Laborers' Local Union No. 525

National Labor Relations Board - Board Decisions

Apr 16, 1976

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

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