the unfair labor practice case, such identification could he left to
the compliance stage of the proceeding Internroinul Asso-r alion of Bridge
Siruw tural cfid Ornamental Iron Wi'orAerv. L.ocal No 433 (The A vso< iated Gen-
rial ( lir ,t-,rs f ( CaltCrnia. Inc )i 228 NlRB 1420. 1440 (1977)
630
LABORERS, LOCAL NO. 282
plicit therein, unless the circumstances of a particular case
warrant a variation from this procedure. Thereafter, if war-
ranted, I shall review the evidence to determine whether,
absent discrimination, there would have been more than
one referral for any of the alleged discriminatees during the
period in question."
D. The Individual Alleged Discriminatees
1. Willard Null
Null was a middle-aged man who had been working as a
laborer since the late 1950's. He had varied experience,
including having worked as an air track driller in blasting
work. Null worked on a bridge construction job for AGC
contractor Al Johnson for about 3 months, was laid off in
July 1975, and thereupon entered his name on the Union's
referral list, apparently (as reflected by G.C. Exh. 23) on
July 30. As indicated, the Union, arbitrarily and without
notice, cut his name off the referral list. Null received no
further referrals. He testified that he inquired several times
about work, but that Kelley did not respond to his calls
and Hency told him there was not much. In December
1975, Null rejoined the Union in hope that this might help
and, at this time, Hency again entered his name on the list
(as of December 5).
Null signed a petition for the dissident group and attend-
ed some of its meetings. There is no direct evidence that
the Union knew of Null's activity. However, Null lived
with Jim Harper's mother, and referred to Harper as his
stepson. The Union knew of this relationship. Harper was
active in the dissident movement, he was present at the
New Madrid incident on October 24, and he testified for
the Government in the criminal trial in early February
1976 which resulted in the conviction of Kelley and Menz.
Null was not on the Union's "enemies' list," but he was no
favorite either. Null testified that, although Mrs. Harper
was home nearly all of the time, he received no calls from
the Union, with the possible exception of one call which
Mrs. Harper received about the time of the commencement
of this hearing. Null testified that the caller, who did not
identify himself, asked if Null was working and Mrs. Har-
per answered that he was working for himself.
There are no entries on General Counsel's Exhibit 23 to
indicate that Null was called. Paul Menz testified that he
called Null several times, and was told by Mrs. Harper that
he was not home. However, he changed his testimony, say-
ing that he called only once, in July or August 1976, with-
out identifying himself and was told by Mrs. Harper that
Null was building a house. Fred Kelley testified that Null
told him that he did not want to work because he had a
compensation case pending. However, Kelley was unable
to explain why, if this were true, that Null's name was not
scratched off the list. or an entry made, as was done with
other applicants who allegedly refused work. The probable
'(General ( ounsel contends in his brief that each alleged dlscriminalee
was entitled to the referral set forth opposite his name on the reconstriucted
referral order. Hlowever. in the text of the brief (eneral C ounsel nmdild-
ualls refers to each alleged discrilminatee as being entitled to the next refer
ral. This discrepancy is not explalined. I have proceeded on the assulmption
that the reconstructed referral order conta;ins the speific allegations Iof
General Counsel
reason is that, at the time the Union turned over General
Counsel's Exhibit 23 to General Counsel, it did not antici-
pate that Null would be named as a discriminatee. I credit
Null, and find that the Union never called him for a job
referral.
General Counsel contends that the Union should have
referred Null to Potasnick on December 3, 1975, instead of
Charles E. Pobst. whose name does not appear on General
Counsel's Exhibit 23. There is no evidence that Pobst ever
registered on the list, and consequently Null, who regis-
tered in July, was entitled to preference in referral. The
Union referred Pobst to Potasnick's Marble Hill job in re-
sponse to Potasnick's request for a driller; i.e., the very
experience which Null had. The Union told Potasnick's
project manager that it did not have a driller, but sent
Pobst who, like Null, had drilling experience. This oc-
curred during a period of time when Null was actively and
persistently inquiring about job referrals. I find that the
Union arbitrarily failed and refused to refer Null for em-
ployment, and thereby violated Section 8(b)(1)(A) and (2)
of the Act. International Union of Operating Engineers
Hoisting and Portable Local No. 513, AFL-CIO (S. J.
Groves and Sons Co.), 199 NLRB 921 (1972).
Pobst worked for Potasnick from December 3 to Decem-
ber 12, when the job was shut down. Had Null been prop-
erly referred, the inference is warranted that he would have
been reregistered on the out-of-work list and been avail-
able for further referrals after December 12, 1975.
2. William Miller
Miller began working as a laborer in 1974. He initially
obtained work through a friend of Kelley's, and, thereafter
until September 1975, obtained referral slips from Kelley
without ever registering on the out-of-work list. Miller
worked at a variety of jobs, including working at heights
(bridge railing). Miller's activities in the dissident move-
ment, and Kelley's animus and discriminatory treatment
toward Miller, are documented in Fruin-Colnon, supra.
Miller registered on the out-of-work list on September 8,
shortly after the Union caused his termination from Fruin-
Colnon because of his dissident activities. Hency told
Miller that there were 6-1/2 pages of names on the list (on
G.C. Exh. 23. Miller's name appears near the top of the
list). Miller told Hency that there could not be many
names because Jack Kitchen, Jack Lancaster, and Roy
Griffith had only recently gone from one job to another. At
this point, Hency became flustered. Miller continued to go
to the union hall to pay his dues. In January or February,
Hency told him that he was 5-1/2 pages down. In April or
May, Hency told him that his name had been put to the
end of the list because he had refused work. He denied the
accusation, whereupon Hency replied, "that's what they
told me." About a month later, Miller went to the hall with
Owen Innis. Hency said that Kelley had made a new list
and that Miller was the first on it. However, he told Innis
that he (Innis) had refused a job and was put to the bottom
of the list. Innis denied the accusation and Hency replied
that "they had it down." Hency did not deny the testimony
of Miller and Innis concerning these conversations. I credit
their testimony.
631
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Miller testified that he received no calls from the Union
until September 1976, when he was away in Pennsylvania
in connection with his work of raising or training race hors-
es. Miller had a large family, and his wife was normally
home. He categorically denied ever refusing a job before
that time.
Miller's name appears on General Counsel's Exhibit 23
next to the date of September 8, 1975 (and properly so),
and again at March 3, 1976. Next to the September 8 entry
are the notations "refused job" and "called associates on
St. Francis Hospital 3/3." Kelley and Hency testified that
they called Miller and Innis on that date for referral to
such ajob (Associated Contractors on the St. Francis Med-
ical Center project in Cape Girardeau), but both refused
and were placed at the bottom of the list.' The Union also
presented the testimony of Larry Burford and Floyd (Frog)
Penny, who were allegedly in the union hall when the calls
were made. Burford was a member of the Union's execu-
tive board and at the time was foreman of laborers for
McCarthy at the St. Francis project. Penny was a laborer
at that time. Burford testified that Hency referred to a yel-
low pad when he called Miller and Innis (as well as Joe
Sachse, Leon Stricklin, and Bob Jackman). Penny, after a
long and thoughtful pause, testified that he saw Miller's
name on a white sheet which looked like General Counsel's
Exhibit 23. Penny, who ostensibly listened in on Hency's
conversation, testified that it sounded like Miller's wife was
on the line, because Hency said that he had a job for "Bill
Miller." Hency testified that he personally spoke to Miller.
During his testimony, Burford was demonstrably rational-
izing and thoroughly confused as to what happened (or
what he should say happened). In fact, there were no refer-
rals for Associated Contractors. McCarthy was the general
contractor and employed the laborers on the St. Francis
project. McCarthy's records indicate that there were no re-
ferrals on or about March 3, the nearest being Earl Milam,
who began work on or about April 6, 1976. Kelley admit-
ted that Associated was a pipefitting subcontractor, that it
had no contract with the Union, and that he had never
referred any employees to Associated. Burford admitted
that on those rare occasions when Associated needed a
laborer, e.g., for short periods of cleanup work, it would
borrow them from McCarthy. The clue to the Union's fah-
brication lies in Kelley's testimony that Associated also ob-
tained employees from Nip Kelley Construction Company,
owned by Kelley's brother. Kelley invoked Associated and
made appropriate insertions into the referral records of
Miller, Innis, and Joe Sachse, all discriminatees in the ear-
lier cases, in the hope or expectation that, if necessary, Nip
Kelley might provide an appropriate cover story. In fact.
Kelley's hearsay testimony was uncorroborated by any em-
ployer witness. Kelley testified that Burford had told him
that one "Slim Fair" had said that Associated needed em-
ployees in the support force. Even Burford did not corrob-
orate this story.
Kelley testified, pursuant to notations on General Coun-
sel's Exhibit 23 opposite the March 3 entry, that he called
IS Some of the evidence with respect to the Innis call will be discussed in
connection with his case, infra.
Miller on April 12, 1976. for referral to Millstone and on
August 10, 1976, for Dorada Industries, but there was no
answer." The latter employer was otherwise unidentified
by testimony or records. If Kelley called Miller on April
12. then it is difficult to see why Kelley did not then call
Innis, whose name appeared immediately after Miller on
General Counsel's Exhibit 23. As indicated, both were al-
legedly placed at the bottom of the list on March 3. How-
ever, Kelley testified that he did not call Innis again until
June 8 (as shown on G.C. Exh. 23). I do not credit the
testimony of Kelley. I credit Miller. and I find that he was
not called for any referrals from September 1975 to Sep-
tember 1976. Moreover, I question the authenticity or sin-
cerity of the calls made in September. after this hearing
opened. Those calls fall into a pattern which recurred in
the cases of the dissidents. When the Union learned of
some reason why they could not work, they were called, or
the Union seized upon the reason as an excuse not to refer
them. Otherwise, they did not hear from the Union.
Miller stood high on the referral list (15th on G.C. Exh.
23) and should have been called before March 3, although
the Union does not contend that he was called before that
date. General Counsel contends that Miller should have
been referred to Buckley (Southeast Missouri Hospital in
Cape Girardeau) on January 28, 1976, instead of Zeno
Blattel, whose success in obtaining work has previously
been discussed. I agree. Buckley Job Superintendent Wood
testified that he did not request any men by name or skills,
and that Blattel and Sheldon Hempstead, who also began
work on January 28, did common labor work. I find that
the Union deliberately failed and refused to refer Miller
because of his role in the dissident movement, and thereby
violated the Act. It may be inferred that, if Miller had been
properly referred to Buckley, he would have worked until
the date Blattel was laid off (February 10) and would
thereafter have registered on the out-of-work list.
3. Bob Sachse and Mike Sachse
Bob and Mike Sachse were brothers of Joe Sachse, who
was terminated by Fruin-Colnon at the behest of the
Union on September 16, 1975, because of his dissident ac-
tivities. They began working as laborers in 1974, having
obtained their first referrals from Kelley through their
brother Joe. Kelley told Bob that he would get him a job
because he owed Joe some favors. Bob's last job was for
Potasnick, and Mike's for McCarthy. Both were laid off in
mid-September. They testified that they thereupon went to
the union hall, where Kelley told Hency to put their names
on the list. It is undisputed that, thereafter, neither Mike
nor Bob was called for a referral. In November 1975, Po-
tasnick, through Job Steward Bill Dunivan, offered to re-
call Bob to work. However, he had to turn down the offer
because he was laid up with a fractured back incurred in a
hunting accident. Mike testified that, in January or Febru-
ary 1976, he checked with Hency, who told him that Bob's
name was on the list, but not his. Hency did not deny this
19 Miller moved in June or July 1976 and changed his telephone number.
fHowever. his new number was listed, and the Union did not contend that it
had any difficult, in calling at his new home in September. Therefore. it is
evident that the Union knew or obtained Miller's new number
632
LABORERS, LOCAL. NO. 282
conversation except in an oblique fashion. testifying that
he did not recall seeing Mike come in for a job or referral.
The names of Mike and Bob Sachse do not appear on
General Counsel's Exhibit 23. Kelley was equivocal about
the absence of their names. He testified that he did not
know why their names were not on the list. and that he had
not seen them come into the union hall "since December 2.
1975," but admitted on cross-examination that he "imag-
ine[d]" that the Union had a list where Mike and Bob
signed on the same day. Bob and Mike Sachse both testi-
fied that they never registered on the out-of-work list prior
to their respective layoffs from Potasnick and McCarthy,
and the Union offered no evidence to show that thev had
done so, let alone on the same day. I credit Mike and Bob
Sachse, and find that Kelley avoided putting their names
on the list and avoided calling them for referrals because
Joe Sachse had become his adversary, and Kelley felt that
he no longer owed the Sachse family any favors. (As found
in Fruin-Colnon. supra, Kelley learned in August 1975 that
Joe Sachse was active in the dissident movement. and
sought his layoff for that reason.) I agree with General
Counsel that Mike and Bob Sachse should be deemed as
having registered on the out-of-work list not later than Sep-
tember 30, 1975.
General Counsel contends that Mike Sachse should have
been referred to Buckley on January 28, 1976, instead of
Sheldon Hempstead, and Bob Sachse to Fruin-Colnon on
February 23, 1976, instead of Edward Allen Adams.
Hempstead's name does not appear on General Counsel's
Exhibit 23 until August 26, 1976, and Adams' name does
not appear at all. Hempstead was not requested pursuant
to any affirmative action program. (Fortunately for Hemp-
stead, the two jobs to which he was referred were located in
the northern portion of the Union's jurisdiction, which is
administered by Kelley.) Fruin-Colnon, like Buckley, did
not request referrals by name or skill. I find that the Union
discriminatorily failed and refused to refer Bob and Mike
Sachse. Both jobs lasted about 2 weeks: hence it does not
appear that any substantial prejudice would result if Mike
were deemed as being entitled to a referral before Bob.
rather than vice versa.
4. Ricky Pobst, Don Bollinger. and Norman Morill
Pobst, Bollinger. and Morill were the three unsuccessful
alleged discriminatees in Elzinga-Lakin, supra. Upon being
laid off, they promptly registered on the out-of-work list,
and their names appear on General Counsel's Exhibit 23 as
of October 6, 1975, in the order indicated above. Morill
filed his unfair labor practice charge on January 6. 1976.
complaint issued on January 12, and the case was heard on
April 2, 1976. None of the three were union members, and
they did not participate in the dissident movement.
Pobst was engaged to Morill's daughter (they married on
August 14, 1976). He did not leave a telephone number
with Hency; however, the Union knew that he could be
reached either at his father's home, where he lived, or by
leaving a message at Morill's home. Pobst's mother was
normally home. Morill's wife gave birth to a child on No-
vember 2, 1975, she returned to work in earls 1976, and
thereafter there was normally a babysitter in the house
from 7 a.m. to 5 p.m.. until about October 1, 1976, when
Mrs. Morill ceased working. Morill worked as a self-em-
plosed carpenter after his layoff. In January 1976. Pobst
began working as a cutter-sprayer for an apparel shop.
However, both testified that they never told the Union that
thes were no longer interested in referrals, and both further
testified that they did not receive any calls or messages
from the Union after their layoff.
The first three columns opposite Pobst's r.ame on Gener-
al Counsel's Exhibit 23 (headed respectively "Telephone
Number," "Contractor Last Worked For" and "Qualifica-
tions" ). contain respectively the notations, "called no an-
swer Aug. 30. '76." "called no answer" and "working." Op-
posite Morill's name was the entry "called no answer 5-
13." Paul Menz testified that he made the first notation
opposite Pobst's name, and that he called again and was
told by Pobst's mother that he was working in a factory.
This second call allegedly occurred after General Counsel's
Exhibit 23 had been turned over to General Counsel pur-
suant to subpena at the second day of the hearing on Au-
gust 31. Menz testified that he also made the entry opposite
Morill's name, and that on separate occasions a sitter and
Mrs. Morill said that Morill was working as a carpenter.
Fred Kelley testified that he neither knew nor called Pobst
or Morill, and Dean Hency testified that the entries were
not his, which left unexplained the second and third entries
opposite Pobst's name. Menz failed to explain why no no-
tation was made that Morill was working, or why he was
not therefore crossed off the list, or why Morill was called
on May 13, and Pobst on August 30, although Pobst was
ahead of Morill on the list. No evidence was presented as
to what if any jobs were involved in these alleged referrals.
Morill impressed me as a candid witness. He answered
questions forthrightly even when the answers were obvious-
ly adverse to his interests. In contrast, I have ample reasons
to question the credibility of Menz, not the least of which is
his action, together with Kelley and Hency, in falsifying
and concealing material evidence. I credit Morill and
Pobst, and find that the Union did not call them at all
during the period in question and that calls on or after
August 30. if they were made at all, were a sham and effort
to obfuscate the Union's failure to call them when they
were entitled to referrals. The Union's attitude and policy
toward employees who made unwanted complaints was
documented in the case of Tom Lukefahr in Fruin-Colnon,
227 NLRB at 67. 1 find that the Union arbitrarily failed
and refused to call Morill and Pobst for referrals and there-
by violated Section 8(b)( )(A) and (2) of the Act.
Don Bollinger did not testify in this case, and General
Counsel has not explained his failure to do so. General
Counsel's Exhibit 23 contains the notations "called no an-
swer Aug. 30, '76" and "called no answer 5-13." When
called as a witness for General Counsel. Dean Hency testi-
fied that he could not contact Bollinger. When called as a
witness by the Union, he testified that he could not recall
having called him. Kelley testified that he did not know
Bollinger and never called him. Menz testified that he
called several times and was told by Bollinger's father that
he was working. (In light of this testimony, the absence of
a telephone number for Bollinger on G.C. Exh. 23 is irrele-
vant.) Menz testified that he called Bollinger for referral to
633
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Blount and probably Penzel. However, the Union did not
refer any employees to Blount during the period in ques-
tion. Menz also testified that he learned through Nip Kel-
ley that Bollinger was working as a Teamsters truckdriver.
Menz further testified that employees who were working at
another trade were taken off the list, but he failed to ex-
plain why Bollinger's name was not crossed off or why
there was no notation on General Counsel's Exhibit 23 that
he was working. I do not credit Menz. I find that, as with
Morill and Pobst, the Union discriminatorily failed and
refused to call Bollinger for referrals.
Testimony by an alleged discriminatee is not an indis-
pensable prerequisite to a finding of a violation if other
direct or circumstantial evidence demonstrates such a vio-
lation. Satra Belarus, Inc., 226 NLRB 744, fn. 2 (1976),
citing New Madrid Manufacturing Company. a Corporation,
and Harold Jones, an Individual, d b/a Jones Manufacturing
Company, 104 NLRB 117, 119-120 (1953), enfd. as mod-
ifed 215 F.2d 908 (C.A. 8, 1954); Bechtel Power Corpora-
tion, 223 NLRB 925 (1976). See also the case of Henry
Durham in Fruin-Colnon, 227 NLRB at 65. In the present
case, the elements of a violation have been established,
with the possible exception of Bollinger's availability for
work. Primafacie, at least, that has been established by the
Union's admission on the face of General Counsel's Ex-
hibit 23, i.e., that Bollinger registered on October 6, 1975,
and that there is nothing to indicate that he was working at
another trade and no longer wished to be referred by the
Union. However, my finding in this regard is subject to the
right of the Union to show in the compliance stage of this
case that Bollinger was in fact unavailable for referral dur-
ing the period in question.
General Counsel contends that Pobst, Bollinger, and
Morill should have been referred to Fruin-Colnon's P & G
project instead of Zeno Blattel on February 23, Dave M.
Lutes on March 1, and W. E. Griffin on March 4, 1976. 1
agree. Blattel had been referred to Buckley in January 1976
and Lutes in December 1975. Lutes' name appears on Gen-
eral Counsel's Exhibit 23 on March 10, 1976 (apparently
after leaving Fruin-Colnon), Blattel on March 9, and Grif-
fin does not appear at all on General Counsel's Exhibit 23.
Griffin worked for Fruin-Colnon for about 2 weeks.
5. Joe Sachse
Joe Sachse became a union member and began working
as a laborer in 1963. He had varied experience and Fred
Kelley conceded that he was a good worker. On September
16, 1975, the Union caused Fruin-Colnon to discharge
Sachse because of his activities on behalf of the dissident
movement.20 The next day, Fruin-Colnon rehired Sachse as
'o I do not credit Sachse's testimony concerning an alleged telephone
conversation in October 1975. in which Kelley allegedly threatened him
with violence. Sachse did not refer toe any such conversation in his investiga-
tory affidavit of November 4. 1975. ind there is no indication that he testl-
fied about such a conversation in Fruin ('olnmn. although it is inconceivable
that he would have overlooked such a matter. foweser. I doi not accept the
Union's argument that the alleged discriminatees, and in particular acutse
dissidents such as Sachse. Innis. and Jim 1Bollinger should he discredited
because the) are allegedly engaged in a plot to take over the Union This
argument assumes that the Union is the private domain of Kelley and
a cement finisher through the cement finishers union, and
he continued to work for Fruin-Colnon until October 22,
1975. Sachse's name appears on General Counsel's Exhibit
23 at October 8 and again at December 9. Sachse testified
that he registered in December, but not on October 8, be-
cause he was working for Fruin-Colnon at that time. The
Union did not present any testimony that Sachse actually
registered on the list in October. I credit Sachse's explana-
tion, and find that his name should have first appeared on
the out-of-work list as of December 9, 1975.
Sachse's name is scratched out at the October 8 entry.
Opposite that entry are the notations "refused job" and
"called 3-3 for associates." Opposite the December 9 entry
are the notations "working for Q. T. Masonry," "called 7-
28-76 Israel could not locate," and "called no answer 5-5-
76." Sachse testified that he has not worked for Q. T. Ma-
sonry since 1966. Kelley and Menz testified that they did
not call Sachse. but Kelley testified that he heard Hency
call him. Hency, ever anxious to remain uninvolved, testi-
fied that he did not call Sachse, but was probably told by
Kelley to make a notation. As heretofore found, there was
no job for Associated Contractors. The Union failed to
explain why, if Sachse refused a job, he was not put to the
bottom of the list, as were Miller and Innis, or why Pobst,
Morill, and Don Bollinger, whose names appeared on Gen-
eral Counsel's Exhibit 23 ahead of Sachse, were not called
before him.
Sachse testified that he got only one call from the Union,
and that call was taken by his wife. Sachse's wife, Jeanetta,
testified about the call. She testified that one afternoon in
or about August 1976, she received a telephone call from
Hency at Ervin's Auto Body, where she worked as a book-
keeper. Hency told her that he had a job for Joe with Is-
rael. At the time, the Union was referring employees to
Israel. Mrs. Sachse asked for a little time to locate Joe.
Hency said he would give her one-half to one hour, and
told her to call back by 3 p.m. However, Mrs. Sachse testi-
fied that she did not locate Joe until after 5 p.m. She testi-
fied that Hency called again between 3 and 3:30 p.m., and
asked if she had located Joe. She told him she had not, and
that she thought he was out of town. Mrs. Sachse testified
that Hency said that Joe would keep his place on the list,
and would probably get another call in the next few days
or weeks.
The ever-present Larry Burford testified that, on two oc-
casions during the summer, he heard Hency trying to reach
Joe Sachse. Burford is Mrs. Sachse's brother. Floyd Penny
also claimed to be present when such a call was made.
Menz. Ihe dissidents have the right to seek ouster of the Union's present
leadership. as well as the right to seek union office themselves I recognize
that some dissidents may wish to obtain union office. but by the same token
I also recognize that KelleN, Menz, and Hency are out to keep their present
positions. All this demonstrates that the dissidents, like Kellev. Menz, and
Hetnc. are not disinterested witnesses. and consequently. their testimony
should be evaluated with this factor in mind I also do not attach great
significance to the fact that some active dissidents obtained job referrals
during the period in question One of these Bobbhhy Jackman, had already
been discriminatorily deprived of employment. It is possible that the refer-
rals reflected a nmondiscriminatory motivation It is also possible that the
Union was following a divide-and-conquer strategy, or could not come up
with a sufficient pretext for not referring some individuals (Consequently, I
hase attached the greatest significance to the evidence as it immediately
involves each individual discriminatee
634
LABORERS. LOCAL NO. 282
Burford was unable to explain why he was able to spend so
much time at the union hall while he was employed as
general foreman for McCarthy. Burford testified that he
left the union hall after Hency spoke to Mrs. Sachse and
on the way saw Joe Sachse inside Ervin's, which was about
one-half block from the union hall. Burford, who wears
glasses, testified that at the time he was driving his car on a
four-lane highway, on the side farthest from Ervin's, and
was about 200 feet from Ervin's. I do not credit Burford. I
find it more likely that, if the Union were really interested
in referring Sachse to a job, that if Burford saw his brother-
in-law he would have stopped and told him that there was
a job for him. There was no need for urgency. Israel's rec-
ords indicate that numerous laborers were referred from
the Union during the summer, and that they reported to
work on various dates; i.e., July 21 and 28 and August 2, 3,
4, and 13. If the date of July 28 on General Counsel's
Exhibit 23 is correct then most of them were called before
Sachse. I find it probable that Kelley learned through Bur-
ford that Sachse was away and could not be reached on
short notice, and used the opportunity to have Hency make
a call to Mrs. Sachse, setting an impossible deadline. secure
in the knowledge that the call would not result in a referral.
I find that the Union never called Sachse with a bona fide
offer of a job referral, and that its failure to do so was
motivated by Sachse's activity in the dissident movement.
However, because of my finding that he should he on the
list as of December 9, 1975, 1 will defer consideration of a
proper referral until the appropriate chronological point.
6. Owen Innis
Owen Innis began working as a laborer in 1968 or 1969
and had varied experience, including working as a fore-
man. On October 10, 1975, Kelley caused Fruin-Colnon to
terminate Innis because of his activities in the dissident
movement. Kelley told Jim Bollinger that Innis and Jim
Schoen, also discriminatorily terminated the same date,
would "never work out of the hall again." Fruin-Colnon,.
227 NLRB at 66. On Monday. October 13, Innis and
Schoen registered on the out-of-work list, and their names
appear on General Counsel's Exhibit 23 as of that date,
Innis' name being before Schoen. Schoen was referred to a
job with Potasnick, and worked as a driller from February
27 until May 11, 1976, when he was laid off. Fred Kelley
fired at Innis' truck on October 24, 1975. when Innis, Joe
Sachse, and Dallas Dover were soliciting signatures for the
dissident movement, and the three employees subsequently
testified about the matter in the unfair labor practice and
criminal cases.
The October 13 entry on General Counsel's Exhibit 23
contains the notations "refused job" and "called Assoc.
S. F. Hosp. 3-3." Innis' name next appears at the date of
March 3, 1976, immediately following Bill Miller, because,
according to Kelley, both refused referrals on that date and
were placed at the bottom of the list. In fact, as heretofore
found, there were no jobs for referral to Associated Con-
tractors. Opposite the March 3 entry are notations "called
6-8 Tobin no answer" and "called 8 10-76 no answer."
Innis testified that his wife was normally home during the
day. He testified that he received three calls from the
Union. The first was from Hency, late in the afternoon of
March 3. 1976 .
2' According to Innis, Hency told him there
was a job with Associated at the St. Francis project. Innis
said he was busy and would call back. He called back a few
minutes later, and told Kelley that he would have to make
a call. Innis testified that he could not understand why
Kelley was offering him a job, and suspected it was not
real. His suspicion was correct. According to Innis, he at-
tempted to speak to the Board's Field Examiner in St.
Louis, but there was no answer (Region 14 is normally
open from 8 a.m. to 4:30 p.m., and there is no arrangement
for receiving phone calls after closing time). He testified
that he again called the union hall, but there was no an-
swer. (The union hall closes at 5 p.m.) Innis claimed that he
called Region 14 because of the "ruling" that he would be
reinstated at Fruin-Colnon. However, the Administrative
Law Judge's Decision issued on June 3, 1976. Kelley testi-
fied that Innis said he wanted to talk to Bill Miller, and
that Kelley told Innis to call him (Kelley) at home. Innis
should have called Kelley at home. If a bona fide referral
were involved, I would agree with the Union that Innis'
evasions could reasonably be interpreted as a refusal of
employment. However, the offer was bogus, and Innis sus-
pected as much. Consequently, his response becomes irrel-
evant. and the Union improperly placed his name on the
bottom of the list.
Innis testified that he received the second call on or
about September 10, 1976. His wife answered the phone,
and Hency said he had a 3- to 4-day job and needed an
answer in half an hour. She called back and said she could
not reach Innis. According to Innis, about 2 weeks later,
Hlency called again, told him that he had one or half a
day's work. but then he told him to forget it, because he
would get someone else, although Innis indicated that he
would take the job. Hency testified that he did not call
Innis, but only placed calls for Kelley. Kelley testified that
he called Innis on June 8 and August 10, but there was no
answer on either occasion. Whether Kelley made a sincere
effort to contact Innis is questionable. Kelley's bogus offer
in March 1976 suggests otherwise. The Union made nu-
merous referrals on or about both June 8 and August 10, and
it is difficult to believe that Kelley could not reach Innis for
at least one of those jobs. There was no apparent urgency.
On June 8, Tobin requested 10 laborers, and they variously
reported to work on June 8, 9, and 10. I find that the Union
avoided offering any referrals to Innis prior to June 8, 1976,
and probably thereafter, because of Kelley's animus toward
him, and thereby violated Section 8(bXI)(A) and (2) of the
Act.
General Counsel contends that Joe Sachse should have
been referred to Tobin on March 11, 1976, instead of Pen-
nv Tucker, and that Owen Innis should have been referred
to Tobin on March 22, 1976, instead of Leo J. Berghoff.
Both were referred by the Union. Tucker's name does not
appear on General Counsel's Exhibit 23 until March II,
the day he was referred, and Berghoff's name does not
appear at all. Berghoff was classified by Tobin as a com-
H1 oth Innir and I red Kelles testified Ihat the call took place In late
afternoon (Clnsequently. I do not credit the testimony of Floyd Penns. 'ho
Illeged]s overheard the con ersation. thai it took place In the morning.
635
DECISIONS OF NATIONAL LABOR RELAT IONS BOARD
mon laborer, receiving the lowest rate of laborers' pay, and
Tucker was in the next classification, receiving an addition-
al 15 cents per hour. Neither was identified as having been
requested by name or qualification. Substituting Innis for
Sachse, in accordance with proper positions on the referral
list, I find that Innis should have been referred instead of
Tucker. Tucker worked for Tobin until at least earl) Sep-
tember 1976, as did Berghoff.
7. Don Hendrix
Hendrix began working as a laborer in October 1974. lHe
got his first referral from Menz through Bob Jackman.
Hendrix had no special qualifications. In 1975. he worked
for Corrigan and theh Alberici-Fruin-Colnon at the New
Madrid project until he was laid off on or about August 20.
He asked Dean Hency to put his name on the list, and his
name appears on the yellow sheet attachments of General
Counsel's Exhibit 23 at the date of August 25, 1975. About
2 weeks later, he was referred to a job with Triangle Insula-
tion. There is a notation at this entry "called no answer
Aug 26 for Lakin Const Co." However, this notation would
probably refer to 1975, when the Lakin job was in progress.
Hendrix testified that he worked for Triangle for about 2
weeks, again went on the list, was referred to Israel in early
October. was laid off on October 14. and again registered
for the list. His name appears on General Counsel's Ex-
hibit 23 as of October 15, 1975. At this entry are the nota-
tions "called 6 8 Tobin. Did not know where he was,"
"working Israel Bros" and "called no answer Aug 6- 1976."
Hendrix' next referral was to Penzel on September 2, 1976,
after this hearing commenced.
Hendrix testified that he signed a petition for the dissi-
dent movement, calling for a new election, at his home in
late October 1975, and attended five or six meetings of the
dissident movement. His name does not appear on the peti-
tions which were introduced in evidence by General Coun-
sel. He was not a leader in the movement, he did not testify
in any of the legal proceedings against the Union, and
there is no direct evidence that the Union knew of his ac-
tivities in the dissident movement. Other members who
signed the petitions are alleged by General Counsel as hav-
ing been favored in job referrals: e.g., Russell Crader, Paul
Pender, and Noble Milam. In sum, there is a paucity of
evidence that Kelley or Menz bore any particular animus
toward Hendrix.
Dean Hency testified that he believed he called Hendrix,
talked to some woman who said she did not know where he
was, and did not leave a message. Paul Menz testified that
Hency called Hendrix, but that he (Menz) probably made
some earlier calls. Kelley testified that he did not know
Hendrix and never called him. Hendrix testified that he did
not receive any calls or messages from the Union between
October 15, 1975, and September 2, 1976. During at least a
substantial part of this time, Hendrix was working as a
school janitor. He testified (in October 1976) that his wife
had been working for 3 or 4 months. He had a sitter for his
child, but she normally sat at her home. Consequently,
there was usually no one home when Hendrix was working.
He gave the Union only his home telephone number. Hen-
drix lived in Bell City, Missouri, and there is no evidence
that he was particularly well known to the union function-
aries. Hendrix was named as a discriminatee in the original
complaint. The notations opposite his name on General
Counsel's Exhibit 23, or at least some of them, appear to
have been after the fact and in anticipation of this litiga-
tion. However, it does not automatically follow from this
fact that there is not a grain of truth in them. In light of all
the circumstances, including the absence of animus and the
apparent difficulty which the Union might have encoun-
tered in contacting Hendrix, I am not persuaded that Gen-
eral Counsel has shown by a preponderance of the evi-
dence that the Union intentionally failed to call Hendrix or
did not call him in June and August 1976.
General Counsel contends that Hendrix should have
been called for referral to Tobin on April 5, 1976, instead
of Ciary Wilde. I do not believe that a violation of the Act
can be predicated simply upon a deviation of about 2
months from what General Counsel considers to be a prop-
er referral order. Therefore, I am recommending that the
allegation of the complaint with respect to Hendrix be dis-
missed.
8. Dave Newcomer
Newcomer began working as a laborer in 1970. He was
laid off from a job with Israel in mid-October 1975. He
registered on the out-of-work list and his name appears on
General Counsel's Exhibit 23 as of October 15, 1975. New-
comer testified that he signed a petition for the dissident
movement in 1976 and attended some of it, meetings. How-
ever, his signature appears on one of the petitions which Jim
Bollinger identified as having been distributed in October
1975. Newcomer was not a principal figure in the dissident
movement, he did not testify against the Union in any of the
various proceedings, and there is no direct evidence that the
Union knew of his activities in the dissident movement. As
with Hendrix. the evidence is insufficient to show union
animus against him.
Next to the October 15 entry on General Counsel's Ex-
hibit 23 is a notation that he did not go to the Blount job.
and another "sickness, not able to work." Newcomer's
name is crossed off and then reentered on General Coun-
sel's Exhibit 23. Newcomer testified that he went to the
union hall several times, but Hency told him nothing was
going on. In the spring of 1976, Newcomer suffered from
eye trouble. He went into the hospital on June 9, and his
right eye was removed on June I1. Newcomer testified
that, about 2 days before going into the hospital. he told
Dean Hency he was having eye trouble (without mention-
ing hospitalization), and about a week after his operation,
he went to the union hall wearing an eye patch. Newcomer
initially testified that he did not talk about being able to
work, but subsequently testified that he told Hency that he
would not be able to work for about 2 or 3 weeks. About
July I, Newcomer took a full-time day job with Stanley Bin
and Conveyor Company. Previously, he had done some
electrical work. Newcomer testified that, in late summer or
early fall, he received a job offer from the Union (his wife
took the call) but he turned it down, although he was phys-
ically able to work.
Dean Hency testified that he called Newcomer for a job,
636
I.ABORERS. 1.O(CAL NO. 282
that his wife, who answered the phone. said she thought he
would accept. hut that she later called back and said that
he could not work because of the ese operation. (Hency
testified that at this point he restored Newcomer's name on
the list.) Fred Kelley testified that he learned that New-
comer was going into the hospital when Mrs. Newcomer
called about insurance forms. Hlencv testified that on an-
other occasion, he called to offer Newcomrer a referral to
Blount Brothers. Mrs. Newcomer answered the phone.
called back, and told Hency that Dave was helping some-
one in Illinois and could not take the job. Hencv testified
about these conversations when he was called as General
Counsel's first witness General Counsel did not call Mrs.
Newcomer as a witness. nor was her absence explained. I
credit Hency concerning his conversations with Mrs. New-
comer. In view of his conversations which took place he-
fore the eye operation. I am not persuaded that llencs
made the offer at a time when the Union knew that New-
comer could not accept a job. I am also not persuaded that
the offer was a bogus one, as there was considerable refer-
ral activity in late May and early June. Nor does the evi-
dence show that the later offer was not made in good faith.
Paul Menz testified that Blount did not request any refer-
rals in 1976, but that its insulation contractor did so. and
that this was the job for which Newcomer was called in
August or September. General Counsel did not show that
no such referrals were made, as he did in the case of Associ-
ated Contractors. Unlike the situation with Joe Sachse and
Owen Innis, the Union did not present Newcomer with an
unreasonably short deadline for a response. I find that the
Union made good-faith offers of job referrals to Newcom-
er in or about early June and in or about August 1976, and
did not at any time intentionally fail or refuse to call New-
comer for referrals. General Counsel contends that New-
comer should have been called for work with Millstone on
April 7. As with Hendrix. I find that this assertion is an
insufficient basis on which to predicate a finding that the
Union failed and refused to refer Newcomer for "unfair,
arbitrary, irrelevant and invidious reasons."
9. Leonard Daniels
Daniels began working as a laborer in 1970. but some-
times worked outside the trade. He worked for Alberici-
Fruin-Colnon from October 21. 1974. until he was laid off
on December 16. 1975. He had varied experience. includ-
ing working as a foreman of a cleanup crew on the Alberici
project. He registered on the out-of-work list. and his name
appears on General Counsel's Exhibit 23 as of December
15, 1975. Thereafter he did not maintain his union mem-
bership. Daniels signed a dissident petition in October
1975. and attended three or four dissident group meetings.
However, there is no direct evidence that the Union knew
of his activity in the dissident movement.
The December 15 entry in General Counsel's Exhibit 23
contains notations indicating that Daniels was called on
June 8 and May 5. with "no answer." Daniels testified that
he remained at home for 3 to 4 months, then gave up wait-
ing and took other employment. and that thereafter there
normally was no one home to take calls during the day.
Daniels did not give the Union an alternative phone num-
her until October 1976. Dean Hency testified that Daniels
was not called before Mai 5. 1976. Kelley testified that he
did not know Daniels and never called him. Menz, whose
testimony was crucial in this matter, was inconsistent and
vague. He testified that he called "quite a few times." but
later testified that he called once or twice. Menz again fell
back on the stors that the call was for the insulating con-
tractor on the Blount job. although this allegedly occurred
some 3 or 4 months before Newcomer was called for that
job. Menz fell back on the unidentified insulating contrac-
tor a third time. for yet another date, in the case of William
Penrose. In the case of Newcomer, there was an actual
offer and refusal of referral. In the case of Daniels. I am
not inclined to accept Menz' self-serving, contradictory,
and uncorroborated testimony. absent specific evidence as
to the identits of the subcontractor, who was ultimately
referred. and when. Menz testified that a sitter told him
that D)aniels was not home, later told him that he was
working at a school, and on a third occasion said he was
driving a truck. Menz also testified that he thought Daniels
told him that he was driving a truck. However, Menz ad-
mitted that this was not the reason why he was not consid-
ered for referrals. Rather. Menz asserted, that he "just
didn't have any job to put him on." This was not true.
There were jobs to which Daniels could have been referred,
e.g., the Tobin jobs, which were serviced by Menz. More-
over. Menz' testimony indicates that he was in touch with
Daniels, knew or could easilv learn of his whereabouts, and
could have left messages for him if he so desired. Menz
testified that these conversations took place in April 1976:
i.e.. when the Union was referring applicants to Tobin and
Millstone. Daniels was not a victim of direct union animus.
Rather, he was simply brushed aside in favor of employees
who had the ear or favor of Kellev or Menz. Such obverse
discrimination is also violative of the Act. See Fruin-Col-
non. 227 NLRB at 65. 66 (case of Henry Durham).
General Counsel contends that Daniels should have
been referred to Millstone on April 7. instead of Brad
Wagoner, a close friend of Kelley's. This brings me back to
Joe Sachse, the discriminatee who registered for work
shortly before Daniels. As heretofore indicated. the Union
improperly referred Penns' Tucker and Leo Berghoff to To-
bin. On April 5, the Union also referred Gary Wilde to
Tobin, where he worked as a common laborer until in or
about June 1976. Although Wilde does not appear on Gen-
eral Counsel's Exhibit 23, he received a second referral (to
Israel on July 28). No special qualifications were involved
in the latter referral. In view of the fact that Menz. who
knew Daniels and was in contact with him, serviced the
lToin jobs. I find that an appropriate remedy in Daniels'
case can be measured by one of the Tobin referrals. It may
fairly he inferred that absent the discrimination against
them. Sachse would have been referred instead of Ber-
ghoff. and Daniels instead of Wilde.
10. Jim Bollinger
Prior to October 23. 1975. Bollinger was Fred Kelley's
right-hand man. He has been a union trustee since 1972 or
1973. was designated foreman or steward or both, and did
not find it necessar, to sign the out-of-work list until after
637
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
October 1975. Kelley grudgingly admitted that his former
friend was a good steward and foreman over concrete
work. Bollinger ran errands for Kelley and at his request
would "talk to the men." Kelley's mother was engaged in
the business of furnishing lunches at construction sites.
Bollinger testified that he talked to men who refused to buy
the lunches, because Kelley said that, if they did not, he
would "run their ass off the job." Kelley denied that there
was any discrimination against employees who refused to
take the lunches, but did not deny conveying the threat
through Bollinger.
Bollinger testified that he left the Fruin-Colnon P & G
"Charmin" job on October 23, after he heard about the
shooting incident in Cape Girardeau. He testified that he
did not go to the union hall until late December, because
he was afraid to go there alone. Bollinger further testified
that Dean Hency offered to let him come in on a Saturday,
and that he came in and registered on the list after check-
ing to make sure that Kelley and Menz were not around.
However, Bollinger's name appears on General Counsel's
Exhibit 23 only at the date of February 23. Hency did not
testify as to the alleged conversation in December. He tes-
tified that Bollinger came to the hall in February 1976, to
have his name put on the list, but asserted that he only
knew this by reading General Counsel's Exhibit 23. As be-
tween Bollinger and the bogus referral list, I credit Bolling-
er. I find that Bollinger should be deemed as having regis-
tered on December 27, the last Saturday in December. In
light of this and additional evidence discussed hereafter,
the inference is warranted, and I so find, that Kelley in-
structed Hency not to place Bollinger's name on the list
until a later date, in order to avoid a claim that he was
entitled to job referrals.
As far as getting referrals, Bollinger knew that he was in
deep trouble. Figuratively speaking, Bollinger was at the
top of Kelley's "enemies list." He testified that he gave
Hency three telephone numbers where he could be
reached. The first was at the home of his former wife. The
second was that of Q. T. Masonry, which had a full-time
secretary. The employer was a friend of Bollinger's. The
third was that of Bollinger's girl friend, where he was liv-
ing. Had the Union been acting in good faith, Bollinger's
action would have been superfluous. Before October 23,
Kelley had frequently called Bollinger at his former wife's
home and at his girl friend's home, and he had often visited
the latter. Hency testified that he had also called Bollinger
at his girl friend's home. The girl friend changed her tele-
phone number in October 1975; however, Bollinger testi-
fied that he gave Hency the new number. Bollinger's for-
mer wife had the same number during most or all of 1975
through 1976. The Union was also keeping close watch on
Bollinger's activities on behalf of the dissident movement.
Indeed, the Union proffered testimony concerning numer-
ous alleged acts of misconduct by Bollinger and other dis-
sident activists. In light of this evidence, the Union's de-
fense in Bollinger's case can fairly be characterized as
frivolous. The Union's assertion, in sum, was that they did
not know where or how to reach him. The only telephone
number listed for Bollinger on General Counsel's Exhibit
23 was that of Stoval Brick Block Company. The entry
contains the notations "called 8-2 76 Win Bollinger did
not know him" and "called Block Co did not know him."
Bollinger testified that he never heard of the number until
he was told by counsel for the General Counsel that it
appeared on General Counsel's Exhibit 23. Hency, Kelley,
and Menz testified, in sum, that they called the Block
Company and could not reach Bollinger. Kelley also
claimed that he called Bollinger at his ex-wife's and at his
girl friend's house, but the operator said both numbers
were disconnected. Menz testified that he talked to a Kevin
Bollinger, and Kelley testified that he talked to a Win Bol-
linger, but that neither knew Jim Bollinger. Menz testified
that he probably called in September 1976; i.e., after the
hearing opened with Bollinger present at the counsel table.
The current numbers for Bollinger's former wife and
the Q. T. Masonry number are indicated on the unfair la-
bor practice charge which was filed by Bollinger on June 2,
1976, and received by Menz and Hency the next day. Hen-
cy gave the game away. He admitted that he knew he could
reach Bollinger at his girl friend's house, but that Menz
told him to use the number on the list. Consequently, Bol-
linger was never called for a referral. I credit Bollinger, and
find that the Union deliberately avoided calling him for
any referrals because of the animus which Kelly and Menz
bore toward him.
General Counsel contends that Bollinger should have
been referred to Tobin on April 9, 1976, instead of Edward
Horton, who had worked for Reintjes Construction Com-
pany under the old B & C contract from August 14, 1975,
to about January 28, 1976. Horton's name appears on Gen-
eral Counsel's Exhibit 23 as of February 3, 1976. 1 agree.
Horton did some grade checking work, and received a
commensurate rate of pay. There is no evidence as to
Bollinger's or Horton's qualifications with respect to grade
checking. However, the job involved concrete work, at
which Bollinger, having been foreman of a concrete crew,
was particularly well qualified, and presumably familiar
with all aspects of the laborer's work. Moreover, Tobin
Paving Superintendent Don Schutt testified that the grade
checking work could be learned on the job, because Tobin
had its own instrument man. Horton worked for Tobin
until at least September 1976.
11. William Penrose
Penrose began working as a laborer in 1974, when he
obtained a referral through his brother-in-law, Noble Mi-
lam. He had varied experience, including working as a hod
carrier, and Menz indicated that he had some knowledge
of Penrose's experience, including his ability to work at
heights. Penrose worked for Reintjes from July 25, 1975,
until December 31, 1975, when he was laid off. He regis-
tered on the out-of-work list the following Monday, Janu-
ary 5. Penrose lived in a trailer, but he left the telephone
number of his father, a disabled worker who was normally
at home. Penrose's name appears on General Counsel's Ex-
hibit 23 at January 5, 1976, the day he registered, and on
the yellow sheets at July 23, 1975. His name is crossed off
at both places (possibly intended to indicate that he was
638
LABORERS, LOCAL. NO. 282
referred to work), and there are no notations. Penrose testi-
fied that he received no messages from the Union until
August 1976, when Milam told him that Menz had a job
for Penrose. Penrose did not identify the job, although
Menz indicated that it was with Blount's insulation sub-
contractor. Penrose worked at the job until about October
1, 1976, when he was laid off and subsequently registered
on the out-of-work list. Menz testified that he was recalled
by the subcontractor but declined to return. Penrose testi-
fied that prior to his referral he called Hency about a job,
but was told that it did not look good.
Penrose did not participate in the dissident movement,
and there is no evidence that Menz bore any animosity
toward Penrose. (Kelley did not know him.) Menz testified
that he unsuccessfully tried several times to reach him by
phone at his old telephone number and at his father's
home, and finally located him through Milam. His testi-
mony is corroborated to some extent by the fact that Pen-
rose was contacted through Milam. and that fact also tends
to indicate a sincere effort to locate Penrose. General
Counsel contends that Penrose should have been referred
to Millstone on April 12, 1976, instead of Zeno Blattel.
Allowing the Union some leeway, I find that Penrose
should have been called for a referral at least by June 8,
when 10 applicants were referred to Tobin, some of whom
had only recently been referred to other jobs. However. I
am not persuaded that General Counsel has carried the
burden of showing that Penrose was not called before Au-
gust 1976. Consequently, I am recommending that the alle-
gation of the complaint with respect to Penrose be dis-
missed.
12. Jack Tomlin
Tomlin began working as a laborer in May 1974. He
worked for Alberici-Fruin-Colnon at the New Madrid
project from September 1976 until January 9, 1976. when
he was laid off. Tomlin testified that he signed a petition
for the dissident movement at the project, and his name
appears on one of the petitions which were presented in
evidence. Tomlin was one of six laborers, including Fore-
man Bobby Jackman, who left the jobsite on October 23.
when Bollinger called to tell them about the shooting at
Cape Girardeau. The Union used this incident as a pretext
to cause Jackman's discharge. but the Board found that the
Union did so because of Jackman's actions in promoting
and circulating the petitions. .41herici-Fruin-Colnon. 226
NLRB at 1322. Tomlin was present at the October 24 inci-
dent involving Ralph Brant, and he testified for the Gov-
ernment in both criminal proceedings against the union
officials. I find that at least as of October 24, 1976, the
Union knew or suspected that Tomlin was a principal fig-
ure in the dissident movement.
Tomlin testified that he signed the out-of-work list on
January 10, 1976, and General Counsel's Exhibit 23 shows
his name at that date. However. January 10 was a Satur-
day. The names of two other applicants who, according to
Tomlin signed the list ahead of him, appear as of January
9. I find that Tomlin registered on January 9. 1 omlin testi-
fied that he has received no calls or messages from the
Union since that time. General Counsel's Exhibit 23 con-
tains the notation "called running a rest. Hick Pit BBQ."
His name was not crossed off. Menz and Hency testified
that they did not call Tomlin for any referrals. Kelley testi-
fied that he called Tomlin twice during 1976. The first time
was allegedly during the summer. Kelley testified that
Tomlin said that he was trying to make a living in the
barbecue business. Kelley testified that the second time,
allegedly a couple of months later, Tomlin told him that he
had burned his hand barbecuing. Tomlin testified that he
worked for Jim Turner in a restaurant known as the Old
Hickory Smoke House from June 2 to mid-August 1976.
Tomlin was unable to explain an article in the local news-
paper dated May 30, 1976, which stated that Tomlin was
opening a restaurant. I have previously indicated that I
have ample reason to question the credibility of Kelley. I
have also found Tomlin to be a less than reliable witness.2 2
However, Kelley's testimony is somewhat inconsistent with
testimony of Menz concerning a conversation between
Menz and Tomlin. Tomlin testified that in the summer of
1976, at a job in Lutesville, he saw carpenters doing labor-
ers' work, and called Menz to complain about it, because
he and others were out of work. Menz and Tomlin differed
in their versions of this conversation, but Menz admitted
that Tomlin made the complaint. If Tomlin were engaged
in the restaurant business and no longer interested in refer-
rals, why would he have made the complaint? At least, one
might reasonably have expected Menz to question Tomlin
as to how he knew this, and why someone in the restaurant
business would care about it. However, Menz did not testify
that he questioned Tomlin along this line. The Union witness-
es also failed to explain why Tomlin's name was not crossed
off the list, or why Tomlin was not called before the summer
of 1976. I1 credit Tomlin's testimony that he was not called
for anyjob referrals. I find that the Union did not call Tomlin
because of his activities in the dissident movement, and used
Tomlin's alternate occupation as a pretext.
General Counsel contends that Tomlin should have been
referred to Penzel on April 12, 1976, instead of Ray Pu-
llam. However, Penzel's records indicated that Pullam
worked for Penzel in December 1975, and he may have
been recalled. The nearest alleged improper referrals were
those of five employees who were referred to Millstone on
the same date. I have heretofore found that Edward Ad-
ams and Zeno Blattel were previously improperly referred.
Terry Bock's name appears on General Counsel's Exhibit
23 as of October 28. 1975. The remaining employee was
Nelson Fiedler, whose name appears on General Counsel's
Exhibit 23 as of March 31. Fiedler, a personal friend of
Kelley's, enjoyed almost continuous employment during the
lean months of the 1975-76 season. Fiedler worked for Fruin-
I omlin', teiiimons in the criminal conspiracy case concerning the Oc-
tlber 24 incident m3terialls, differed from that of the other witnesses. and
indicalted a tendency on his parl to exaggerate. Tomln testified that he and
olher, personall I signed Ihc otll-of-work hil. although this would have been
urnu;ull. Iltern! normalls. enltered the naimes on the lisl. Tomlin's teslimonv
concelning Ihe others Ah.o signed before him conflicted with his insesligato-
r, iffid.la ii
639
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Colnon from December to the end of March, for Millstone
until July 21, and for Israel from July 28 to August 20. Fiedler
was not requested by name or skill, or pursuant to any
affirmative action program. I find that Tomlin should have
been referred to Millstone instead of Fiedler.
13. Shirley Hawkins
Hawkins was not presented as a witness, and General
Counsel has not explained his failure to call him. Hawkins
was laid off from Blount on January 9, 1976, and his name
appears on General Counsel's Exhibit 23 as of January 12,
1976, and there are no notations. There is no evidence that
he participated in the dissident movement or otherwise in-
curred the displeasure of Kelley or Menz. Kelley testified
that he did not know Hawkins and never called him, and
Hency testified that he did not recall calling him. Paul
Menz knew Hawkins and knew something about his quali-
fications. Menz testified that he had not seen Hawkins
since Janaury 1976. and that he called him several times
during the summer but there was no answer. Absent testi-
mony from Hawkins, I am not inclined to discredit Menz.
I do not regard the absence of the notations as being of
crucial significance, as Kelley and Menz often called em-
ployees without regard to the list or without making nota-
tions of inability to reach a particular individual. I also do
not consider General Counsel's assertion that Hawkins
should have been called on April 16, instead of during the
summer, as a sufficient predicate for finding a violation of
the Act. Therefore I am recommending that the allegation
of the complaint with respect to Hawkins be dismissed.
14. James Harper
Harper began working as a laborer in 1969, and had
varied experience. He signed a petition for the dissident
movement, attended some of its meetings, was present at
the October 24 incident, and testified for the Government
in the criminal conspiracy trial. I find that at least as of
early February 1976 (when he testified) the Union knew or
suspected that he was active in the dissident movement.
Harper was laid off from Reintjes on or about January 16.
1976, and registered on the out-of-work list on January 19,
1976. His name is entered as of that date. Harper testified
that thereafter he was home about 80 percent of the time,
but that he received no calls until in or about August 1976.
when Hency called and said that he had to have an answer
right away. Harper told Hency that he could not take the
job right then because his son had smashed his thumb, and
Hency said he would get someone else. Harper testified
that, beginning in March or April 1976. he occasionally
sold cars from his home (buying used cars, repairing and
then selling them) and could hear the telephone from his
garage where he worked. Harper advertised in the local
paper, and his activity was commonly known in Cape Gir-
ardeau, where he lived. He denied ever refusing a referral
for this reason. At the January 19 entry on General Coun-
sel's Exhibit 23 is the notation "called selling cars." His
name was crossed off the list. Fred Kelley testified that he
talked to Harper about January 19, about going to work.
but that Harper said that he did not want to work because
he and another person were selling cars. Paul Menz testi-
fied that he called Harper, in February or March, but Har-
per said he was babysitting and could not go. I find their
testimony incredible. What Kelly and Menz are claiming,
in essence, is that, while other employees, including some
who had done nothing to incur their wrath, were waiting
for months for a referral, they repeatedly offered work to
Harper from the day he registered on the list. This alleg-
edly occurred during a slack winter, when there were a
relatively small number of referrals available. I find it un-
likely that Harper would have refused employment at his
regular work because of a sideline occupation which he
could have easily performed during the evening or week-
ends. Rather, Kelley and Menz were simply engaging in
their game of dredging up pretexts for not referring active
dissidents. In view of the large number of referrals
throughout late July and August, and the absence of any
apparent urgency. I find that the Union seized upon
Harper's temporary predicament (when Hency called) as a
reason for not referring him. I find that the Union never
made a bona fide offer of a job referral, and avoided refer-
ring Harper because of his activities on behalf of the dissi-
dent movement.
General Counsel contends that Harper should have been
referred to Beasley on May 26, 1976, instead of Larry
Moore. Moore's name appears on General Counsel's Ex-
hibit 23 at September 26, 1975, and again at May 3. 1976.
He worked for Millstone for about 3 weeks in April. and
apparently registered on the list after being laid off from
Millstone. Beasley was engaged in a bridge construction
project at Cairo. Illinois, in which one-half of the laborers
were referred out of the Union and the other half (through
the Union) out of a sister local in Illinois. Paul Menz testi-
fied that he thought Moore and two other laborers were
requested by name because they were deckhands. How-
ever, Beasley Project Supervisor James McGraw testified
that no employees were requested by name, that he did not
know if Moore was experienced, and that Beasley trained
some laborers. Harper did not have experience as a deck-
hand. However, he had experience in working at heights.
and Menz knew this fact. [ do not credit Menz' assertion
concerning decklhands. I find that Moore was not request-
ed by name or skill, and not referred by skill. Consequent-
ly, Harper, who had been out of work since January, was
entitled to referral ahead of Moore. Moore worked for
Beasley until about June 16. 1976.
15. Billy Mansell
Mansell is Paul Menz' stepson. He was not presented as
a witness by either side. Mansell worked intermittently on
union jobs for several years, and served as foreman for
Alberici-Fruin-Colnon. His name appears on General
Counsel's Exhibit 23 as of January 23, and there are no
notations. Mansell was present among the defense witness-
es at the embezzlement trial, but was not called to testify.
There is no evidence that Menz bore any ill will toward
Mansell. Menz testified that Mansell lives in the Cape Gir-
ardeau area, and has had very little employment in the past
year. Neither Kelley nor Hency called Mansell. Menz testi-
640
LABORERS. LOC AL NO. 282
fied that he did not call Mansell for referral because he dlid
not have any work for him. This was not true. Mansell had
been on the out-of-work list since January 23. was a quali-
fied laborer, and was entitled to at least one job referral in
preference to others who registered at a later time or who
received more than one referral. 1'he actual reason is re-
flected in other testimony by Menz. Menz testified that he
tried to "disinterest" Mansell in laborers' work because
"he's got a pretty good education." Menz avoided referring
Mansell in order to prod him into seeking what Menz con-
sidered more suitable work. The question thereby posed is
whether such conduct is proscribed by the Act. I find that
it is. Menz' opinion as to Mansell's career was a personal
matter between them. However. in his capacity as business
manager. Menz was required by law to refer applicants in a
nondiscriminatory manner. Mansell registered on the out-
of-work list, thereby indicating that he wished laborers'
work, and he never told Menz otherwise. Menz' opinion of
what career an applicant should choose, whether the appli-
cant be a relative, friend, or neither, was an arbitrary and
irrelevant consideration and. consequently, his failure to
refer Mansell for this reason was violative of Section
8(b)(l)(A) and (2) of the Act.
General Counsel contends that Mansell should have
been referred to Tobin on June 8. 1976. instead of Jack
Lancaster. However, this contention is based on a recon-
structed referral order which I find unnecessarN to consid-
er. The next name on General Counsel's proposed list is
Terry Bock. However, Tobin's records do not reflect that
Bock worked for Tobin. 2 ' The next name on General
Counsel's list is Russell Crader. However. Crader appar-
ently registered on the out-of-work list on Januar, 19. 4
days before Mansell. The next name is that of L.arry Dan-
iel, Fred Kelley's brother-in-law. Daniel's name appears on
General Counsel's Exhibit 23 as of May 4. 1976. He
worked for Fruin-Colnon until January 30(, 1976. and for
Millstone for 3 weeks in April 1976. Daniel worked for
Tobin as a common laborer from June 8 until about July
24, 1976. He was one of 10 laborers requested by Tobin on
June 8. Tobin Paving Superintendent Don Schutt testified
that he requested that most of the crew: have experience in
concrete. Menz claimed that he referred men to Tobin
from the list, but did not claim that Mansell was not quali-
fied. Considering Mansell's lengthy experience, and the
large amount of laborers' work involving concrete, it is
probable that Mansell had what little qualification was
needed for this job. I find that Mansell should have been
referred to Tobin instead of Daniel. However, my findings
are subject to the Union's right to show at the compliance
stage of this case that Mansell was unavailable for work
during the period that General Counsel contends that he
was eligible for referral.
16. Ernest Brown
Brown began working as a laborer in 1969. He worked
for Reintjes at the New Madrid project from June 19. 1975,
2' Bock wuorked for I ruin-( ohlno.n ii he fall of 19i7> ma iuh~edpimuteni
worked fo r Mililstone and Peniei
until Januar> 28. 1976. He worked as a foreman for a pe-
riod of time. Brown signed a petition for the dissident
group at the jobsite. having been asked by Leon Stricklin.
Both were among the five employees who left the jobsite
with Bobby Jackman on October 23. Brown was also pres-
ent at the October 24 incident. He attended meetings of the
dissident group and was present as a spectator at the two
criminal trials in St. Louis. I find that as of October 24,
1975,. the Union knew or suspected that Brown was active
in the dissident movement. Brown registered on the out-of-
work list on February 2. 1976. and his name appears on
General Counsel's Exhibit 23 as of that date. Brown's next
referral was in late September 1976, about a month after
this hearing opened. when he was called by Hency. Pur-
suant to this call, Brown worked for American Gunite
Corp. from September 28 to November 4. 1976.
Brown testified that he received no calls or messages
from the Union betwen February 2, and late September
1970, and never refused a job. He testified that he was
normall, in and out of his home, that his wife began work-
ing in June or July 1976, but that his school age sons were
normallx home after 3:30 p.m. Paul Menz testified that he
did not call Brown but told Dean Hency to call him. Hen-
cs initialls testified that Kelley or Menz called Brown but
laiter testified that he did not know if he himself called
Brow n. Fred Kelley testified that he called Brown in the
spring of 1976, but no one was home. I do not believe
Kelley. in part because of an incident which demonstrated
both the Union's animus toward Brown and the arbitrary
manner in which the . nion operated its referral system. In
the spring of 1976. Statler was about to begin work on
Schnucks-Walgreen project. Brown, who was anxious for
work. asked Statler President Jack Statler if he could inter-
cede with Kelle, and get him a job. The conversation took
place at the project site, and Kelley was nearby. At the
time Statler needed common laborers, and was not seeking
a hod carrier. Statler asked Kelley if Brown could work on
the job. Kelle, suddenly became a meticulous observer of
protocol. and said that he would have to check the list
when he got back to his office. Kelley never contacted Stat-
ler, who eventualls concluded that he could do without a
man for a while. (Kellev's procrastination contrasts mark-
edls with the assertions of Kelley and Menz that they re-
ferred men with dispatch in order to avoid loss of jobs to
their members.) In earl, June. about a month or two later,
Statler found that he needed a man. He requested a hod
carrier. Kelle, said the Union had none. By this time, Stat-
ler had given up on getting Brown. He did not know
whether Brown was working elsewhere and, as an alterna-
tic. he requested Kelles's friend Timothy Vickery. Kelley
agreed. and \'ickery was promptly cleared. Kelley testified
that he permitted Statler to exceed the contractual limita-
tion on the number of employees that Statler could hire
directl'. because of a shortage of hod carriers. However.
\VickerN. like Brown. was not a hod carrier, and Vicker', 's
namie did not even appear on General Counsel's Exhibit
23i.
Kellcxs serlin of ihere escnti diffa r, fron t h.i of SI ilcr .'s ht c
.
ll
Staller. Ih o 11a\ Ihe con,,ldCred l ,111 ilp lrtll willn e .ard Kell,, I rt'Il
S ialler
641
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brown's name is crossed off at the February 2 entry.
Opposite the entry is the notation "called working Daniel
Const. Springfield." Brown testified that in the summer of
1976, acting on his own, he obtained 2-1/2 days' work for
Daniels Construction Company in Fulton, Missouri. by
clearing through the Laborers' Local in Jefferson City.
Neither Hency, Menz, nor Kelley claimed to have called
Brown, Daniels, or the Jefferson local about the job. Rath-
er, Menz and Kelley testified that, at a union meeting,
member Bill Borneman said, for no apparent reason, that
Brown had gone to work for McDaniels Construction
Company in Columbia. Before this testimony, Borneman
had testified as a witness for General Counsel concerning
union meetings in the summer of 1976. (Some of this testi-
mony will be discussed, infra.) However, on cross-examina-
tion, Borneman was not questioned about the alleged refer-
ence to Brown. I do not credit Kelley and Menz. Rather, I
find it more probable that the Union learned through its
sister local that Brown had obtained work through the lat-
ter, and seized upon this fact as a pretext to strike his name
off the list. In fact, the Union had no policy of striking
applicants off the list if they obtained work outside of the
referral system, particularly without communicating with
the applicant. I find that the Union deliberately refused to
refer Brown because of his support of the dissident move-
ment.
General Counsel contends that Brown should have been
referred to Tobin on June 8, 1976, instead of James Mack,
whose name appears on General Counsel's Exhibit 23 as of
May 21, 1976. Mack worked for Reintjes at the New Ma-
drid project from May 15, 1975, to February 13, 1976. Al-
though laid off later than Brown, he enjoyed considerably
more success in obtaining union employment. He worked
for Millstone from April 16 to May 20 (General Counsel
contends that this referral was also improper). Thereafter,
Mack was referred to Tobin, where he worked until at least
September. He was not requested by name or skill and was
not referred by skill. I find that Brown should have been
referred instead of Mack.
17. William Leon Stricklin
Stricklin began working as a laborer in 1969 or possibly
earlier. He worked for Reintjes at New Madrid from June
13, 1975, to January 28, 1976. Stricklin was one of the em-
ployees who left the jobsite with Bob Jackman on October
23, and he accompanied Ralph Brant at the jobsite inci-
dent involving Brant the next day. He testified against the
Union in Alberici-Fruin-Colnon, before a grand jury on
January 27, 1976, and at the criminal conspiracy trial. Fol-
lowing the October 24 incident, Stricklin filed a charge
with the local prosecuting attorney alleging that Kelley had
carried a concealed weapon. There was no prosecution.
Stricklin testified that he thought he registered on the
out-of-work list on Tuesday (February 3) and that he went
with Jim Harper. However, Stricklin and Ernest Brown
were laid off from Reintjes on the same day (January 28),
and Stricklin's name appears on General Counsel's Exhibit
23 as of February 2, 1976, immediately after Brown. I find
it more probable that Stricklin did not receive any referrals
until early September 1976, when Hency called for a bridge
job with Penzel. Stricklin was still working for Penzel as of
October 22, 1976. Stricklin testified that his wife was nor-
mally home to receive calls, but that he did not receive any
calls or messages from the Union until September when his
wife took the call from Hency.
There are no notations concerning calls at the entry on
General Counsel's Exhibit 23. Hency testified that he did
not recall calling Stricklin. Menz testified that he called
once at night, from his home, that Stricklin's wife said he
was at a beer joint and she would try to reach him, but that
Stricklin never returned the call. Menz did not identify
either the job or the date or approximate date of the al-
leged call. I do not credit Menz, because certain testimony
by Fred Kelley indicates that Stricklin was arbitrarily cut
off from referrals. Kelley testified that, in his opinion,
Stricklin was crippled and handicapped for hard labor, in-
cluding climbing and heavy work, that he did not call
Stricklin, and that he instructed Hency not to call Stricklin
for three jobs, including Tobin, because of his alleged
physical disability. Hency did not corroborate this testi-
mony and Kelley admitted that he never refused to call
Stricklin because of his handicap, but let Stncklin make his
own decision. In fact, Stricklin did not have any handicap
which prevented him from performing laborers' work, and
Kelley knew this. Stricklin testified that he walked with a
limp because of a hip injury which he suffered when he was
26, but that this did not interfere with his work, and that he
could perform any type of laborers' work. Stricklin had
varied experience including operating a chain saw, drilling,
hod carrier, and serving as a foreman of hod carriers. Kel-
ley admittedly knew that he had worked as a hod carrier.
The Penzel job to which Stricklin was eventually referred,
involved, like the Tobin job, working with concrete, and
also involved working at heights. Moreover, Kelley and
Menz repeatedly exhibited a disdain for employer prefer-
ences when it conflicted with their own. When Kiefner at-
tempted to fire Steward Jerry Brown from the Schnucks-
Walgreen job because of what Kiefner viewed as Brown's
indifference to working, Menz simply had him transferred
to the general contractor's payroll. Kelley referred to Mc-
Carthy, an employee with a known drinking problem
which Kelley had previously sought to conceal from Fruin-
Colnon.25 As heretofore found, Kelley's animus toward Er-
nest Brown was sufficiently great as to actively prevent him
from getting a job. In the case of Stricklin, who played a
large role in the dissident movement, the animus was great-
er. I find that the Union avoided referring Stricklin be-
cause of his participation in the dissident movement.
25 I do not credit the testimony of Foreman Stew ard ILarrs Burlford that
he personally hired the employee (whom he did not know) Burford testified
that on F riday afternoon. July 16, Mc( arths said it needed a finisher-helper
on Mondly, that he did not call Kelley until Sunday night because "It
shpped my memors," that Kelley's line was busy. and so he went down to
the union hall at 7:30 Monday morning and took the emplosee to the job
hecause he was the ionly one at the hall Burford's testimony Is incredible.
Kelley jeilousls guarded his prerogatives and probably would have had
Buirfiord fired if he hald done an)ihing like this
642
LABORERS, LOCAL NO. 282
General Counsel contends that Stricklin should have
been referred to Tobin on June 8, 1976. instead of John
Mack, whose employment history closely parallels that of
James Mack. That fact, and their common surname and
telephone number, suggests the possibility that they were
accommodated by being referred to the same jobs. John
Mack's name appears on General Counsel's Exhibit 23 at
January 19, and again at May 21 (crossed off both times).
He worked for Reintjes from May 15, 1975, to January 16,
1976, was referred to Millstone where he worked from
April 16 to May 20, 1976, and was referred to Tobin, where
he worked unil at least September 1976. I find that Strick-
lin should have been referred to Tobin instead of John
Mack.
E. Findings Concerning Additional Alleged Improper
Referrals
There remains a question of whether, absent the discrim-
ination against them, any of the discriminatees would have
been entitled to an additional referral. The question is ad-
dressed to the first seven discriminatees whom I have
found were entitled to referral to short jobs during the win-
ter months; i.e., relatively early in the period in issue. The
evidence with respect to all 16 discriminatees indicates
that, absent the discrimination against them, they would
have waited from 3 to 5 months for a job referral at any
time during the period in issue. It may fairly be inferred
that the discriminatees, upon being laid off. would have
again registered on the out-of-work list. Therefore, the evri-
dence indicates that, if the first seven discriminatees
worked the same length of time as the employees who were
improperly referred in their place,2 1 the)y would have been
entitled to an additional referral. I will not attempt to re-
construct a referral order in order to determine when each
of the seven would next have been referred to a job. Hovw-
ever, I have determined that an appropriate remedy may
be measured by referrals to the Israel job. In July and Au-
gust 1976, the Union referred some 23 laborers to Israel's
highway project in Marble Hill. Missouri. (Parenthetically.
it may be noted, in view of Menz' and Kelley's professed
interest in referring employees who would not have to trav-
el far to work, that Jim Bollinger lives in Marble Hill.) The
laborers' work lasted until August 20. but involved sub-
stantial overtime. General Counsel contends that 17 of the
referrals, including the first 7 on July 21. were improper.
None of those seven (Charles Edmunson. Michael Fiedler.
Elvis McCrite, Donnie Milam. E. 1.. (Bud) Moore. Rick
Schlitt, and Timothy Vickery) appear on General Coun-
sel's Exhibit 23. McCrite worked for BuckleN from about
September 9, 1975, to about March 30. 1976, and for Tobin
from June 23 to about July 10. Schlitt worked for Drew
from June 15 until about July 2, 1976. Vickery (discussed
previously) worked for Statler until sometime in July 1976.
Israel brought some laborers from St. Louis: however, they
were paid union scale for the St. Louis area, and this fact
differentiates them on Israel's records from the employjees
2 /am as.suming on the basil of thc e; idence heforc tle mh thai sh ,tild
have done soi. If emploter records Indicate other.ise. a;tn :appropall e dtler-
minatint mnaIs he mbie in the Ciripli;Inire ai.ige ' f this ac'e
who were referred by the Union, including the seven
named above. None of the referrals was requested by name
or qualification. I find that the first seven discriminatees
were entitled to be referred to Israel instead of the seven
who were referred on July 20, 1976. By this date, 5 months
after the last of the seven discriminatees would have been
laid off if properly referred, they would have been entitled
to another referral.
As indicated throughout this Decision, I have not placed
strict reliance on General Counsel's reconstructed referral
order, even when there is evidence that specific contentions
in this regard are probably correct. Due consideration must
be given to the fact that Kelley and Menz misled employ-
ees, including some of their favorites, by leading them to
believe that they could obtain referrals without registering
on the out-of-work list. The evidence also indicates that the
1975-76 season was in fact a relatively lean period for con-
struction work in comparison with prior seasons, and this
factor must also be taken into consideration in determining
the probabilities of job referrals to the alleged discrimina-
tees. I am also mindful of the Supreme Court's admonition
against going beyond sanctions aimed "at specific discrimi-
natory practices" to "establish a broader, more pervasive
regulatory scheme." Local 357, International Brotherhood of
Teamsters, C'hauffeurs. (11arehousemen and Helpers of Amer-
ica (California Trucking Assn.), 365 U.S. 667, 676 (1961).
('onsequently, I have been constrained not to find a viola-
tion of the Act in those situations where General Counsel's
case rests solely on a less than extreme deviation from an
apparently proper referral order. What I have found is
that, absent the evident discrimination against them, the 16
discriminatees would have been referred to I and in some
cases, 2 jobs, and that General Counsel's reconstructed re-
ferral order. as modifed by my findings herein, fairly re-
flect the approximate dates andjobs to which they would have
been referred. In fact, the discriminatees were improperly
passed over many times.
I have not passed upon every referral alleged as improp-
er. and consequently I have not found it necessary to pass
upon all of the factual and legal arguments made by Gen-
eral Counsel in his able brief. As my recommended Order
is designed to prohibit the Union from operating its referral
system in a discriminatory manner, consideration of some of
General Counsel's propositions might be desirable in order
to more fully apprise the Union of its rights and
obligations and the employees of their rights under the Or-
der. However, such consideration is not feasible. General
Counsel contends that the Union cannot select foremen
and stewards on any arbitrary, irrelevant, or invidious
grounds. However, General Counsel has not alleged any
specific occasion on which a person was improperly re-
ferred as a foreman or steward in preference to one of the
discriminatees. Indeed, General Counsel apparently avoid-
ed naming foremen and stewards in its reconstructed refer-
ral order. In .41herici-Fruin-Colnon, supra, the Board found
that the Union violated Section 8(b)(1)(A) by discriminato-
rily causing the Employer to terminate Bobby Jackman as
foreman. However, in concluding that such action was un-
lawful, the Board took into consideration the context in
which the Union's action took place. As to stewards, see
also General American Transporation Corporation, 227
643
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NLRB 1695 (1977). No useful purpose would be served if I
attempted to grapple in the abstract with this untested
proposition of law. Miranda Fuel Company, Inc.. 140
NLRB 181 (1962), reversed 326 F.2d 172 (C.A. 2. 1963).
cited as authority by General Counsel, does not deal specifi-
cally with this issue. General Counsel also contends that the
Union was responsible for the actions of Foreman-Steward
Larry Burford in selecting employees for hire by McCarthy
outside of the referral system. In the one situation in which
I considered an allegation that Burford independently select-
ed an employee, I found that the employee was in fact referred
or approved for referral by Kelley. Of course, the Union is
bound by Section 2(13) of the Act and by the rules of agency.
However, the existence of an agency relationship is de-
termined by the facts of the case.
CONCLUSIONS OF LAW
I. AGC and its employer-members including Millstone,
Tobin. Beasley. Drew. Israel. Penzel, and Potasnick. the
employer signatories to the B & C contracts. including B &
W. Brooks. Buckley. Birk, Kiefner., McCarthy, Penzel, and
Statler, and Fruin-Colnon, are employers engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discriminatorily refusing to refer Don Bollinger.
Jim Bollinger. Ernest Brown, Leonard Daniels, James Har-
per, Owen Innis, William Miller. Billy Mansell. Norman
Morill, Willard Null. Ricky Pobst. Bob Sachse. Joe Sachse.
Mike Sachse, William Leon Stricklin, and Jack Tomlin for
employment by various employers who are parties to ex-
clusive hiring hall arrangements with the Union, including
Potasnick. Buckley. Fruin-Colnon. Tobin, Millstone, Beas-
ley, and Israel, the Union has caused and attempted to
cause employers to discriminate against said employees in
violation of Section 8(a)(3) of the Act, and the Union
thereby has engaged, and is engaging, in unfair labor prac-
tices within the meaning of Section 8(b)(1)(A) and (2) of
the Act.
4. General Counsel has not sustained the allegations of
the complaint, with reference to Shirley Hawkins, Don
Hendrix, Davie Newcomer, and William Penrose. Jr.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
TiiE RFMD)¥
Having found that the Union has violated and is violat-
ing Section 8(b)(1)(A) and (2) of the Act, I shall recom-
mend that it be required to cease and desist from such
violations and take certain affirmative action designed to
effectuate the policies of the Act.27 I shall recommend that
U ijnlon member Bill Bornemian, a witness for (;Geeral ('ounsel testiled
that, at a union nmeeting in the summer of 1976. Kelles. in discussing the
pending unfair labor practice case. said that "We will asslst each and ecser
member before ansnne gets an} mone¥,."Kelley's statement mil f.iil', he
interpreted as a threat ito dissipate the iUnion's assets befoic coinllsing s ith
the Union be ordered to make whole each of the discrimi-
natees for any loss of earnings they may have suffered by
reason of the discrimination against them, computed on a
quarterly basis, plus interest at 7 percent per annum, as
prescribed in F. W. W'oolworth Company, 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB 651
(1977). In order to assure that discriminatees be fairly com-
pensated for their losses, I shall recommend that the Union
be barred from assessing them for legal fees and expenses
incurred in defending this case and for the payment of
backpay. To facilitate the computation of backpay and as-
sure equal referral treatment. the Union shall maintain and
make available for the Board or its agents, upon request,
out-of-work lists, referral slips, membership records, and
any other documents and records showing job referrals
and the basis for such referrals of employees, members,
and applicants. I further recommend that the Union be
ordered to post appropriate notices and to notify each of
the discriminatees, in writing, that the use of the Union's
referral system will be available to him on an equal and
nondiscriminatory basis with other employees and appli-
cants. As the Union has demonstrated a proclivity to vio-
late the Act, and the unfair labor practices committed by
the Union are of a character striking at the root of employ-
ees' rights safeguarded bv the Act. I shall recommend that
the Union be ordered (as it was ordered in Fruin-Colnon
and A lherici-Fruin-( olnon) to cease and desist from infring-
ing in any manner upon the rights guaranteed in Section 7
of the Act.
'his case calls for strong medicine. It is arguable wheth-
er any remedy permissible under the Act, as interpreted by
the courts, would he adequate. Menz and Kelley appear to
be either unwilling or incapable of conducting the Union's
operations on an equal and nondiscriminatory basis. I
agree with General Counsel that the remedies provided in
J. J. llagert.v Inc.. 139 NLRB 633, 638-639 (1962), as
modified 321 F.2d 130. 138 (C.A. 2, 1963), and in Interna-
tional Association of Briadge, .Structural and Ornamental Iron
l4'orkers, Local 35() (Jon E. Curran), 164 NLRB 644. 651
(1967), are appropriate for this case, and I shall recom-
mend that they be included in the Order.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act. I hereby issue the following recom-
mended:
ORDER 28
Respondent, I aborers International Union of North
America, Local No. 282, AFL-CIO. its officers, agents.
and representatives, shall:
. remedial order in thi, c.lse I he present case insolves substantiat potential
backpay. In Siewe of Kelle's hreut, I recommend to the General Counsel
that the request Board lulthoilri i ia n t seek Injunctive relief under Sec I0tj)
io the the, to enllo il f iiii I roni dissipating its assets pending the final
dlis~,ositin if the case
In the ,event no creptlons are filed as pros.ided bh Sec 11)246 of the
Rules ind Regtulations of the Ntliolal .iabihr Relations Board. the findings.
concrlusiotns. iiand rcomlelinede(ci Orderl herein shall. as prosided in Sec.
1)2 48 of the Rules .ild Rcgulation., be adprted bh the Board and become
its findings, conclulsionls. ad ()tder. and all iobjections thereto shall he
cleemncdl u;led f.r ;l1 pulrposes
644
L.AHORLRS, LO(CAL NO. 282
1. Cease and desist from:
(a) Causing or attempting to cause any emploser to
deny employment to, or in any other manner to discrilmi-
nate against. Don Bollinger, Jim Bollinger. Ernest Brown,
Leonard Daniels. James Harper. Ow'en Innis. XWilliam
Miller. Billy Mansell. Norman Morill. Willard Null, Ricks,
Pobst, Bob Sachse, Joe Sachse. Mike Sachse. William I.eoi
Stricklin, Jack Tomlin, or any other emploxee or applicant
in violation of Section 8(a)(3) of the National l.ahor Rela-
tions Act.
(b) Refusing to refer the above-named indisiduals or
any other employee or applicant for employmenit because
of favoritism, the likes and dislikes of Respondent's avents.
or any other unfair, arbitrary. irrelevant. or discriminatol-
reason.
(c) In any other manner restraining or coercing emplos ees
in the exercise of the rights guaranteed in Section 7 of the
Act.
2. Refrain from assessing an, of the above-named dis-
criminatees for legal fees or expenses incurred in defending
this case or for the payment of backpay.
3. Take the following affirmatise action which is nece-
sary to effecutate the policies of the Act:
(a) Refer each of the above-named discrinminatees for
employment to positions for which the, are quallfied. on
an equal and nondiscriminator bhasis with other eniplo?-
ees and applicants.
(b) Make whole each of the above-named discrinirna-
tees for any loss of earnings thes may haxe suffercd hb
reason of the discrimination aarinst them. in the m;lnntcr
set forth in the section of this l)ecision entitled 'I he Rerm-
eds."
(c) Notify each of the above-named discriminatecs in
writing that Respondent's referral system will be available
to them on an equal and nondiscriminatorb hbasis with
other employees and applicants.
(d) Keep and retain. for a minimum of 3 ecars, perma-
nent records of its hiring and referral operations s hich ill
be adequate to disclose fully the basis on wlaich each refer-
ral is made. 'These records shall indicate the date and tline
of all employer requests for workers a.nd the tspc of qutillfl-
cations requested. 'lhese records shall also indicate lhe
date and time each emplosee requets .a referral and the
jobs for which he is qualified. I'hese records shall also in-
clude such other iecords as the Regional l)irect or desCnlS
necessars to ascertain whether the I nion is aidminiislerinle
a nondiscriminl;tor! hiring and referrall s stci. Resplrn-
dent shall make these records,; and an's ocher recordlls relat-
ing to the hiring and referral practice, asvalible for inspec-
tion, upon request. to the Regional Director or his aiEents
at all reasonahble times for a period of 3 scirs beginninii
with the issuance of this Decision.
(e) Submit four quarterls reports to the Regionil l)iTcc-
tor, due 10 da s after the close of the calendar qualrltcr the
due date of the first report being October It). 1977. con-
cerning the emploxyment of each of the abose-;namied dis-
criminatees. Such reports shall include thC datles anid nuni-
ber of job applications made to the Uiniorn h, these
employees. the dates and number of actua;l .obhs referred to
these emplosees by the Unlon. and the length of such enm-
ployment during such quarter.
(f) Maintain and upon request make available to the
Board or its agents. for examination and copying. out-of-
work lists. referral slips. membership records, and any
other documents and records showing job referrals and the
basis for such referrals of employees, members, and appli-
calnts. which are necessars to compute and analyze the
amoulnt of backpas, due the above-named discriminatees.
(g) Post at its business offices, hiring hall, and meetin-
places c'opies of the attiached notice marked "Appendix." 2
(Copies of said notice, on forms provided by the Regional
[)irector for Region 14, after being duly signed by Respon-
dent's iauthorized representatives. shall be posted by Re-
spondent immllediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in
conspicuous places. including all places where notices to
members are customarily posted. Reasonable steps shall be
taken bs Respondent to insure that said notices are not
altered. defaced, or covered by any other material.
l(h) Notify. the Regional Director for Region 14. in writ-
inr. withirn '0 dass fro m the date of this Order, what steps
Respondent has taken to comply herewith.
11 Is it RItiR RRtI(l 1,1)NDIrl) that the allegations of the
complaint with respect to Don Hendrix. Davie Newcomer,
XWilliami Penrose. Jr.. and Shirle, Hawkins are hereby dis-
nilsscd.
i '1 ] thn IC c.! t ha lhi (h dcl r ,I cnf, red hs . i -iudgcnicni of a t nired
St "r, ( ,' rt .[ N1ppcaN. [i e v rd r s ii thc nlicc re.diln ,I Poted b'( Order
,f lilt \,lla I .III hr Rcitl.ll Bi ri, d ,hll read 'Tocld I'ursl .nl to a
It .J mcn -1 fIl, I n td Siatc, ( ,ur of A ppca l, m runfrc g n ()rder of tih
%d(N i tI I .,}~,,t R, cl iilx u}; l
\APPEN)DIX
No I I( I or,, V t MB RS
Po)si Ii) Bs OR)rI (l Ill
N s\t(!NI I [ KXI)R Ril I ()INS BOARD
An Arenci of the U nited States Government
iftcr a hlicailn l in which all sides had an opportunity to
prcsent C¢idcillce and state their positions, the National l.a-
bor Rel.rlions Boaird has found that we hav-e siolated the
National I abor Relatiors Act and has ordered us to post
this notice and to carrx out its provisions.
W[ i ,l I i,, ol cause or attempt to cause any emplos-
cr t denl cinrnplonmenlt t(o. or in an! other manner to
discrimilnate againlst. I[)on Bollinger. Jim Bollinger. Er-
nest Bro\\n. I eonaird Daniels, James Harper, Owen
Inniis. X illianm Mliller. Pill, Mansell. Norman Morill.
W'illadn Null. Rickl Pobst. Bob Sachse, Joe Sachse.
Mike Sachse. William l.eon Stricklin. Jack lTomlin, or
an itS other emploxees or applicant in violation of Sec-
tion 8(.(3) t of the National Labor Relations Act.
W'l ix l ofr refuse to refer the above-named indi-
idlu;Ils otr ain other emplosee or applicant for em-
plo)niient hect.use of fasoritism. the likes and dislike
of our atents. .r an, other unfair, arbitrars, irrelevant.
or cdisci i nll iators reason.
'W1 i 1 I tl )ol in atns other manner restrain or coerce
cmltploees ill the exercise of the rights guaranteed in
645
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 7 of the Act, including the right to run for
union office, to challenge or question the validity of
any union election of officers, or to challenge or ques-
tion the manner in which any union officer conducts
the Union's operations.
WE WILL refrain from assessing any of the above-
named discriminatees for legal fees or expenses incur-
red in defending the unfair labor practice case or for
the payment of backpay.
WE WILL refer each of the above-named discrimina-
tees for employment to positions for which they are
qualified, on an equal and nondiscriminatory basis
with other employees or applicants.
WE WILL make whole each of the above-named dis-
criminatees for any loss of earnings they may have
suffered by reason of the discrimination against them.
WE WILL keep and retain for a minimum of 3 years.
permanent records of our hiring and referral opera-
tions which will be adequate to disclose fully the basis
on which each referral is made. These records shall
indicate the date and time of all employer request for
workers and the type of qualifications requested.
These records shall also indicate the date and time
each employee requests a referral and the jobs for
which he is qualified. These records shall also include
such other records as the National Labor Relations
Board's Regional Director deems necessary to ascer-
tain whether we are administering a nondiscrimina-
tory hiring and referral system. We shall make these
records, and any other records relating to the hiring
and referral practice, available for inspection, upon
request, to the Regional Director or his agents, at all
reasonable times for a period of 3 years.
WE WILL submit four quarterly reports to the Re-
gional Director concerning the employment of the
above-named discriminatees.
LABORERS INTERNATIONAL UNION OF NORIKi AMER-
ICA, LOCAL 282, AFL-CIO
646