Painters Local 1140 (Harmon Contract)

National Labor Relations Board - Board Decisions

Jan 30, 1989

292 N.L.R.B. 723 (N.L.R.B. 1989)

PAINTERS LOCAL 1140 (HARMON CONTRACT) 723
Painters Local Union No 1140 of the International
Brotherhood of Painters and Allied Trades,
AFL-CIO (Harmon Contract Glazing , Inc) and
Bennie Morrow Case 19-CB-5941
January 30, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On November 24, 1987, Administrative Law
Judge William J Pannier III issued the attached
decision The Respondent filed exceptions and a
supporting brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge' s rulings , findings,' and
conclusions only to the extent consistent with this
decision and to adopt his recommended Order as
modified and set out in full below
The complaint alleges that the Respondent un-
lawfully disciplined two members The judge found
that the Respondent violated Section 8(b)(1)(A)
and (2) by imposing a referral bar and by filing in
traunion charges We affirm the judge's finding as
to the former allegation and dismiss the complaint
as to the latter
The Respondent operates an exclusive hiring hall
requiring it to furnish written referrals to employ
ees whose names are entered on its "open and non-
discriminatory employment list " Referral is made
according to the order in which employees have
signed the list, with exceptions not relevant here
The Respondent's bylaw 78 states
No member shall report to work at any shop
without first securing a work referral slip from
the Local Union office Failure to do so shall
be cause for charges being filed against the
member and/or discharge
Union members Bennie Morrow and Gerald
Holterhoff, on their own initiative , obtained direct
employment with Harmon Contract Glazing, Inc
and then sought referral slips from the Respondent
prior to reporting for work On September 2, 1986,
Rudy Trosclair, the Respondent' s business manag-
er, refused to issue the requested slips However,
Morrow and Holterhoff reported for work with
Harmon on September 3, despite not having been
dispatched by the Respondent Harvey Linensch-
i The judge denied the General Counsel s request for a visitatonal pro
vision in the Order We agree with the judge noting that his decision
issued prior to Cherokee Marine Terminal 287 NLRB 1080 (1988)
midt, a union organizer who was present at the
Harmon worksite on September 3, asked them to
leave because they had not been dispatched from
the hiring hall Trosclair went to the Harmon
worksite later that morning and demanded that the
two employees leave because they had not been re
ferred pursuant to the hiring hall procedures Up to
this point, the legality of the Respondent's actions,
within the meaning of Section 8(b)(1)(A) and (2) of
the Act, is not in issue 2
We now address the complaint allegations that,
subsequent to the September 3, 1986 confrontations
between Union Officials Trosclair and Linensch
midt and union members Morrow and Holterhoff
at the Harmon worksite, the Respondent violated
Section 8(b)(1)(A) and (2) by Linenschmidt's filing
union charges against each of them and Trosclair's
barring them from any future referrals to Harmon
Trosclair informed Morrow and Holterhoff by
letters dated September 4, 1986, but sent about a
week later, that
Due to your going to work for Harmon
charges have been preferred against you and
you have been discharged from this job Your
name will remain on the out of work list, and
you will be available for dispatch to any job
other than the (Harmon) job, as per Local
# 1140 By-Laws #78
With respect to the referral bar imposed by
Trosclair, we agree with the judge that it was mo-
tivated by an unlawful discriminatory animus
toward both Morrow and Holterhoff As the judge
found, Morrow and Holterhoff each had earlier an
tagonized Trosclair by opposing him on various in-
ternal union matters , thereby directly and publicly
criticizing his leadership of the Local 3 Further,
the record fully supports the judge's finding that
the Union has not shown that either Trosclair, on
his own, or any union trial board had previously
barred a member from referral to a particular em-
2 As stated by the judge the refusal to issue referral slips to Morrow
and Holterhoff and the demand that they cease working for Harmon
were not the subject of any complaint allegations The General Counsel
in her brief to the judge argued that the Respondent thereby violated
Sec 8(b)(1)(A) and (2) but she did not move to amend the complaint
Because the judge considered it necessary to evaluate the circumstances
surrounding these events in order to decide the issues that were before
him he concluded that even if the complaint had so alleged the evi
dence would not have supported those allegations In the absence of any
exceptions to this finding we adopt it pro forma
3 As a result of internal union charges filed against Trosclair by
Morrow in 1984 Trosclair had been fined and temporarily suspended
from office Morrow had also filed charges against Trosclair with the
Human Rights Commission and the Department of Labor and had ap
peared as a witness against him in a Department of Labor investigation
Holterhoff had successfully led the opposition to a dues increase pro
posed by Trosclair in 1985 In doing so Holterhoff was perceived by
Trosclair as being led The judge found that the evidence suggests that
Trosclair considered Morrow to have been the leader in question
292 NLRB No 74
724 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployer for violating bylaw 78 In finding disparate
treatment of Morrow and Holterhoff in Trosclair's
creation of this new penalty , the judge stressed that
bylaw 78 not only makes no explicit provision for
this particular penalty but provides for no sanction,
other than discharge , not imposed by a union trial
board Although conceding this point , Trosclair
claimed that , nevertheless , as business manager he
had an inherent power to impose a referral bar
However , as the judge found, Trosclair did not ex-
plain specifically how he reached this understand-
ing Further , the Respondent provided no evidence
that others recognized or accepted that the buss
ness manager possessed such unilateral authority
We find no merit in the Respondent 's argument
that a lack of discriminatory intent on and after
September 4, 1986 , is shown by Trosclair 's having
previously dispatched Morrow and Holterhoff to
various jobs , in accord with hiring hall rules, after
the earlier events giving rise to Trosclair 's personal
animus We agree with the judge that Trosclair
seized the opportunity provided by the violation of
bylaw 78 to retaliate against Morrow and Holter-
hoff because of their protected union activities by
barring them from any future referrals to Harmon,
thereby preempting the trial board's authority over
sanctions beyond discharge
In our view , the judge 's analysis of the Respond-
ent's motive in barring Morrow and Holterhoff
from any future referrals to Harmon is consistent
with Wright Line , 251 NLRB 1083 (1980), and
Limestone Apparel Corp , 255 NLRB 722 (1981)
See Mine Workers Local (Reitz Coal), 282 NLRB
107 (1986) Accordingly , we affirm the judge's
finding of an 8(b)(1)(A) and (2) violation with re-
spect to the referral bar
Moreover , even if the Respondent had demon-
strated that it lacked a specific discriminatory
motive , we would still find that the Respondent
could not lawfully justify the referral bar The
Board has held that a union operating an exclusive
hiring hall must represent all individuals who seek
to use the hall fairly and impartially The labor or
ganization conducting such an operation has a duty
to conform with and apply lawful contractual
standards in administering the referral system As
the Board stated in Operating Engineers Local 406,
262 NLRB 50, 51 (1982 ), enfd 701 F 2d 504 (5th
Cir 1983)
[A]ny departure from established hiring hall
procedures which results in a denial of em-
ployment to an applicant falls within that class
of discrimination which inherently encourages
union membership , breaches the duty of fair
representation owed to all hiring hall users,
and violates Section 8 (b)(1)(A) and (2), unless
the union demonstrates that its interference
with employment was pursuant to a valid
union-security clause or was necessary to the
effective performance of its representative
function
The Respondent has made no such showing of a
legitimate justification Because Morrow and Hol
terhoff retained their respective places on the em
ployment list following their discharge from
Harmon on September 3, 1986 , the Union 's duty of
fair representation required it to treat them equally
with all other applicants seeking referral The Re
spondent essentially argues with respect to Holter-
hoff, however , that it faced a unique" situation in
applying bylaw 78 Holterhoff's high position on
the employment list would have resulted in his im
mediate return to Harmon pursuant to its Septem-
ber 4 , 1986 request for four employees The Re-
spondent contends that , under those circumstances,
Trosclair had a responsibility to ensure that Holter-
hoffs bylaw 78 discharge would be effective "
According to the Respondent , Trosclair thus exer-
cised his inherent discretion as a union official to
bypass the trial board and, on his own, define Hol-
terhoff's "discharge" from Harmon on September
3, 1986 , as precluding his ever being rehired by that
employer on that particular project
This uniqueness" argument fails in the face of
the Respondent 's failure to explain why Morrow,
whose list position was low enough to ensure that
he would not have been eligible for dispatch to
Harmon at least through September , should be sub
jected to the same restriction placed on Holterhoff
The Respondent is incorrect in claiming that, be
cause of Morrow s list position, the referral bar
would not have affected him Trosclair could not
have predicted that Morrow would not have been
eligible to return to the Harmon job at some time
after September
The Respondent , in these circumstances , has thus
deprived Morrow and Holterhoff of employment
opportunities resulting in referral advantages to
other applicants on the employment list, possibly
including some who had also, at some point, been
found in violation of bylaw 78 without suffering
any burdens on their rights to future referrals In
doing so, the Respondent has not adequately
shown why it did not adhere to the contractual
rule on in turn referrals with respect to Morrow
and Holterhoff who, despite their having violated
bylaw 78, were properly on the employment list
Accordingly, we conclude that , even assuming the
absence of invidious or discriminatory intent, the
Respondent violated Section 8(b)(1)(A) and (2) by
PAINTERS LOCAL 1140 (HARMON CONTRACT)
arbitrarily departing from established hiring hall
procedures 4
We reach a different result, however, concerning
the judge's finding that the Respondent's filing of
charges against Morrow and Holterhoff itself con-
stituted a violation of Section 8(b)(1)(A) and (2)
The judge conceded that the record reveals that
it was "not unprecedented" for union members and
officials to file charges against those members who
had secured direct employment in violation of
bylaw 78 Here, with respect to Linenschmidt's
motivation, the judge emphasized that this was the
first time that he had filed charges of any sort
against any member Linenschmidt did not testify
However, Trosclair stated that he had not solicited
Linenschmidt to file the charges but that he had
assisted him in putting the charges together' be-
cause "I don't think he'd ever done them before "
The judge stressed the Respondent's failure to
call Linenschmidt as a witness in concluding that it
had failed to meet its burden of demonstrating that
Linenschmidt was not unlawfully motivated in
filing the charges or that Trosclair's participation
did not go beyond "ministerial assistance " We find
merit in the Respondent's exception to the judge's
burden of proof analysis In making a prima facie
case under Wright Line, it is the General Counsel
who has the initial burden of showing a discrimina-
tory motive Here, we find that the General Coun-
sel has produced no evidence at all that Linensch-
midt, in filing charges explicitly permitted by
bylaw 78, was acting either on his own unlawful
motive or pursuant to the direction of Trosclair,
whose animus against Morrow and Holterhoff has
been made clear Consequently, there is no prima
facie case for the Respondent to rebut According
ly, we shall dismiss the complaint allegation as to
the filing of intraunion charges
ORDER
The National Labor Relations Board orders that
the Respondent, Painters Local Union No 1140 of
the International Brotherhood of Painters and
Allied Trades, AFL-CIO, its officers, agents, and
representatives, shall
1 Cease and desist from
(a) Barring employees from referral or dispatch
and refusing to refer or dispatch them from its ex
clusive hiring hall because they exercise their rights
under Section 7 of the Act
(b) Operating its exclusive hiring hall and refer
ral system in a discriminatory or arbitrary manner
4 I t, finding that the Respondent violated Sec 8 (b)(1)(A) and (2) with
respect to the referral bar Member Cracraft relies on the analysis based
on the Board s decision in Operating Engineers Local 406 supra
725
(c) Causing or attempting to cause employers to
discriminate against Bennie Morrow, Gerald Hol-
terhoff, or any other employees, members, job ap-
plicants, or registrants by discriminatorily refusing
to refer or dispatch them, and by discriminatorily
barring them from referral or dispatch to Harmon
Contract Glazing, Inc, or any other employer pur-
suant to operation of its exclusive hiring hall and
referral system
(d) In any like or related manner restraining or
coercing employees, members, job applicants, or
registrants in the exercise of the rights guaranteed
them by Section 7 of the Act
2 Take the following affirmative action neces
sary to effectuate the policies of the Act
(a) Make Bennie Morrow and Gerald Holterhoff
whole for any loss of earnings and benefits that
they may have suffered because they were unlaw
fully denied and barred from referral and dispatch
to employment with Harmon Contract Glazing,
Inc, on and after September 4, 1986, in the manner
set forth in the remedy section of the judge's deci-
sion
(b) Preserve and, on request, make available to
the Board or its agents, for examination and copy-
ing, all hiring records, dispatcher lists , referral slips
and other documents necessary to analyze and
compute the amount of backpay due Bennie
Morrow and Gerald Holterhoff
(c) Post at its business offices, hiring hall, and
meeting places in Anchorage, Alaska, copies of the
attached notice marked "Appendix 5 Copies of
the notice, on forms provided by the Regional Di-
rector for Region 19, after being signed by the Re-
spondent's authorized representative, shall be
posted by the Respondent immediately upon re
ceipt and maintained for 60 consecutive days in
conspicuous places, including all places where no-
tices to members and employees are customarily
posted Reasonable steps shall be taken by it to
ensure that the notices are not altered, defaced, or
covered by any other material
(d) Additional copies of the attached notice
marked "Appendix" shall be signed by an author-
ized representative of Painters Local Union No
1140 of the International Brotherhood of Painters
and Allied Trades, AFL-CIO, and forthwith re-
turned to the Regional Director for Region 19 for
posting by Harmon Contract Glazing, Inc, it being
willing , at its places of business in Anchorage,
5 If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
al 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
726 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Alaska, where notices to its employees are custom-
arily posted.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to refer or dispatch you or
bar you from referral or dispatch from our hiring
hall because you exercise your rights under the Na-
tional Labor Relations Act.
WE WILL NOT cause or attempt to cause employ-
ers to discriminate against Bennie Morrow, Gerald
Holterhoff, or any other employees, members, job
applicants, or registrants by discriminatorily refus-
ing to refer or dispatch them and by barring them
from referral or dispatch to Harmon Contract
Glazing, Inc. or to any other employer pursuant to
operation of our exclusive hiring hall and referral
system.
WE WILL NOT operate our exclusive hiring hall
and referral system in a discriminatory or arbitrary
manner.
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL make Bennie Morrow and Gerald Hol-
terhoff whole for any loss of earnings they may
have suffered because we unlawfully denied and
barred them from referral and dispatch to employ-
ment with Harmon Contract Glazing, Inc. on and
after September 4, 1986, with interest to be paid on
the amounts owing.
PAINTERS LOCAL UNION No. 1140 OF
THE INTERNATIONAL BROTHERHOOD
OF PAINTERS AND ALLIED TRADES,
AFL-CIO
Patrick F. Dunham, Esq., for the General Counsel.
William K Jermain (Jermain, Dunnagan & Owens), of
Anchorage, Alaska, appearing for the Respondent.
Bennie B. Morrow, of Anchorage, Alaska, appearing pro
se.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III , Administrative Law Judge. I
heard this case in Anchorage, Alaska, on July 16, 1987.
On April 16, 1987, the Regional Director for Region 19
of the National Labor Relations Board, (the Board)
issued a complaint and notice of hearing, based on an
unfair labor practice charge filed on September 4, 1986,1
amended on September 9, alleging violations of Section
8(b)(1)(A) and (2) of the National Labor Relations Act,
(the Act). All parties have been afforded full opportunity
to appear, to introduce evidence, to examine and cross-
examine witnesses, and to file briefs. Based on the entire
record, upon the briefs filed on behalf of the parties, and
on my observation of the demeanor of the witnesses, I
make the following
FINDINGS OF FACT.
1. JURISDICTION
At all times material , Harmon Contract Glazing, Inc.,
(the Employer), has been a State of Washington corpora-
tion with office and place of business in Seattle, Wash-
ington, and has operated in Anchorage in the business of
window glazing and related work. The complaint alleges
a multiplicity of facts supporting various theories for as-
serting jurisdiction over the Employer. Each of them is
admitted in the answer, as is the conclusionary allegation
that the Employer is engaged in commerce. For exam-
ple, the complaint alleges that during the 12-month
period preceding issuance of the complaint, a representa-
tive period, the Employer derived gross revenue in
excess of $500,000; sold and shipped goods or provided
services in excess of $50,000 directly to customers locat-
ed outside of Washington or to customers within that
State, each of which in turn engaged in interstate com-
merce by other than indirect means in amounts totaling
more than $50,000; and purchased and caused to be
transferred to its facilities in Alaska goods and materials
valued in excess of $50,000, which originated outside
that State. Therefore, I conclude that the Employer is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At all times material , Painters Local Union No. 1140
of the International Brotherhood of Painters and Allied
Trades, AFL-CIO (Respondent), has been a labor orga-
nization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
As described in detail post, glaziers Bennie Morrow
and Gerald Holterhoff obtained employment with
Harmon Contract Glazing, Inc. and began work at its
Resolution Plaza project on September 3. On the preced-
' Unless stated otherwise, all dates occurred in 1986.
PAINTERS LOCAL 1140 (HARMON CONTRACT) 727
ing day , they had been told that Respondent would not
refer them to that project During the morning of Sep
tember 3 , Respondents officials ascertained that Morrow
and Holterhoff were working for the Employer and de
manded that they cease work The two glaziers worked
for the remainder of that day but in light of Respond
ent s demand that they stop , did not work thereafter for
the Employer The complaint does not allege that Re
spondent acted unlawfully in connection with any of
these events Instead , it focuses on two subsequent inci
dents
First , it alleges that Respondent violated the Act
when , by letter [it] notified Morrow and Holterhoff that
they would be ineligible for referral to Harmon, and
since that date failed and refused to refer them to em
ployment with Harmon Second , it alleges that Re
spondent violated the Act by invok[ing] bylaw number
78 and fil[ing] internal union charges against Morrow
and Holterhoff for their having worked for Harmon
Notwithstanding these narrow allegations , in her brief
the General Counsel argues that Respondent had acted
unlawfully in refusing to refer the two glaziers on Sep
tember 2 and in demanding on September 3 that they
cease working for the Employer , although no motion has
been made to amend the complaint to include allegations
to that effect
For the reasons set forth in section III C , infra, I con
elude that Respondent did violate the Act as alleged in
the complaint A preponderance of the evidence shows
that the discipline meted out to Morrow and Holterhoff
had been motivated by an intent to retaliate because of
participation in protected activity But I do not agree
that Respondent acted on an unlawful motivation when
it had initially refused to refer the two glaziers on Sep
tember 2 and then demanded on the following day that
they cease working for the Employer A preponderance
of the evidence shows that Respondent lawfully had
changed its referral practice , that the two glaziers had
been aware of the change before they actually began
work with the Employer , and that Respondent demand
ed that they cease working because they had circum
vented the referral procedure when they accepted em
ployment directly from the Employer Consequently
even had these events been the subject of allegations in
the complaint I conclude that a preponderance of the
evidence would not have supported those allegations
B Evidence
In August the Employer secured a subcontract to per
form glazing work at the Resolution Plaza project Be
cause it had never performed work in Alaska the Em
ployer was not a party to a collective bargaining con
tract with Respondent However, it was party to a con
tract with Respondents sister local in Minneapolis By
virtue of the terms of that contract the Employer was
obliged to observe the contracts of other Painters locals
in whose jurisdiction it worked However the existence
of the Minnesota contractual relationship was not con
firmed by Respondent by the time the Employer com
menced work on September 3
Article 5 04 of Respondents standard contract con
tams an exclusive hiring hall provision It obliges Re
spondent to furnish written referrals to employees whose
names are entered on its open and non discriminatory
employment list ' Referral is made according to the
order in which employees have signed the list, save for
two exceptions First an employer may request referral
of specifically named workmen who have been recently
laid off or terminated by [that employer] Second, a re
ferral preference is accorded to Workmen who have
been employed by Employers within the unit covered by
this Agreement during the previous six (6) months
Historically there has been a shortage of glaziers in
Alaska As a result, the practice arose of disregarding the
contractual formalities of hiring hall referral Instead,
glaziers were permitted to hustle their own jobs Once
a glazing job was located the employer would call the
hall and name request the glazier who had hustled that
job In turn, at the first convenient opportunity that gla
zier would go to the hiring hall and secure a referral slip
It was not uncommon for a referral slip to be actually
obtained at a point in time after the glazier already had
started working on the job In short, a history of exces
sive employment opportunities generated a practice of
circumventing the contractual hiring hall procedure
Bennie Morrow had been a member of Respondent for
a number of years and had held several official positions
with it However animosity had developed between him
and Respondents then business manager, Rudy Joseph
Trosclair Because of his belief that Trosclair was engag
mg in improprieties, Morrow had filed internal union
charges that ultimately led to Trosclair being fined and
temporarily suspended from office Morrow also had
filed charges against Trosclair with the Human Rights
Commission and, in addition, had been subpoenaed to
appear as a witness against Trosclair in a Department of
Labor investigation When testifying, neither Morrow
nor Trosclair minced any words about his dislike for the
other
In mid August it became common knowledge that the
Employer had obtained the glazing subcontract for the
Resolution Plaza project in downtown Anchorage With
out stating a reason Morrow obtained the name and tele
phone number of a Seattle official of the Employer from
Harvey Linenschmidt an organizer for Respondent 2
Linenschmidt provided the information without voicing
any reservation concerning direct contact with the Em
ployer by Morrow Morrow did place the call and in
quired about employment at Resolution Plaza Ultimately
he was told that his name and telephone number would
be given to Efrain Pehlivanian who would be serving as
glazing foreman and who would be arriving in Anchor
age in about a week
Holterhoff also had learned in August that the Em
ployer had received the glazing subcontract In 1985
Holterhoff had become involved in opposing a dues in
crease sought by Trosclair Not only did the membership
reject that increase but it voted in favor of Holterhoff's
2 The parties stipulated that Lmenschmidt was an agent of Respondent
He did not appear as a witness in this proceeding Save for an unsuccess
ful effort to show that he had left Respondent s jurisdiction for Cahfor
ma Respondent advanced no reason for failing to produce Lmenschmidt
as a witness
728 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dues reduction motion . At that time , Holterhoff told
Trosclair that he was dissatisfied with the administration
of Respondent . Trosclair claimed that he harbored no
animosity toward Holterhoff as a result of this incident.
According to Trosclair, the dues reduction election had
been null and void. However, Trosclair did not deny
that Respondent's leadership had been criticized by Hol-
terhoff. Furthermore, he testified that he believed that
Holterhoff "was being led."
At all times material , HolterhoiFs name had been suffi-
ciently high on the out-of-work list to warrant his dis-
patch to Resolution Plaza . Mindful of that fact, on
August 25 he asked Linenschmidt if the Employer's "job
was going to be name -requested or off the top of the
list?" Linenschmidt replied that the list would not be fol-
lowed. Holterhoff protested, pointing out that for the
SOHIO job Respondent "went off the top of the list."
Nevertheless , Linenschmidt said that the list would not
be followed.
Two days later, on August 27, Holterhoff repeated
Linenschmidt 's remarks to Morrow during a conversa-
tion in which Morrow asked if Holterhoff would like to
go to work at Resolution Plaza. At some point that same
day, Morrow testified, he had participated in a conversa-
tion with Pehlivanian and Don Jones, the Employer's su-
perintendent , on the second story at Resolution Plaza.
This was an open area , visible from the street below. As
this conversation progressed, Morrow testified, "I saw
Rudy Trosclair get out of his 'vehicle and walk toward
the building. As he walked toward the building he
looked up and saw me and went back-his head went
back down and he walked on in." Trosclair acknowl-
edged having gone to Resolution Plaza that day. He had
taken a copy of Respondent 's collective-bargaining con-
tract to see if the Employer would sign it . He admitted
having seen Morrow's truck "at the job," but denied
having seen Morrow while he had been there . Signifi-
cantly, Pehlivanian, though he testified, made no mention
of having participated in a conversation such as the one
described by Morrow.
Holterhoff testified that on August 28, he again went
to Respondent's hall to inquire if there had been a call to
work by the Employer. On that occasion Linenschmidt
told Holterhoff, testified the latter, "that he was going to
go off the top of the list [in dispatching glaziers to the
Employer]."
At approximately 2 p.m. on September 2, Pehlivanian
told Morrow to report for work, along with Holterhoff,
the following morning. Morrow inquired specifically if
Pehlivanian had called Respondent's hall; Pehlivanian
said that he had not done so. Later in the afternoon or
early that evening Morrow and Holterhoff went to Re-
spondent 's hall to obtain signed referral slips . However,
Trosclair refused to sign slips for the two glaziers. Asked
why he had not done so, Trosclair testified:
Three different reasons. I was not sure of a working
agreement-of Harmon Glass being signatory with
our Local, I was waiting on that call from Minneso-
ta. I had no call from Harmon Glass for anybody,
any individuals whatsoever. And I informed both of
them that they had known prior to this that the
calls for Harmon would be handled on an open-call
basis off the top of the list. So there were three dis-
tinct reasons.3
Both Morrow and Holterhoff denied that Trosclair had
said anything about the absence of a contract between
Respondent and the Employer. Morrow testified that
Trosclair had said only "that he had no name request for
us from [the Employer]." Holterhoff agreed that Tros-
clair had made that statement. But he testified that Tros-
clair had also, "said he wouldn't dispatch anybody be-
cause he was going to go off the top of the list."
Despite their failure to obtain referrals from Respond-
ent, Morrow and Holterhoff reported for work on Sep-
tember 3. According to Morrow, "When I arrived at
7:00 o'clock I told Efram that since Rudy had said he
had no name request for us that Efram would have to
call the union hall , place the name request, which he
done at 8:00 o'clock that morning." But neither Holter-
hoff nor Pehlivanian corroborated this testimony. In-
stead , Holterhoff conceded the accuracy of what was re-
cited in his pretrial affidavit: that Morrow had told the
Employer's officials "that the problem was that Mr.
Trosclair was going to go off the hiring hall." Pehlivan-
ian gave no account of what had been said when
Morrow and Holterhoff had arrived for work on Sep-
tember 3. More important, he did not claim to have
made any telephone call to Respondent during the morn-
ing of that day. In fact, he ultimately conceded that he
had not called Respondent's hall for glaziers until the
following day, September 4.
Soon after Morrow and Holterhoff commenced work-
ing on September 3 Linenschmidt arrived at the site. He
spoke with the two glaziers and he spoke separately with
Pehlivanian. Regarding the former conversation, both
Morrow and Holterhoff testified that Linenschmidt had
said that because of Holterhoff's high standing on the
out-of-work list, he could continue working for the Em-
ployer but did need to come to the hall following work
that day to obtain a dispatch slip. Both of them also
agreed that Linenschmidt had objected to Morrow con-
tinuing to work due to the latter's undisputed low stand-
ing on the out-of-work list. Holterhoff did not describe
what Linenschmidt had actually said in that regard.
Morrow first testified that, "Harvey told me that I
couldn't be on that job, he said you cannot be special-
requested by any new contractor." During cross -exami-
nation, he denied that Linenschmidt had said that calls
for the Employer would "have to come off the top of
the out-of-work list." But upon being shown his pretrial
affidavit, Morrow conceded that this statement also had
been made by Linenschmidt that morning.
As stated, Morrow and Holterhoff each testified that
Linenschmidt had said that Holterhoff could continue
working on September 3, but would have to obtain a re-
3 Due to the format of the questioning , initially Trosclair did not testi-
fy expressly that he had actually spoken those reasons to Morrow and
Holterhoff during their conversation on September 2. But during the
course of his account of what occurred during the following day, Tros-
clair testified that he had spoken those reasons to Morrow and Holterhoff
on September 2: "And the very same reasons I gave them the previous
night."
PAINTERS LOCAL 1140 (HARMON CONTRACT) 729
ferral slip after work that day But that testimony tended
to be refuted by Pehlivanian s testimony concerning
what Linenschmidt had said during their conversation
that morning Thus, according to Pehlivanian
[t]hey objected to us for them working down there
And I had told them that we re going to be needing
four glaziers If I kept Bert and Jerry since we al
ready hired them to work, and 111 call the hall up
and get two more glaziers But they were objecting
to Bert Morrow and Jerry s working down there
they said, well we 11 provide the people whenever
you need them, and I couldn t hire Bert or Jerry
since we were new in town
Trosclair also came to the site during the morning of
September 3 It is not disputed that he told Morrow and
Holterhoff to leave the site The two glaziers testified
that, in doing so, Trosclair had said only that they had
no dispatches Trosclair claimed that he had told them to
leave because of, the very same reasons I gave them the
previous night That we had no calls we had no con
tract Pehlivanian testified that during their separate
conversation, Trosclair had told him only that the two
glaziers should leave because they had not been dis
patched Trosclair did not refute this testimony by Pehli
vanian Instead, Trosclair testified only that he had told
Pehlivanian of the problems when he insisted that
Morrow and Holterhoff leave the site
At Linenschmidt s suggestion , Morrow and Holterhoff
returned to the site on September 4 and asked Pehlivan
ian to specifically request of Trosclair that they be re
ferred Pehlivanian testified that when he called the hall
that morning Linenschmidt had said that he would not
refer Morrow and Holterhoff but would send two other
glaziers During a second call that day, Pehlivanian testi
fled he had spoken to a secretary and to Trosclair He
requested that Morrow and Holterhoff be dispatched im
mediately and that two other glaziers be dispatched later
Pehlivanian did not describe the response to that request
However after examining his affidavit he acknowledged
that a conversation had occurred 1 or 2 days later in
which
Trosclair said he had to go by the list that he had
50 some people out of work on the list and that he
had to go by the list I wanted Morrow and Holter
hoff but Trosclair said he wouldn t do it he had
other members he had to think of
Respondent sent two letters to Morrow and two iden
tically worded letters to Holterhoff All bear the date
September 4 although Respondent acknowledges that
they were actually sent almost a week later 4 Two of the
4 Trosclair testified that it was common due to their workloads for
Respondents secretaries to prepare and mail correspondence after the
dates recited on them The General Counsel points to the propinquity be
tween the date of receipt by Respondent of Morrow s charge and the
actual mailing of these four letters questioning whether the latter may
actually have been generated by the former However the complaint
does not allege that these letters were prepared and transmitted in retalia
tion for the filing of the charge Further at no point including in the
brief filed on her behalf does the General Counsel move to amend the
letters one to Morrow and the other to Holterhoff, were
signed by Trosclair Each one states, to the extent perti
nent here
Due to your going to work for Harmon Glass on
the Resolution Towers sic job, charges have been
preferred against you and you have been discharged
from this job Your name will remain on the out of
work list and you will be available for dispatch to
any job other than the Resolution Tower job as per
Local # 1140 By Laws #78
Bylaw 78 prohibits reporting to work without a refer
ral slip But it says nothing about barring an employee s
ability to be later referred to the same shop or project on
which that employee had been working without a refer
ral slip
No member shall report to work at any shop with
out first securing a work referral slip from the
Local Union office Failure to do so shall be cause
for charges being filed against the member and/or
discharge
Trosclair conceded that bylaw 78 does not authorize bar
ring an employee from dispatch to a location where that
employee once had accepted work without first securing
a referral slip Instead, he claimed that authority to
impose that penalty is in effect an inherent power of the
business manager, available as a means for preventing
employees from circumventing hiring hall procedure by
seeking employment directly But Trosclair did not ex
plain specifically how he reached the conclusion that the
business manager possessed that authority Respondent
did not produce any evidence even tending to show that
it was recognized and accepted nor that Respondent s
business manager possessed such summary authority
Indeed in the final analysis there was no showing that
a business manager had ever imposed such a penalty on
any other occasion Trosclair claimed that prior instances
had occurred However he was not able to identify even
a single prior incident that had resulted in application of
that penalty Nor was he able to recite the name of a
single employee who had suffered such a penalty with
out regard to the specific circumstances under which it
had been levied
A series of records were produced showing situations
where employees had been charged with violating inter
alia bylaw 78 In not one instance , where the trial board
concluded that bylaw 78 had been violated did it then
bar that employee from future employment at the loca
tion where that employee had been hired directly Nor
do the records show anything that would afford a basis
for concluding that such a penalty had been applied by
another official or board of Respondent Finally there is
undisputed testimony, from painter and drywall finisher
Chris Christensen that violations of bylaw 78 absent
more serious accompanying by law violations have been
complaint to allege such a violation Consequently in analyzing the facts
of this case I give no consideration to the fact that the four letters were
actually prepared after Respondent had received the charge
730 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
historically considered "relatively insignificant " and "not
that big a deal."
The second pair of letters notified Morrow and Hol-
terhoff that they had been charged with violating bylaws
57 and 78 for having commenced work for the Employer
after having been denied referrals and after having been
specifically,
told by Business Manager Trosclair that the Union
had no signed agreement with Harmon Glass, we
were not aware of their being signatory in any
other location, and we had not received a request
for workmen from Harmon Glass as per Article 5
5.04(B) (C) of our working agreement, therefore
[they] could not be dispatched at that time.
Ultimately, separate hearings were conducted on the
charge against each of these two glaziers . In Morrow's
case, the trial board concluded that the charges were
warranted. However, in response to Morrow's appeal,
the International remanded the case for rehearing. Re-
spondent decided not to retry the case. Holterhoff's hear-
ing opened, but no decision was rendered by the trial
board. Ultimately, the charge against him was dropped.
He was notified by letter that "all subsequent corre-
spondence relating to Harmon Glass is now null and
void." As a consequence, the only penalty actually im-
posed upon Morrow and Holterhoff was the bar, im-
posed by Trosclair, against their ever being dispatched to
Resolution Plaza.
Before proceeding to analysis several points warrant
further explanation. First, the internal union charges
were prepared by Linenschmidt. Trosclair testified that
he had helped Linenschmidt do so. But Trosclair denied
having soliciting preparation of the charges and denied
that he had been the one who had originated the idea of
preparing them. As pointed out in footnote 2, supra, Lin-
enschmidt did not appear as a witness. Accordingly, the
record is devoid of corroboration for these assertions by
Trosclair and, further, lacks any explanation concerning
Linenschmidt's motive for having decided to prefer these
charges against Morrow and Holterhoff. This is a signifi-
cant omission since Linenschmidt had never previously
seen fit to file charges against an employee.
Second, as must now be obvious, Holterhoff's late
August, early September position on the out-of-work list
warranted his referral to the Employer in the ordinary
course of dispatching. By contrast, Morrow was so low
on that list that he would not have been dispatched to
Resolution Plaza in September , although it is not clear
whether or not he might later have been dispatched
there in the ordinary course of dispatching.
Third, while the internal charges against Morrow and
Holterhoff listed violations of both bylaw 57 and bylaw
78, litigation regarding past practice was confined to
bylaw 78. Morrow had served in various capacities for
Respondent from July 1979 to June 1985, including trial
board member. Asked during direct examination if he
had heard of any other glaziers being charged with vio-
lating bylaw 78, Morrow flatly asserted: "I have no
knowledge of any member ever being brought up on
charges-on those charges since 1979." When this same
topic was probed during cross-examination , Morrow an-
swered in a manner showing that he plainly had intended
the earlier answer to apply to all members, not simply
those who are classified as glaziers : "I made the state-
ment to my recollection I don't recall any during my
term of anybody being charged for that violation [bylaw
78]."
However, Respondent's records plainly disclose a
number of members who had been charged with violat-
ing bylaw 78 between 1979 and 1985. In most instances,
that by law was but one of several by law violations that
had been charged. Nevertheless, in 1983 Virgil Grant
was alleged to have violated only bylaw 78. Although
that charge was ultimately vacated, the trial board initial-
ly imposed a $100 fine on Grant for that violation.
Most of the individuals named in the charges occupied
classifications other than that of glazier, such as painter,
floor coverer, or drywall taper. But Morrow conceded,
when shown the documentation, that Dennis Black-
charged with having violated bylaws 78, 98, 100, and 101
in January 1984-is a glazier. In an apparent effort at
damage control, Morrow ultimately testified that in his
opinion bylaw 78 did not apply to most of these cases,
including the one pertaining to Black, because they in-
volved situations where those employees had been work-
ing for nonsignatory contractors. Thus, employees could
not have been dispatched to those contractors. However,
he did not specifically testify that he had not been aware
of the charges brought against those employees. Nor did
he explain why he had initially claimed that, since 1979,
no members, save for Holterhoff and himself, had ever
been charged with violating bylaws 78.
Fourth, as set forth above, Trosclair asserted that he
had been unwilling to permit glaziers to work for the
Employer before ensuring that the latter was bound to
the terms of Respondent's standard contract. But Re-
spondent's own records contradict that assertion. In a
telephone conversation with an official of Respondent's
International, Trosclair had learned that the Employer
might be bound to the contract of Respondent's sister
local in Minneapolis. That contract did contain a provi-
sion that bound signatory employers to observe contracts
of sister locals, such as Respondent, in whose jurisdiction
those employers worked. Trosclair telephoned the Min-
neapolis local to verify that the Employer was a signato-
ry to its contract. However, he was unable to obtain an
immediate response.
Ultimately, and Trosclair received confirmation it in
the form of a "PHONE MEMO" recording from Minne-
apolis that the Employer was signatory to the contract
there. This memo was prepared by one of Respondent's
secretaries who dated it "9-5-86." There is no dispute
about the accuracy of that date. Yet, Respondent's own
employment list shows that three glaziers had been dis-
patched to the Employer on September 4, the day before
the call from Minneapolis. In fact, the referral slip for
one of them bears the date "9-3-86," although that date is
not established to have been accurately recorded. Nor
did that glazier, James Huber, appear to testify that it
had been the correct date on which he actually had re-
ceived the referral.
PAINTERS LOCAL 1140 (HARMON CONTRACT)
It cannot be doubted that Trosclair had been con
cerned about whether the Employer was bound to ob
serve the terms of Respondents contract He would not
have called Minneapolis unless he had harbored that con
cern However, the referral records refute any conten
tion that his concern had risen to the level of unwilling
ness to refer glaziers to the Employer before actually re
ceiving confirmation that the Employer was party to a
contract with the Minneapolis local
Fifth, Pehlivanian admitted that he had not contacted
Respondent's hall to request referral of Morrow and
Holterhoff before they had actually started work on Sep
tember 3 As a consequence, Respondent correctly con
tends that the contractual referral procedure had been ig
nored For, as discussed above, even pursuant to the his
torical hustling practice, an employer would ordinarily
have called to request referral of the glazier(s) who had
been hired directly
Further, under the contract it appears that the Em
ployer would not have been able to request employees
by name Of the two above described exceptions to ordi
nary referral preference, the first-allowing requests by
name of previously laid off or terminated employees-is
not applicable to the Employer It had never worked in
Respondert s jurisdiction and obviously, could never
have previously laid off nor terminated a glazier there 5
The second exception is not one that grants an entitle
ment to employers Rather on its face, it accords a pref
erence to employees if they are registered on the em
ployment list and have worked within the preceding 6
months for an employer whose employees are in the bar
gaining unit Both Morrow and Holterhoff appear to
have qualified for this preference But there is no evi
dence that either one of them ever advanced it to Re
spondent s officials as a basis for being referred to the
Employer Instead they relied solely on the historic
practice to justify continued employment at Resolution
Plaza Moreover, invocation of that preference contem
plates an employer request for referral of glaziers Of
course that did not occur before Morrow and Holter
hoff started working for the Employer on September 3
Sixth in the course of litigation evidence was ad
duced regarding out of order dispatches for individuals
designated as foreman and steward There is no allega
tion that Respondent violated the Act in doing so Nor
were these topics litigated in any detail On the basis of
this record they have no relevance within the meaning
of Fed R Evid 401 to the issues posed by the complaint
Regarding to foremen article 8 01 of the contract pro
vides Head Foreman will be specifically designated by
the Employer and the Local Union so notified Nothing
refutes the testimony that this article permitted employ
ers to request the individuals who would serve as fore
man
With respect to stewards, article 10 01 of the contract
states The Local Union shall have the authority to ap
point or select a Shop Steward The General Counsel
contends that this language obliges Respondent to
5 Consequently there is validity to Trosclair s articulated protest
against permitting a new contractor to request employees by name under
the new contractual procedure
731
choose its steward from the employees dispatched in the
normal order of referral But the language of article
1001-which allows Respondent to appoint as an al
ternative to select -does not mandate such an interpre
tation On its face, the language appears to permit selec
tion of a worker lower on the list but better qualified
than those registered above That Respondent is con
cerned with the choice of individuals chosen as stewards
is amply shown by glazier Jay Grahams testimony He
referred to classes conducted for employees who wish to
be stewards and to the fact that successful completion of
them leads to issuance of certification as steward Only
recently the United States Court of Appeals for the
Second Circuit acknowledged the significance of steward
selection when it stated in Kudla v NLRB, 821 F 2d 95
100 (1987)
As a general rule, unions are vested with the
right to select their own representatives for collec
tive bargaining Therefore, unions have a pre
sumptively legitimate and substantial interest in ap
pointing shop stewards who most effectively will
administer the contract in the union s interest [Cita
tions omitted ]
Therefore, of themselves, out of order referral of fore
men and stewards do not, on this record serve to show
inconsistent practice under Respondents contractual re
ferral procedure
Finally in contrast to his testimony regarding employ
ees barred from further employment at locations where
they had obtained work directly Trosclair did furnish a
specific past example where Respondent had compelled a
newly arrived contractor to place an open call for gla
ziers He testified that such a procedure had been fol
lowed when MacFarlane had commenced work on the
Loussac Building in January Holterhoffs testimony con
cerning this particular project had its own independent
significance
Holterhoff had worked as a glazier on the Loussac
Building project Initially he testified that his referral
had been requested by MacFarlane, thereby inferentially
contradicting Trosclair s assertion that MacFarlane had
been required to place an open call for glaziers at that
site But this apparent contradiction was subsequently
nullified by other testimony given by Holterhoff For,
when he was questioned concerning his status on the dis
patch list at the time MacFarlane sought to have glaziers
dispatched the following testimony was elicited
Q Isn t it true at that stage there was nobody
else on the hiring hall list You were about it on the
hiring hall list at that
A There was a few left on it yes
Q But basically you were the guy on the hiring
hall list?
A They hired more after I went to work
Q I in talking about then sir when you got this
job? You got a dispatch to this job and you were
about the only guy left on the hiring hall list?
A About yes
Q And Mr whoever it was, called down and
said I want Jerry Holterhoff and there was no prob
732 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lem with that because you were about the only
person available?
A. Yes, he called me up, yeah.
Moreover, Holterhoff ultimately conceded that "possi-
bly" all other glaziers working there had been referred
from the out-of-work list:
Q. Let me ask you this about the MacFarlane
job. The other peopleon that job were all open-call,
were they not?
A. I don't think so.
Q. Well, sir, in your statement, again, didn't you
say that-I mean, just reading it again-you went
down to the Loussac Building, or Library, et
cetera, et cetera.
A. Oh, you mean-okay, yeah, okay.
Q. I believe all the others went out on open call.
To that job?
A. I can't testify to that, but yes, possibly.
C. Analysis
It was my impression when they testified that the prin-
cipal witnesses-Morrow, Holterhoff, Trosclair, and
even Pehlivanian to some extent-were not being fully
candid. Instead, each appeared to be adding to and sub-
tracting from accounts of events in an effort to fortify
the side that he favored and to undermine the opposing
side. A review of the evidence serves only to reinforce
that impression. For example, Holterhoff admitted that
Trosclair had said on September 2 that the employment
list would be the source of glaziers for the Employer's
Resolution Plaza project. But Morrow omitted this state-
ment from his description of Trosclair's words during
that conversation. Similarly, Morrow initially omitted
any mention of Linenschmidt having made that same
statement in the course of their conversation the follow-
ing morning . In fact, he first denied that Linenschmidt
had made such a statement at that time . When shown his
pretrial affidavit contradicting that denial, he conceded
that Linenschmidt did, in fact, did say that glaziers for
the Employer would come from the top of the list.
Morrow claimed that Pehlivanian had telephoned Re-
spondent's hall early on September 3 and had specifically
requested that Morrow and Holterhoff be dispatched to
Resolution Plaza. However, Pehlivanian did not cor-
roborate that testimony. Instead, he testified, ultimately,
that not until September 4-the day after Linenschmidt
and Trosclair had visited Resolution Plaza and protested
the presence of Morrow and Holterhoff there-had he
telephoned the hall to request that Morrow and Holter-
hoff be dispatched. Furthermore, Morrow initially assert-
ed flatly that he had never heard of anyone being
charged with violating bylaw 78. But Respondent pro-
duced a number of charges that included alleged viola-
tions of that bylaw. All of them had been filed during
Morrow's tenure as an officer of Respondent and, more
specifically, as a member of its trial board. Morrow did
not then claim that he had been unaware of those
charges. Instead , he argued about their propriety in the
circumstances under which each of them had been filed.
But, of course, that did not change the fact that their ex-
istence directly contradicted his earlier contention that
no member had ever been charged with violating bylaw
78, save for Holterhoff and himself.
Holterhoffs willingness to color facts was shown most
graphically when he attempted to establish that MacFar-
lane, then a contractor new to working in Alaska, had
not been required to hire glaziers from the employment
list. At first he claimed that he had been freely dis-
patched when MacFarlane had requested him by name.
Yet, intensive questioning led him to ultimately admit
that he had been about the only available employee on
the employment list at that time. Thus, regardless of the
form of the request, Respondent had no choice but to
refer him . Moreover, he conceded , as he had stated in
his pretrial affidavit , that possibly all other employees
who had worked for MacFarlane "went out on open
call."
It was logical for Trosclair to have been concerned
that employers be bound to observe Respondent's con-
tract . But Respondent 's own records refute Trosclair's
testimony that his concern had led him to oppose em-
ployment of any glazier , specifically Morrow and Hol-
terhoff, at Resolution Plaza before confirming that the
Employer was bound to Respondent 's contract by virtue
of a contract with the Minneapolis local. To the con-
trary, Respondent had been willing to permit glaziers to
work for the Employer before confirming the existence
of that obligation.
This lack of candor by these witnesses makes it diffi-
cult to conclude what did occur here , beyond the fact
that Morrow and Holterhoff directly secured employ-
ment with the Employer , the further fact that Respond-
ent secured their removal from that employment and, fi-
nally, that Respondent penalized them by barring them
from further referral to Resolution Plaza and by subject-
ing them to internal union charges. In fact , Trosclair's
lack of candor is especially significant . For it is presumed
that a labor organization acts illegally any time that it
causes an employee's discharge , absent an affirmative
showing that its conduct was motivated by lawful con-
siderations unrelated to statutory employee rights or to
other concerns protected by the Act. Glaziers Local 558
(PPG Industries), 271 NLRB 583, 585 ( 1984). Since he
had been the official who made most, if not all, of the
decisions affecting Morrow and Holterhoff, Trosclair's
state of mind is the crucial subject of analysis. See, e.g.,
Advanced Installations , 257 NLRB 845, 854 (1981), enfd.
sub nom . NLRB v. Advanced Installations, 698 F . 2d 1231
(9th Cir. 1982).
As stated in section III, A , above, the allegations in
the complaint do not place in issue Respondent 's refusal
to refer Morrow and Holterhoff on September 2 and 3.
Nor does it allege that Respondent violated the Act by
causing their terminations at Resolution Plaza on Sep-
tember 3. Nevertheless , it is necessary to analyze these
events because they form a background to what oc-
curred thereafter.
The court stated in : Radio Officers' v. NLRB, 347 U.S.
17, 40 (1954). "The policy of the Act is to insulate em-
ployees' jobs from their organizational rights." Obviously
that insulation is pierced by the existence of a hiring hall.
Nevertheless , hiring halls do not constitute a per se vio-
PAINTERS LOCAL 1140 (HARMON CONTRACT)
lation of the Act Teamsters Local 357 v NLRB 365
U S 667 675 (1961) However, their operation is subject
to scrutiny as it is governed by the proscriptions Section
8(b)(1)(A) and (2) of the Act that regulate labor orgam
zations generally
Section 8(b)(1)(A) of the Act prohibits labor organiza
tions from restraining or coercing employees in the exer
case of rights guaranteed in Section 7 of the Act Section
8(b)(2) of the Act, to the extent pertinent in this case
prohibits caus[ing] or attempt[ing] to cause an employer
to discriminate against an employee in violation of sub
section (a)(3) As a result two theories are utilized
under the Act to measure the legality of hiring hall oper
ations The first is rooted in the normal proscription of
discrimination Thus [Sections] 8(a)(3) and 8(b)(2) were
designed to allow employees to freely exercise their right
to join unions, be good, bad or indifferent members or
abstain from joining any union without imperiling their
livelihood Ibid As these words make plain the prohib
ited discrimination is not confined to that which distin
guishes between union members and nonmembers
Rather, it encompasses, as well, discrimination that is
practiced between employees within one of these groups
For example, a violation occurs where discrimination is
practiced, in order to retaliate against [an] employee for
protesting the Union s policies questioning the official
conduct of Union agents or incurring the personal hos
tility of a Union official Local 594 Auto Workers Y
NLRB 776 F 2d 1310, 1314 (6th Cir 1985) See also,
H H Robertson Co, 263 NLRB 1344 fn 12 1356-1357
(1982) and cases cited therein
The second theory under which the Act can be violat
ed occurs when the hiring hall is operated in a manner
that is unreasonable arbitrary and invidious For it is
an unfair labor practice in violation of [Secs ] 8(b)(1)(A)
and 8(b)(2) for a bargaining representative to act in an
unreasonable arbitrary or invidious manner in regard to
an employees employment status (Citations omitted )
NLRB v Iron Workers Local 433, 600 F 2d 770 777 (9th
Cir 1979) The significant difference between these two
theories is that the first one contemplates a showing of
motive that is discriminatory and under the second
theory [n]o specific intent to discriminate on the basis
of union membership need be shown Id
In this case Respondents standard contract sets forth
a hiring procedure in Section 5 04 Subject to the two
exceptions described above, that procedure provides for
referral in order of registration from the employment list
However due to an abundance of work for glaziers in
Alaska historically that contractual procedure had been
ignored Instead, individual glaziers had been permitted
to secure jobs through direct contacts with employers
who later requested that those employees be referred by
Respondent But by August the employment situation
had reversed there was a shortage of jobs and an abun
dance of unemployed glaziers
By the time that the Employer began work Respond
ent had made a decision to cease following the historic
practice, reverting to the employment list as contemplat
ed by article 5 04 of the contract In his brief counsel for
the General Counsel argues that the change had been
made either because Trosclair was attempting to retaliate
733
against Morrow and Holterhoff by depriving them of
employment or alternatively that the change was unrea
sonable arbitrary and invidious The absence of an alle
gation to this effect in the complaint would suffice to dis
pose of these arguments Beyond that they simply do
not withstand analysis
With respect to the discrimination theory Trosclair
never did testify precisely when he had made the deci
Sion to follow the employment list However it is clear
that that decision had been made by August 28-the date
on which Holterhoff admittedly had been told by Lin
enschmidt that the list would be observed for that
project There is no evidence that any of Respondent s
officials had become aware by August 28 that Holterhoff
was being considered for employment at Resolution
Plaza The latter conceded specifically that he had not
mentioned to Linenschmidt that Morrow had been talk
ing with the Employer about employment for the two
glaziers Indeed, prior to August 28 Holterhoff had been
arguing to Linenschmidt that Respondent should follow
the list instead of permitting the Employer to directly
select and request glaziers to work at Resolution Plaza
Regarding Morrow the evidence is too sparse to sup
port an inference that Respondent likely would have
known that the Employer intended to hire him Only
two facts exist that would permit such an inference to be
drawn First, in mid August Morrow asked Linensch
midt for the Employers Seattle telephone number But
Morrow did not claim that he had given Linenschmidt a
reason for the request The Employer operates in several
states Even had Linenschmidt suspected that Morrow
intended to seek employment with it nothing in Mor
row s description of his conversation with Linenschmidt
warrants an inference that the latter would naturally
have concluded that Morrow intended to seek that em
ployment in Alaska More significantly over a week
later-on August 25 when he spoke with Holterhoff-
Linenschmidt had said that the Employer would be per
mitted to request employees by name Accordingly even
had Linenschmidt suspected, based on the telephone
number request that Morrow intended to seek employ
ment with the Employer at Resolution Plaza that suspi
cion obviously did not generate sufficient concern for
Respondent to replace direct requests for glaziers with
the employment list
Second as described in section III B above Morrow
claimed that he had been seen on Resolution Plaza s
second story by Trosclair on August 27 while engaged
in conversation with two of the Employers officials
Trosclair denied having seen Morrow while there that
day As concluded above Morrow was not a credible
witness No Employers official appeared as a witness to
corroborate this account of Trosclair s purported obser
vation nor for that matter of the conversation purport
edly then in progress on the second story Nothing in
Morrow s description of itself make it likely that Tros
clair would actually have seen Morrow in the course of
a momentary glance upward assuming even that such a
glance had occurred In sum, there is no credible basis
on which it can be inferred that Trosclair saw Morrow
at Resolution Plaza on August 27
734 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
However that does not end the matter Trosclair ad
mitted having seen Morrow s truck at Resolution Plaza
that day But that fact, alone, does not warrant the ulti
mate inference that Respondent would likely have made
the decision to insist that the Employer hire only from
the employment list To draw that inference would re
quire that four subsidiary assumptions be made First, it
would have to be assumed that Trosclair would likely
have realized that Morrow was actually on the Resolu
tion Plaza site meeting with the Employers officials-as
opposed to meeting with officials of some other employ
er there or, indeed, as opposed to having simply parked
the truck there while he conducted business elsewhere in
the surrounding downtown Anchorage area Second, it
must be assumed that Trosclair would likely have real
ized that if Morrow were meeting with the Employer s
officials, such a meeting would involve employment at
Resolution Plaza-as opposed to being concerned with
employment elsewhere or, indeed, with a matter unrelat
ed to employment altogether Third, it would have to be
assumed that Trosclair would likely conclude that the
Employer would naturally be inclined to hire Morrow-
as opposed to simply noting his application while making
no definite plan to select him for employment Finally, it
must be assumed that Trosclair would then have been
disposed to change a settled procedure, in a fashion of
fecting every glazier who works in Alaska simply to
frustrate the possibility that Morrow might garner work
with the Employer
To use the lone fact that Morrow s truck was parked
at Resolution Plaza as a launching pad for concluding
that Respondent had been discriminatorily motivated in
requiring the Employer to obtain glaziers from the em
ployment list so that Morrow and Holterhoff might be
precluded from working, is to exceed the logic of infer
ence and to enter the realm of speculation So many un
derlying assumptions must be made to reach that conclu
sion on the basis of that single fact that like pillars of
sand leaning against each other for support they im
plode rather than buttress
In contrast, the evidence is clear that there was no
longer the abundance of work that had led to the histor
is disregard of the employment list as the basis for refer
ral Instead, there were a number of unemployed glaziers
and as Holterhoff's testimony shows some of them were
not reluctant to voice their opinion that the list should be
followed in staffing at Resolution Plaza Of course anti
cle 5 04 of the contract contemplates following that pro
cedure in supplying glaziers to employers Moreover the
decision to resume using it was made on or before
August 28-before Morrow and Holterhoff had actually
started working for the Employer and, indeed before
there had been a definite commitment made to hire them
Further, Respondent had earlier begun using the list as
demonstrated by Holterhoff's experience at MacFarlane
and by his August 25 reference to the SOHIO project In
these circumstances the evidence is not sufficient to es
tablish that Respondent was discriminatorily motivated
in deciding to follow the employment list rather than
permit unemployed glaziers to directly contact the Em
ployer for jobs
Nor can it be concluded that insistence on following
the employment list constituted unreasonable arbitrary,
and invidious conduct By way of background , objective
criteria must be followed in operating hiring halls See,
e g Plumbers Local 619 (Bechtel Corp ) 268 NLRB 766,
767 (1984) But there is no ' requirement [in Board law]
that referral rules be incorporated in a contract Iron
Workers Local 1505 (Snelson Anvil) 275 NLRB 1113
(1985) Indeed there is no requirement at all under the
Act that referral criteria be embodied in written form
That is, "it is conceivable that a union could prove by
means of other evidence that it had consistently used ob
jective standards for the referral of employees without
having established any written rules or kept any written
records Laborers Local 394 (BCA of New Jersey), 247
NLRB 97 fn 2 (1980)
More to the point , nothing in the Act mandates that,
once established , referral criteria be maintained without
change Even written procedures can be altered so long
as the labor organization ' demonstrates that its action
is necessary to its effective performance of its repre
sentative function IATSE Local 41 (Theater of the
Stars), 278 NLRB 89, 91 (1986) Here , the change was
from an extra contractual , unwritten one to a procedure
that complies with Respondent 's standard cortract It
was a change occasioned by declining employment op
portunities resulting from economic conditions That is a
valid objective criterion It is of no consequence that em
ployees who formerly could have obtained immediate
employment directly must now wait their turn Respond
ent is the representative of all glaziers and 'one cannot
overlook the fact that , as employment declines, one reg
istrant 's established right to referral operates to another
registrants prejudice Electrical Workers IBEW Local
592 (United Engineers & Construction) 223 NLRB 899
901 (1976) Consequently there is no basis for concluding
that when it reverted to the employment list Respondent
acted unreasonably arbitrarily and invidiously
However hiring hall changes are accompanied by a
corresponding obligation There is a statutory duty to
give applicants for employment adequate notice of
hiring hall procedures Electrical Workers IBEW Local 11
(Los Angeles NECA) 270 NLRB 424 426 (1984) Ac
cordingly a failure to give timely notice of a significant
change in referral procedures [is] arbitrary and in breach
of the duty to represent job applicants fairly by keeping
them informed about matters critical to their employ
ment status Operating Engineers Local 406 (Ford Bacon
& Davis), 262 NLRB 50 , 51 (1982), enfd 701 F 2d 504
(5th Cir 1983)
The Board has not defined what it means by ade
quate or timely notice to applicants of referral proce
dure changes Seemingly no hard and fast rule can be
formulated due to the diversity of situations that can
exist For example employees using Respondents hiring
hall live and work throughout the State of Alaska As a
result many come to the hall infrequently In fact, there
is no evidence that Morrow had been to the hall during
the month preceding his visit there on September 2 Con
sequently notice fairly calculated to reach most if not
PAINTERS LOCAL 1140 (HARMON CONTRACT) 735
all, applicants in a heavily urbanized setting would not
suffice to reach applicants represented by Respondent
In all situations , presumably notice would be "ade
quate ' if it is given to applicants at the earliest reasona
ble time in the circumstances and, in addition , if it is
given before an employee actually commences work fol
lowing the procedure that has been changed This latter
condition accommodates employee expectations and is
rooted in the recognized distinction between the status of
employees already working and those who have not yet
commenced employment at a particular job "Denial of a
future employment opportunity is not as intrusive as loss
of an existing job Wygant v Jackson , 476 U S 267, 282-
293 (1986) Employees who have not started working
have `no absolute entitlement " to a particular position
and, consequently , denial of such a position unsettle[s]
no legitimate firmly rooted expectation on [their]
part ,' at least not so long as they "[remain] eligible
for other ' positions under the changed procedure John
son v Transp Agency Santa Clara Cty Cal, 107 S Ct
1442, 1455-1456 (1987)
So far as the record discloses , had Morrow and Hol
terhoff abided by the change and sought referral to the
Employer following the employment list, nothing would
have precluded them from dispatch in the ordinary
course of following the list Linenschmidt had told Hol
terhoff about the change during the week preceding the
one in which the latter had started working at Resolu
tion Plaza Consequently, Holterhoff accepted and com
menced employment there with full knowledge of Re
spondent s planned change in historic procedure There
is no basis for concluding that Respondents notice to
him of the change had been other than timely
The timeliness of notice to Morrow is perhaps a closer
question The evidence shows that he knew definitely of
the change in the late afternoon or early evening of Sep
tember 2 At that point he had not actually commenced
working for the Employer There is ample basis for, at
least , suspicion that he knew sooner Holterhoff had been
informed of the change on August 28 He then conferred
with Morrow about working for the Employer In such
circumstances it appears unlikely that Holterhoff would
not have told Morrow that glaziers for Resolution Plaza
were to be selected from the employment list-particu
lady since the course being pursued by Holterhoff and
Morrow was contrary to that procedure
But even assuming that Holterhoff had not repeated to
Morrow what Linenschmidt had said in the circum
stances the September 2 notice to Morrow was sufficient
to be adequate or timely There is no evidence that Re
spondent had been aware prior to that date that the Em
ployer had reached the point where it was ready to put
glaziers to work-admittedly Pehlivanian had not called
Respondent about hiring glaziers until September 4
More specifically there is no evidence that Respondent
should have been on notice that the Employer contem
plated hiring Morrow Further unlike Holterhoff
Morrow had not inquired about the procedure that
would be followed in satisfying the Employer's need for
glaziers, once it actually commenced work In fact, there
is no evidence that Morrow had even come to Respond
ent's hiring hall between mid August and September 2
Thus , Respondent did not have the opportunity to advise
him, as it had Holterhoff, that the employment list would
be observed Once Trosclair was told that Morrow in
tended to work there , Trosclair immediately notified
Morrow that the list would be followed
In sum, Respondent informed Morrow of the change
as soon as he came to the hall and raised the matter of
working for the Employer There is no basis for con
cluding that had he raised the matter sooner with Re
spondent Morrow would not have been told, as Holter
hoff had been told, that the list would be followed By
September 2 the Employer had not yet told Respondent
when it would begin hiring glaziers Nothing in the
record shows that Respondent should have been on
notice that the Employer would begin doing so on that
date As a result , there was seemingly no need prior to
September 2 for Respondent to pursue extraordinary
measures to be certain that all unemployed glaziers,
wherever located in Alaska , be informed that the em
ployment list would be observed once the Employer
needed to employ glaziers In these circumstances, I con
dude that the notice to Morrow and Holterhoff had
been adequate or timely and , accordingly , that Respond
ent's conduct in this regard was not unreasonable, arbi
trary , and invidious
Nor can it be said that Respondent violated the Act
when it insisted that Morrow and Holterhoff cease work
at Resolution Plaza There is nothing unreasonable, arbi
trary and invidious in causing the discharges of employ
ees who circumvent hiring hall procedures See, e g, La
borers (Hood Mason Contractors), 216 NLRB 778 (1975)
Of course, such conduct does violate the Act if it is but a
pretext designed to conceal an underlying motive pro
scribed by the Act But that is not the situation presented
here Here a preponderance of the evidence does not
warrant the conclusion that Respondent acted on an ulte
rior motive in demanding that Morrow and Holterhoff
cease working for the Employer Neither does it support
a conclusion that Respondent would have overlooked
the matter had other glaziers, instead , been discovered
working at Resolution Plaza
As noted above Trosclair advanced several reasons
for having protested Morrow and Holterhoff working at
Resolution Plaza At least one-that Respondent would
not permit glaziers to work there absent assurance that
the Employer was obliged to observe the terms of Re
spondent s contract-was demonstrably false Respond
ent did refer glaziers to the Employer before having se
cured that assurance from Minneapolis But Trosclair s
effort to embellish his testimony does not deprive Re
spondent of its right to fair consideration of those por
tions of his testimony that are supported by other evi
dence That Trosclair might have welcomed the oppor
tunity to deprive Morrow, and perhaps Holterhoff as
well of employment is not the crucial issue presented
here Instead , that issue is whether Respondent acted be
cause of that motive A preponderance of the evidence
leads to the conclusion that it did not do so
Before September 3 Respondent had made a lawful
decision to follow the employment list with respect to
the Employers project That procedure required the
736 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Employer to contact Respondent for glaziers; the Em-
ployer did not do that before putting Morrow and Hol-
terhoff to work. That procedure required observance of
the employment list in referring glaziers to the Employer
and, also, it required that glaziers receive referrals.
Morrow and Holterhoff knowingly disregarded that pro-
cedure; they circumvented it by securing work with the
Employer and by commencing work after being told that
they could not receive referrals because the Employer
had not requested that glaziers be referred and because
the list would be followed in making referrals. As a
result, they furnished Respondent with sufficient cause to
demand that they cease working for the Employer. That
Trosclair may have "welcomed the opportunity to [make
that demand] does not make it discriminatory and there-
fore unlawful." Klate Holt Co., 161 NLRB 1606, 1612
(1966). For, as illustrated by the absence of an allegation
in the complaint respecting an unlawfully motivated
demand for the cessation of work by these two glaziers
at Resolution Plaza, a preponderance of the evidence
"demonstrate[s] that the decision would have been the
same in the absence of protected activity." Wright Line,
251 NLRB 1083, 1087 (1980), enf.'d. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in
NLRB v. Transportation Management Corp., 462 U.S. 393
(1983).
However, a different result is warranted with regard
to the penalties imposed on Morrow and Holterhoff for
having accepted employment with the Employer. Ordi-
narily the Board will not scrutinize penalties imposed
upon employees who attempt to circumvent hiring halls.
However, it will do so where penalties are imposed for
reasons illegitimate under the Act. Boilermakers Local 40
(Envirotech Corp.), 266 NLRB 432, 433 (1983); Long-
shoremen's Local 1408 v. NLRB, 705 F.2d 1549 (11th Cir.
1983). Here, a preponderance of the evidence supports
the allegation that, in effect, Trosclair seized on Morrow
and Holterhoffs conduct as a springboard for retaliation
proscribed by the Act.
Respondent's records show that employees have regu-
larly been charged with violating Respondent's bylaws
by accepting employment without First securing referrals.
However, there is no evidence that any officer or panel,
other than the trial board, ever imposed penalties against
those employees. Nor is there evidence that any employ-
ees whose cases were considered by the trial board, ever
suffered the penalty of being barred from employment
with a particular employer nor at a particular site. To
the contrary, by its very terms, bylaw 78 imposes no
penalty other than internal charges and discharge for its
violation. But here Trosclair went beyond that provision:
on his own, he barred Morrow and Holterhoff from
future employment at Resolution Plaza.
Trosclair claimed that as business manager he had pos-
sessed inherent authority to impose penalties and, in fact,
had done so in the past. But he was not able to describe
a single, specific instance , nor even the name of a single
employee involved in any incident, where Respondent's
business manager, rather than its trial board, had imposed
such a penalty-or, for that matter, any penalty on an
employee. Nor did Trosclair identify with any specificity
the source of Respondent's business manager's purported
inherent authority to impose penalties on employees for
violating the bylaws. To the contrary, Respondent's
records show that the only procedure followed in such
cases had been for internal charges to be filed and for
the trial board to conduct a hearing to determine if pen-
alties should be imposed.
In the final analysis Trosclair never did testify precise-
ly why he had selected a bar from further employment
as the penalty to impose in this situation. Nothing in the
record supports a conclusion that employees discharged
from a site pursuant to bylaw 78 are ordinarily then
barred from further referral to that site. The record dis-
closes no unusual circumstances requiring Trosclair to
preempt that bylaw and take extraordinary action against
Morrow and Holterhoff. One could speculate that Tros-
clair acted as he did because of the flagrancy displayed
by Morrow and Holterhoff in starting work after having
been told that they could not do so. But, "Board law
does not permit the trier of fact to substitute his own
subjective impression of what he would have done were
he in Respondent's position." Super Tire Stores, 236
NLRB 877 fn. 1 (1978). Trosclair did not testify that the
flagrancy of Morrow and Holterhoff's conduct had moti-
vated him to erect the bar against referral to Resolution
Plaza. Even were I disposed to find that the flagrancy of
the two glaziers' conduct could warrant extraordinary
action by Respondent' s business manager, " [a] judge's
personal belief that . . . legitimate reason was sufficient
to warrant the action taken is not a substitute for evi-
dence that Respondent would have relied on this reason
alone." Delta Gas, Inc., 282 NLRB 667 (1987).
It is clear that Trosclair disliked Morrow. So far as the
evidence shows, the sole reason for that animosity had
been Morrow's protected action aimed at correcting
what he perceived as Trosclair's improper actions as
business manager. "We do not believe that the intent or
purpose of the amended Act is to foreclose employees
from questioning the wisdom of their representatives or
from taking such steps as they deem necessary to align
their union with their position." Nu-Car Carriers, 88
NLRB 75, 76 (1950), enfd. 189 F.2d 756, 760 (3d Cir.
1951), cert. denied 342 U.S. 919. See also Lummus Co. v.
NLRB, 339 F.2d 728, 733-734 (D.C. Cir. 1964).
Holterhoff claimed that he too had incurred Tros-
clair's hostility as a result of intraunion disagreements.
Trosclair denied having been antagonistic toward Holter-
hoff. However, this is a disagreement that need not be
resolved. Trosclair admitted believing that Holterhoff
was "being led." He did not identify a leader and the
only one suggested by the evidence is Morrow. Action
against Holterhoff based on a belief that he had been fol-
lowing Morrow's leadership in protected activity violates
the Act. See, e.g., Henning & Cheadle v. NLRB, 522 F.2d
1050, 1052 (7th Cir. 1975), and cases cited therein. More-
over, since Holterhoff and Morrow acted together in ac-
cepting employment and working at Resolution Plaza, it
simply would not have been possible to take action
against one without also taking it against the other as
well. Action against Holterhoff intended to validate or
vindicate retaliatory action taken against Morrow would
PAINTERS LOCAL 1140 (HARMON CONTRACT) 737
violate the Act See e g Armcor Industries 217 NLRB
358 (1975)
In the instant case Trosclair disliked Morrow because
of the latter s protected activity Because Morrow and
Holterhoff had begun working for the Employer without
having obtained referrals Trosclair barred them from
further employment at Resolution Plaza There is no evi
dence of such a penalty having ever been imposed by
Respondent There is no evidence that Trosclair or any
other business manager of Respondent, as opposed to the
trial board, ever had imposed a penalty against a member
of Respondent The record discloses no valid reason that
might have justified Trosclair's preemption of the trial
board in this instance He advanced no reason for having
decided to select the penalty of barring referral to Reso
lution Plaza Therefore, a preponderance of the evidence
warrants the conclusion that Trosclair used the fact that
Morrow and Holterhoff began work for the Employer as
a springboard for retaliation because of protected activi
ty
A somewhat closer question is presented by the in
traunion charges filed against Morrow and Holterhoff by
Linenschmidt Certainly, it was not unprecedented for
internal charges to be filed against employees for having
failed to secure referrals before commencing work How
ever it is unprecedented for Linenschmidt to have done
so Indeed he had never filed a charge of any type
against any of Respondents members In assessing alle
gations that conduct directed against employees had been
unlawfully motivated the crucial inquiry must be direct
ed to the state of mind of the official who had made the
decision to effectuate that conduct Advanced Installa
tions However, Respondent did not call Linenschmidt as
a witness to explain why he had selected this occasion as
the one for him to first file charges against members
Nor did Respondent explain why it had not called him
to make that explanation He remained an agent of Re
spondent at the time of the hearing Respondent did not
contend that it could not have issued a subpoena to
ensure that he would be present to testify In these cir
cumstances, it may be inferred that [Linenschmidt], if
called, would have testified adversely to Respondent on
[this] issue International Automated Machines, 285
NLRB 1122 1123 (1987)
As concluded above Trosclair had been unlawfully
motivated when he had barred Morrow and Holterhoff
from dispatch to Resolution Plaza At the same time that
they were notified of that fact, they were also notified of
the internal charges preferred against them by Linensch
midt Trosclair admitted having conferred with Lin
enschmidt regarding preparation of those charges While
Trosclair claimed that he had rendered only ministerial
assistance to Linenschmidt, the latter did not appear to
corroborate that claim nor to explain why he had
chosen to file charges against the two glaziers In these
circumstances the General Counsel has established a
prima facie case and Respondent has presented no credi
ble evidence to rebut it Therefore a preponderance of
the evidence established that the filing of these charges
had been unlawfully motivated and violated Section
8(b)(1)(A) and (2) of the Act
CONCLUSIONS OF LAW
By barring Bennie Morrow and Gerald Holterhoff
from referral to Harmon Contract Glazing Inc s Resolu
tion Plaza project and by filing internal charges against
them in retaliation for protected activity, Painters Local
Union No 1140 of the International Brotherhood of
Painters and Allied Trades, AFL-CIO violated Section
8(b)(1)(A) and Section 8(b)(2) of the Act and committed
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act
REMEDY
Having found that Painters Local Union No 1140 of
the International Brotherhood of Painters and Allied
Trades, AFL-CIO engaged in certain unfair labor prac
tices, I shall recommend that it be ordered to cease and
desist therefrom In addition it shall be ordered to take
certain affirmative action to effectuate the policies of the
Act, including removing from its files all reference to the
internal union charges filed against Bennie Morrow and
Gerald Holterhoff in September 1986 It shall also be or
dered to make Morrow and Holterhoff whole for any
loss of pay they may have suffered because they were
unlawfully barred from further employment with
Harmon Contract Glazing Inc at Resolution Plaza 6 on
and after September 4, 1986' Backpay shall be comput
ed on a quarterly basis, making deductions for interim
earnings, F W Woolworth Co 90 NLRB 289 (1950),
and interest shall be paid on the amount owing as com
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987) 8
[Recommended Order omitted from publication ]
8 Inasmuch as the employment bar extended only to that project and in
view of the fact that the project was concluded in March 1987 there is
no issue presented concerning efforts to have Morrow and Holterhoff re
employed there by Harmon Contract Glazing
° It is clear that but for Trosclair s action Holterhoff would have been
dispatched in September to Resolution Plaza A similar conclusion is not
warranted regarding Morrow who was registered much lower on the
employment list However there might have come a later time when he
would have been referred there in the ordinary course Whether or not
that is so can be resolved in the compliance phase of this proceeding
See e g NLRB v Stage Employees IATSE Local 776 303 F 2d 513 521
(9th Cir 1962) cert denied 371 U S 826
The General Counsel also seeks inclusion of a visitatonal provision
in the remedial order However the Board has not ordinarily provided
for inclusion of such a provision as a remedy nor has it formulated any
guidelines for inclusion of such provisions in remedial orders Moreover
nothing in this case appears to give rise to the concerns that would war
rant inclusion of such a provision Accordingly I deny the General
Counsel s request for its inclusion as part of the remedial order
8 Under New Horizons interest is computed at the short term Federal
rate for the underpayment of taxes as set out in the 1986 amendment to
26 U S C Sec 6621 Interest accrued before 1 January 1987 (the effective
date of the amendment) shall be computed as in Florida Steel Corp 231
NLRB 651 (1977)